The Rest of the Story

The New England Journal of Medicine has an open-access article: Bloche MG and Marks JH. Doctors and Interrogators at Guantanamo Bay. N Engl J Med 2005:353(1);6-8 (PDF-593KB). Mr. Marks is a barrister at Matrix Chambers, London, and Greenwall Fellow in Bioethics at Georgetown University Law Center and the Bloomberg School of Public Health.  In lieu of an abstract, they posted the following:

Notice: Because of current public interest in this topic, this Perspective and its accompanying audio interview were published early at www.nejm.org on June 22, 2005. The article will appear in the July 7 issue of the Journal.

As supplementary material, the audio file of an interview with Mr. Marks is here, a 3.3MB MP3.

Early-publication articles at NEJM are almost always worth reading.  In this post, I review the contents of the article briefly, then discuss a recent report by Physicians for Human Rights, then some commentary from the Blogosphere.  I conclude with some thoughts about the ethical issues raised by the NEJM article and the PHR report.

I've written about this subject before (1 2 3).  In fact, the third post was the one that led me to change the background color of The Corpus Callosum to black for about six months.  Why write a fourth post?  The more recent NEJM article provides some new information.  Also, some of the source material I used in those posts is not openly available, but the latest article is.

Mr. Marks and Dr. Bloche document the involvement of psychologists and psychiatrists in Behavioral Science Consultation Teams, known somewhat disarmingly as "Biscuit teams."  The authors focus on two issues.  One, the BSCTs had access to health information that had been collected for the purposes of health care.  Although the Army's policies (source cited in article, here) stress that detainees do not have any right to privacy, and should not be given an expectation of privacy.  Mr. Marks points out that it generally is considered appropriate for health care providers to breach confidentiality, if there is a credible threat to the safety of another person (the Duty to Warn).  However, he draws a distinction between that exception to the general practice of confidentiality, and the complete abandonment of all privacy, which was/is routine at Guantanamo Bay.  He points out that the military's own guidelines dictate that health care providers should not abandon the ethical principles that guide their professional conduct.

The authors provide a link to a military policy document that describes the confidentiality policy.  That policy states explicitly that:

Medical personnel may not, however, become active participants in the collection of information, and may not be tasked in any way for the collection of such information.

They were able to find evidence that the BSCTs in some cases did attend interrogations, and that they helped develop plans for interrogations.  They were, in fact, tasked to develop psychological profiles and to consult with interrogators about how those profiles could be used to extract information from the detainees.  Incidentally, one of the psychologists was mentioned in a Time Magazine article (premium content) as "Maj. L" (Major John Leso).

The NEJM article provides evidence that military health care providers violated the ethical principles that govern their respective professional societies, and that they violated the military's own policy.  At least, they violated one of the military's policies.  They may have acted in accord with other policies that contradict the policy that is openly available.  We actually don't have any way of knowing all of the policies that may have been drafted to cover this situation.

The situation is much more clear with regard to International policies, as well as those put forth by the US State Department.  An organization known as Physicians for Human Rights published an extensive report on the use of extraordinary interrogation methods by US forces: Break Them Down: The Systematic Use of Psychological Torture by US Forces (PDF - 2.5MB).  An excerpt (page 119):

A strong indication of the US interpretation of legal restrictions on torture and cruel, inhuman, and degrading treatment over many years can be found in the annual Country Reports on Human Rights Practices by the US State Department. These reports describe the status of internationally recognized human rights in nearly all countries outside the US. In the 2005 report’s section on torture and other cruel, inhuman, or degrading treatment or punishment, the US government has consistently referred to the use of isolation, sleep deprivation, “humiliations such as public nakedness,” and “being forced to stand-up and sit-down to the point of collapse.”785 The report criticizes Egypt, for example, as having a “systematic pattern of torture”786 and points to stripping prisoners naked and blindfolding them and the use of threats, including threats of rape.787 With respect to Iran, the report criticizes the use of sleep deprivation, “prolonged solitary confinement with sensory deprivation,” and threats of execution.788 The report condemns Libya for threats of attack by dogs and calls them acts of torture.789 Other countries, including North Korea,790 Jordan,791 Pakistan,792 Saudi Arabia,793 and Syria794 are chastised in the report for similar violations of human rights.795 It is evident that these very techniques were approved and systematically used by the United States as methods of interrogation in the “war on terror.”

Break Them Down is an extensively researched document, consisting of 131 pages, containing 846 footnotes.  It includes a review of legal decisions pertaining to psychological torture, and seems, at least to this non-legal-expert, to prove that modern legal thought is contrary to such torture.  The footnotes show where most of the pertinent information of the subject can be found.  This includes references to documents that the US government has used to try to justify the use of torture.  This starts on page 72 of the text, which is the 76th page of the PDF.  They quote Sec. Rumsfeld's oroborusotic statement that:

“The Combatant Commanders shall . . . treat them [detainees] humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Geneva Conventions of 1949.”  [emphasis added] 

The problem with that statement is that the Geneva Conventions state explicitly that military necessity is not a valid rationale for deviating from the dictates of the Conventions.  Therefore, the set of actions, that would be consistent with the Conventions except for military necessity, is empty.  Therefore, Mr. Rumsfeld's statement is brilliantly meaningless.

Blogosphere commentary on this subject appears to be limited.  MNObserver posting at Power Liberal comments upon the Pentagon's indignant response to the allegations:

Nevermind the fact that Dr. Miles is a medical ethicist. Nevermind that he once spent months working with torture victims in southeast Asia in the 1970s as medical director of the American Refugee Committee, and knows torture when he sees it. Nevermind that he still volunteers at the Center for Victims of Torture in Minneapolis. Nevermind that interrogators themselves have said the military doctors' role was to advise them and their fellow interrogators on ways of increasing psychological duress on detainees. Dr. Miles told an inconvenient truth, and watch what is going to happen to him as he publishes his book asking more questions and revealing more inconvenient truths.

Dr. Miles is a US Senator, by the way.  MNObserver was posting after having read a bit up on Norwegianity.  Body and Soul has two pertinent posts.  First is a compare-and contrast exercise with the NEJM article and a contemporaneous NYT article.  Jeanne is troubled by her impression that the NYT article was so much less critical of the practices of the BSCTs:

Conduct contrary to the laws of war is a bit more serious than a vague ethical dilemma, but this is so typical of the corporate press, which, even when it reports on abuses, manages to dance around the direct responsibility of high level officials for that abuse.

Three days later, she reminds us that June 26 is the anniversary of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.  Transparent Grid recalls that the way the BSCTs exploited a prisoner's phobias is reminiscent of Orwell's 1984.  HealthLawProf Blog comments on the NEJM article, concluding:

This article, and the others that follow it, should hopefully help generate some greater discussion about  how we are treating our prisoners abroad and bring about much needed change in policies. 

I think it is sad that they are assuming that more articles will follow.  Neil Lewis, writing at arthur, comments on the issue, titling his post Hippocrates Betrayed.  Moses, posting on Yowling From the Fencepost, comments about the involvement of physicians, rather pointedly:

I am sure it is only to make sure interrogators are modulating the comfort levels of detainees accurately and safely so they don't suffer permanent injury or die.

The attention drawn to this issue has led to calls for an investigation, but the White House is not interested.

White House spokesman Scott McClellan countered that "the Department of Defense has taken these issues head-on and addressed them."

"They continue to look into allegations of abuse. People are being held to account, and we think that's the way to go about this," McClellan said when asked whether the White House would support creation of an independent commission as proposed by Democrats.

The question not asked is this: Given that the health care professionals were specifically tasked for involvement, have any of them, or those who gave them the task, been held to account?

There are many ethical issues raised by the reports of health care professionals participating in interrogations.  Some of these are specific issues that health care professionals should think about: the privacy of medical information, and appropriateness of health care providers adopting a military role.  

For those who would consider participating in a Biscuit Team, there is another issue to think about: the mentors who taught you your profession did so with the expectation that you would use that knowledge and those skills to advance the well-being of patients.  Although there is not a moral obligation to restrict yourself in that way, there is a moral obligation to at least think about the fact that you are betraying those who got you where you are today.

I can anticipate that some readers will be tempted to comment that the exceptional circumstances posed by the Global and Perpetual War On Terror (GAPWOT) would justify deviation from the usual ethical principles governing interrogation methods.  Before you do, however, consider this: the GAPWOT extends to every corner of the globe, and it will never end.  Therefore, the circumstances are not exceptional.  The GAPWOT is the new normal.  The set of things that are both normal and exceptional is empty.  Furthermore, making exceptions to ethical principles is a kind of ethical relativism.  While ethical relativism is not itself objectionable, a detailed analysis is necessary to justify and delimit such deviations.  And once you become an ethical relativist, there is no turning back.