The Ethics of Interrogation: Professional Responsibility in an Age of Terror

Chapter Five: Treating Terrorists: The Conflicting Pull of Role Responsibility

Five Treating Terrorists The Conflicting Pull of Role Responsibility The United States is a country of law, and international human rights laws regarding prisoners cannot be ignored or routinely violated without the active cooperation, or at least acquiescence, of lawyers and physicians, including military lawyers and physicians. —George Annas, “Human Rights Outlaws,” 428 It is in the nature of torture that the two ubiquitously present [professions ] should be medicine and law, health and justice, for they are the institutional elaborations of body and state. —Elaine Scarry, The Body in Pain, 42 We saw in the last chapter how tightly legal analysis of coercive interrogations was tied to medical monitoring and assessment of the health needs of detainees. Interrogation techniques that are arguably abusive were justified, in part, by the fact that doctors would carefully monitor the medical status of detainees who were undergoing such treatment. Medical findings were also used to calibrate coercive interrogations so that long-term, permanent physical damage or death would not result from interrogation techniques.1 Indeed, reading the OMS guidelines together with the Bradbury “Techniques” and “Combined Techniques” memoranda provides a concrete sense of Elaine Scarry’s assertion, quoted in an epigraph above, that medicine and law are destined to be the two ubiquitous professions when a society moves toward the legalization of torture or cruel, inhuman, and degrading interrogation techniques. Lawyers cite the involvement of doctors as evidence that the threshold levels of pain and suffering (in terms of which torture and cruel, inhuman, and degrading treatment are defined) will not be 116 Chapter Five reached, and physicians can be involved in coercive or abusive interrogations because lawyers have defined the EITs as not constituting torture. The mutually reinforcing claims of law and medicine are important here because the profession of medicine, more than that of either psychology or law, has condemned the participation of physicians in torture . Steven Miles has traced the evolution of statements of medical societies and human rights organizations on the role of physicians in the treatment of prisoners in the post–World War II period, and demonstrates both an increasing recognition of the role physicians have played in facilitating torture or cruel, inhuman, and degrading treatment of detainees and the need to put a stop to physician participation in torture.2 For example, below is a list of various statements and proclamations aimed at addressing the role of physicians. • Declaration of Geneva (1948) • World Medical Association, Regulation in Time of Armed Conflict (1956) • Declaration of Tokyo (1975) • UN Principles of Medical Ethics (1982) • World Psychiatric Association, Declaration of Madrid (1996) This list could be dramatically expanded, but with virtually every new statement there is movement toward harsher condemnation of the involvement of medical personnel in coercive interrogations. The UN Principles of Medical Ethics, whose full title is “Principles of Medical Ethics Relevant to the Role of Health Personnel, Particularly Physicians , in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,” are especially clear. Indeed, the document is striking in its brevity and clarity . The entire statement reads as follows: Principle 1: Health personnel, particularly physicians, charged with the medical care of prisoners and detainees have a duty to provide them with protection of their physical and mental health and treatment of disease of the same quality and standard as is afforded to those who are not imprisoned or detained. Principle 2: It is a gross contravention of medical ethics, as well as an offence under applicable international instruments, for health personnel, particularly physicians, to engage, actively or passively, in acts which constitute Treating Terrorists 117 participation in, complicity in, incitement to or attempts to commit torture or other cruel, inhuman or degrading treatment or punishment. Principle 3: It is a contravention of medical ethics for health personnel, particularly physicians, to be involved in any professional relationship with prisoners or detainees the purpose of which is not solely to evaluate, protect or improve their physical and mental health. Principle 4: It is a contravention of medical ethics for health personnel, particularly physicians: (a) To apply their knowledge and skills in order to assist in the interrogation of prisoners and detainees in a manner that may adversely affect the physical or mental health or condition of such prisoners or detainees and which is not in accordance with the relevant international instruments; (b) To certify, or to participate in the certification of...