Ominous When Bloggers Bring Out The Nuremberg Code

Max Fisher at The Atlantic with the round-up

James Risen at NYT:

Medical professionals who were involved in the Central Intelligence Agency’s interrogations of terrorism suspects engaged in forms of human research and experimentation in violation of medical ethics and domestic and international law, according to a new report from a human rights organization.

Doctors, psychologists and other professionals assigned to monitor the C.I.A.’s use of waterboarding, sleep deprivation and other “enhanced” interrogation techniques gathered and collected data on the impact of the interrogations on the detainees in order to refine those techniques and ensure that they stayed within the limits established by the Bush administration’s lawyers, the report found. But, by doing so, the medical professionals turned the detainees into research subjects, according to the report, which is scheduled to be published on Monday by Physicians for Human Rights.

The data collected by medical professionals from the interrogations of detainees allowed the C.I.A. to judge the emotional and physical impact of the techniques, helping the agency to “calibrate the level of pain experienced by detainees during interrogation, ostensibly to keep it from crossing the administration’s legal threshold of what it claimed constituted torture,” the report said. That meant that the medical professionals crossed the line from treating the detainees as patients to treating them as research subjects, the report asserted.

Nick Baumann at Mother Jones:

According to the report, which draws on numerous declassified government documents, “medical professionals working for and on behalf of the CIA” frequently monitored detainee interrogations, gathering data on the effectiveness of various interrogation techniques and the pain threshholds of detainees. This information was then used to “enhance” future interrogations, PHR contends.

By monitoring post-9/11 interrogations and keeping records on the effectiveness of various techniques, medical professionals could also provide Bush administration lawyers with the information they needed to set guidelines for the use of so-called “enhanced” interrogation tactics. For instance, attorneys in the Justice Department’s Office of Legal Counsel (OLC) who were devising the legal rationale for the interrogation program could use the research to determine how many times a detainee could be waterboarded. Or, based on the observations of the medical personnel monitoring the interrogation sessions, they could assess whether it was legally justifiable to administer techniques like stress positions or water dousing in combination or whether these methods needed to be applied separately.

Physicians for Human Rights makes the case that since human subject research is defined as the “systematic collection of data and/or identifiable personal information for the purpose of drawing generalizable inferences,” what the Bush administration was doing amounted to human experimentation:

Human experimentation without the consent of the subject is a violation of international human rights law to which the United States is subject; federal statutes; the Common Rule, which comprises the federal regulations for research on human subjects and applies to 17 federal agencies, including the Central Intelligence Agency and the Department of Defense; and universally accepted health professional ethics, including the Nuremberg Code… Human experimentation on detainees also can constitute a war crime and a crime against humanity in certain circumstances.

Ironically, one goal of the “experimentation” seems to have been to immunize Bush administration officials and CIA interrogators from potential prosecution for torture. In the series of legal papers that are now popularly known as the “torture memos,” Justice Department lawyers argued that medical monitoring would demonstrate that interrogators didn’t intend to harm detainees; that “lack of intent to cause harm” could then serve as the cornerstone of a legal defense should an interrogator be targeted for prosecution. In 2003, in an internal CIA memo cited in the PHR report, the CIA’s general counsel, Scott Muller, argued that medical monitoring of interrogations and “reviewing evidence gained from past experience where available (including experience gained in the course of U.S. interrogations of detainees)” would allow interrogators to inoculate themselves against claims of torture because it “established” they didn’t intend to cause harm to the detainees.

Spencer Ackerman at Washington Independent:

Just months after 9/11, the CIA hired two psychologists with experience in a training program to help U.S. servicemembers survive enemy torture, known as SERE, to help design an interrogation program for hard-to-crack al-Qaeda detainees. Those psychologists, Bruce Jessen and James Mitchell, set to work on a detainee in CIA custody, Abu Zubaydah, and under their guidance in the summer of 2002, Abu Zubaydah was waterboarded 83 times. Their work contributed to the establishment of several other interrogation methods not permitted under decades-long understandings of the Geneva Conventions, like keeping a detainee’s body so painfully contorted as to prevent him from falling asleep.

Jim Risen of The New York Times has the CIA’s rebuttal:

“The report is just wrong,” said Paul Gimigliano, an agency spokesman. “The C.I.A. did not, as part of its past detention program, conduct human subject research on any detainee or group of detainees. The entire detention effort has been the subject of multiple, comprehensive reviews within our government, including by the Department of Justice.”

The National Religious Campaign Against Torture emailed reporters a statement on the report: ”These revelations are profoundly disturbing and raise for us the question of what more remains hidden.  The spiritual health of our nation will continue to suffer until the full truth opens a path to the justice and healing that our nation so desperately needs.”

The Center for Constitutional Rights calls on the Obama administration to certify that its new interrogation team, known as the HIG, does not engage in any similar human experimentation:

CCR also demands that the new intra-agency interrogation unit that was disclosed in February 2010 explain the nature of the “scientific research” it is conducting to improve the questioning of suspects. The current government may attempt to take advantage of ambiguity in Appendix M of the Army Field Manual, added by the Bush administration and left in place by the Obama administration, to justify the ongoing use of some “enhanced” interrogation techniques such as sleep deprivation in the new interrogation guidelines. Any ongoing unlawful human experimentation to “perfect” such techniques must immediately cease.

Adam Serwer at Tapped:

According to PHR, these practices violate domestic and international prohibitions against involuntary human experimentation, most ominously the Nuremberg Code, which was put in place after the Holocaust. PHR also contends that the experimentation exposes interrogators and Bush-era officials to additional legal liability because unlike the techniques themselves, the Office of Legal Counsel does not seem to have sanctioned the experimentation as legal.

That doesn’t mean the Bush administration was completely unaware of the possibility that they were breaking the law with their torture experiments. The 2006 Detainee Treatment Act retroactively weakened the definition of involuntary experimentation under the law, criminalizing only those involuntary acts committed “without a legitimate medical or dental purpose, and in so doing endanger[ing] the body or health of such person or persons.”

Naked Capitalism:

If the allegations are true, such experimentation would certainly violate the Nuremberg Code, the Geneva conventions, and the War Crimes Act of 1996.

Nuremberg Code

Among other things, the Nuremberg Code prohibits experimentation conducted without the voluntary consent of the subject. Voluntary consent means:

The person involved should have legal capacity to give consent; should be so situated as to be able to exercise free power of choice, without the intervention of any element of force, fraud, deceit, duress, over-reaching, or other ulterior form of constraint or coercion; and should have sufficient knowledge and comprehension of the elements of the subject matter involved as to enable him to make an understanding and enlightened decision. This latter element requires that before the acceptance of an affirmative decision by the experimental subject there should be made known to him the nature, duration, and purpose of the experiment; the method and means by which it is to be conducted; all inconveniences and hazards reasonable to be expected; and the effects upon his health or person which may possibly come from his participation in the experiment.

Moreover, the Code requires that the subject be allowed to stop the experiment at any time “if he has reached the physical or mental state where continuation of the experiment seems to him to be impossible.”

The Code also requires that “the experiment should be so conducted as to avoid all unnecessary physical and mental suffering and injury.”

Here, the experimentation did not seek consent at any point.  And – rather than limiting pain – the experimentation was specifically conducted as a way to determine how to maximize the pain the subject would experience.

Geneva Convention and War Crimes Act

The Geneva Convention Against Torture provides that “no one may be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”

And the War Crimes Act of 1996, a federal statute set forth at 18 U.S.C. § 2441, makes it a federal crime for any U.S. national, whether military or civilian, to violate the Geneva Convention by engaging in murder, torture, or inhuman treatment. The statute applies not only to those who carry out the acts, but also to those who ORDER IT, know about it, or fail to take steps to stop it. The statute applies to everyone, no matter how high and mighty. Indeed, even the lawyers and other people who aided in the effort may be war criminals; see also this article, this one, and this press release.

The detainees were obviously subjected to torture, cruel, inhuman and degrading treatment, and so both the Convention and the War Crimes Act were violated.

Emptywheel at Firedoglake

Steve Benen:

Of course, the real scandal is that Obama is like Spock and his White House asked a Senate candidate who applied for an administration job if he was still interested.

You see, torture and using detainees in medical research are defensible. “Chicago-style politics” is the real outrage.

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