Torture and Cruel, Inhuman or Degrading Treatment or Punishment

Torture in the 21st Century Sir Nigel Rodley, Professor of Law, University of Essex, U.K.; Expert Member, United Nations Human Rights Committee

I am going to focus on a specific issue, which is a kind of lawyering that has been done in the United States around interrogation practices as a response to terrorism.

Let me start with a presidential directive issued by President George W. Bush on the 7th of February 2002—the Presidential Directive on Humane Treatment of Al Qaeda and Taliban detainees. In it, he says, our values as a nation, values that we share with many nations of the world, call for us to treat detainees humanely, including those who are not legally entitled to such treatment. As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely.

Some of your laughs have already stolen some of my thunder, I think. These seemingly encouraging words purport to reaffirm the best humane traditions of the United States and other nations, but, in fact, they are a high-profile representation of a serious and sustained assault on basic legal values previously asserted by the United States and other nations. For the words “unmistakably assert a legal right not to treat at least some detainees humanely,” if that is so for the United States, it is also so for other nations, whether or not they share the United States’ values as a nation.

The statement was made on the basis of legal opinions emanating from and signed by political appointees from the U.S. Department of Justice’s Office of Legal Council (the OLC)— opinions at least partly contested by the U.S. Department of State’s Legal Advisors’ Office. Some of you in this country will be aware that the legal advisers in the Foreign Office aren’t always able to convince our attorney general of what is right and proper, either.

Several subsequent opinions from the OLC continue the legal construct that was calculated to allow the military and/or the CIA or similar shadowy bodies to take off the proverbial gloves. They were supplemented by a 2003 Department of Defense Working Group report, also apparently finalized by politically appointed lawyers.

At the end of last year, on the 30th of December, 2004, the key OLC memorandum on the issue of torture, a memorandum that had been issued in August 2002, was replaced, and I’ll come back to that later.

Let me make a couple of preambular points.



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International Human Rights Network of Academies and Scholarly Societies Torture and Cruel, Inhuman or Degrading Treatment or Punishment Torture in the 21st Century Sir Nigel Rodley, Professor of Law, University of Essex, U.K.; Expert Member, United Nations Human Rights Committee I am going to focus on a specific issue, which is a kind of lawyering that has been done in the United States around interrogation practices as a response to terrorism. Let me start with a presidential directive issued by President George W. Bush on the 7th of February 2002—the Presidential Directive on Humane Treatment of Al Qaeda and Taliban detainees. In it, he says, our values as a nation, values that we share with many nations of the world, call for us to treat detainees humanely, including those who are not legally entitled to such treatment. As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely. Some of your laughs have already stolen some of my thunder, I think. These seemingly encouraging words purport to reaffirm the best humane traditions of the United States and other nations, but, in fact, they are a high-profile representation of a serious and sustained assault on basic legal values previously asserted by the United States and other nations. For the words “unmistakably assert a legal right not to treat at least some detainees humanely,” if that is so for the United States, it is also so for other nations, whether or not they share the United States’ values as a nation. The statement was made on the basis of legal opinions emanating from and signed by political appointees from the U.S. Department of Justice’s Office of Legal Council (the OLC)— opinions at least partly contested by the U.S. Department of State’s Legal Advisors’ Office. Some of you in this country will be aware that the legal advisers in the Foreign Office aren’t always able to convince our attorney general of what is right and proper, either. Several subsequent opinions from the OLC continue the legal construct that was calculated to allow the military and/or the CIA or similar shadowy bodies to take off the proverbial gloves. They were supplemented by a 2003 Department of Defense Working Group report, also apparently finalized by politically appointed lawyers. At the end of last year, on the 30th of December, 2004, the key OLC memorandum on the issue of torture, a memorandum that had been issued in August 2002, was replaced, and I’ll come back to that later. Let me make a couple of preambular points.

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International Human Rights Network of Academies and Scholarly Societies Unlike some, I do not view the atrocities of September 11, 2001, as just another set of terrorist acts of the sort that much of the world has had to endure in recent decades. The images and reality behind them will haunt us for decades, maybe centuries. They are the stuff of evil. The scale of the attacks, their enormity, places them on a qualitatively different scale from prior situations characterized by terrorism. Other societies may have lost more people in facing ruthless terrorist enemies, internal or external, over a protracted period. But precisely the fact that the perpetrators of 9/11 could destroy in a single hour lives and property that other terrorist movements have taken years or decades to destroy, make them an enemy requiring maximum resistance. That is why, with or without a Security Council resolution, I should have had no problem in considering the invasion of Afghanistan, the perpetrators’ base at the time, as being a necessary and proportionate response to the challenge. But, as you will gather pretty soon, I simply don’t think the case has been, or can be made, that it is necessary or proportionate to rewrite international law on the humane treatment of detainees. My second preambular point relates to the interrogation practices that have been the subject of national and international concern. It would not be appropriate of me, as a member of the Human Rights Committee under the International Covenant on Civil and Political Rights, to address contested matters of fact. I shall not comment on how abhorrent or otherwise were the notorious violations of Abu Ghraib, in respect of which some courts marshal have taken place, whatever the low level of responsibility. But a number of techniques approved by the U.S. secretary of defense for possible use by interrogators could constitute torture and/or cruel, inhuman treatment. The methods include sleep adjustment, for example reversing sleep cycles from day to night, which we’re told is not sleep deprivation; false flag; threat of transfer, that is, threatening to transfer a person to a third country, in which the subject is likely to fear torture or death. The threat would not be acted on, nor would the threat include any information beyond the naming of the receiving country. Isolation for up to 30 days; forced grooming; use of stress positions, such as prolonged standing for up to 4 in any 24 hours; sleep deprivation; removal of clothing; increasing anxiety by the use of aversions, such as the presence of dogs; deprivation of light and auditory stimuli; sensory deprivation techniques. Any combination of these, especially over a protracted period of time, would certainly amount to torture. Many of these techniques have clearly been used at Guantanamo Bay. The sin apparently committed at Abu Ghraib is that they were used without the appropriate safeguards and perhaps on camera. It was not done by the book, even if it was contemplated by the book. Somebody called it “amateur hour.” It is a book approved by people with legal credentials. I’m looking forward to seeing the case for the following also—not to constitute torture or cruel or inhuman treatment—seizing and transferring people to the other side of the world for months or years without end; holding them isolated from the outside world, sometimes hidden from the International Committee of the Red Cross (ICRC) as so-called “ghost detainees;” and so-called “extraordinary renditions” to countries where the rendered person faces

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International Human Rights Network of Academies and Scholarly Societies torture. I won’t, as others have done, comment on the kind of language that is used to make more anodyne these practices. What has been the legal strategy to permit some of these things to happen, to whatever extent they may or may not have happened? Well, first of all, there has been a look at the international law of armed conflict, particularly the Geneva Conventions relative to the treatment of persons in armed conflict. The relevant conventions being the Geneva Convention III on the treatment of prisoners of war and the Geneva Convention IV on the treatment of civilians. In an international armed conflict, say the U.S. lawyers, the Geneva Conventions don’t apply to the people they’ve detained, not to Al Qaeda and not to the Taliban. They don’t apply to Al Qaeda because Al Qaeda is not associated with a contracting state, and only people connected with armies as connected with a contracting state party can be protected by the Geneva Convention on prisoners of war, and only civilians protected by a contracting state can be protected under the Fourth Geneva Convention. Since Al Qaeda is not a contracting party, anybody having anything to do with Al Qaeda is automatically not protected insofar as the Geneva Conventions protect people in international armed conflict—the Taliban too, for that matter, but they are history, and I won’t spend time on them, given the limited amount of time I have. What about common Article 3 of the Geneva Conventions, which applies in non-international armed conflict? There is no criterion of having to be a party to any particular conflict, there is no particular threshold. Nobody in the hands of a party to the internal conflict can at any time or at any place whatsoever be subjected to torture or to inhuman or cruel treatment. There is no ambiguity. Torture and inhuman treatment, we know, are war crimes. Well, that doesn’t apply because it is not a non-international conflict. It is an international conflict that they are dealing with—global war on terror. The situation is not a non-international conflict, and so the minimal protection offered by common Article 3 doesn’t apply. If it is not an international conflict, therefore, the greater protections offered by the rest of the Geneva conventions don’t apply either. It was generally thought, and I think it is still arguably the case, that, in fact, common Article 3 has to be seen as reflecting the basic norm within the convention as a whole. But we don’t have to go that route. I don’t want to take you down a complicated legal argument, because international law doesn’t have to rely just on treaties. Maybe I should just add a little gloss on something Baroness O’Neill said this morning. It isn’t necessarily just a treaty that gives you international law. There is also such as a thing as customary or general international law, which gives you a so-called source of international law. And there can be not the beginnings of doubt that the prohibition of torture and cruel and inhuman treatment in international humanitarian law is a rule of customary humanitarian law, and it is a rule that applies to anybody in the hands of a party. It is a position that operational law handbooks of the United States themselves have taken in the past. So, does that resolve the issue? No, it doesn’t, at least not for the United States. It may, for us, as the international community. The Department of Defense legal memorandum has a heading at one point: Customary International/Views of Other Nations. There it takes on board

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International Human Rights Network of Academies and Scholarly Societies some of the points I’m making. But all that is irrelevant because Customary International Law isn’t incorporated into United States law. The issue is: What will the U.S. courts do? The Geneva Conventions are incorporated, and the kinds of activities we are talking about will be potentially criminal under the legislation incorporating the Geneva Conventions, but not if the Geneva Conventions don’t apply. The incorporating legislation doesn’t incorporate customary international law, just the Geneva Conventions. Customary international law can be left to discussions with other nations. Another issue that is looked at is the area of human rights law. Very short shrift is given to the International Covenant on Civil and Political Rights, which the United States is party to, primarily because it is the U.S. position (and this is an issue that I won’t go into; it is a highly contested position, and the World Court doesn’t agree with it) that the covenant does not apply outside the territory and it does not apply to armed conflict. So that gets rid of that. The United States does acknowledge the relevance of the U.N. Convention Against Torture, to which it is also a party. I suspect the main reason it acknowledges its relevance is that in its incorporating legislation it only criminalizes torture committed outside the United States by U.S. personnel, on the argument that internally U.S. federal and state law already cover it. So, if to incorporate the convention they have applied extraterritorial criminality, then they can hardly interpret the convention as precluding extraterritorial criminality. Otherwise, it has a jurisdictional clause that is rather tighter than the jurisdictional clause of the Covenant on Civil and Political Rights. They accept the applicability of the torture convention—so then what do they do? They say what we are doing isn’t torture. I need a couple of minutes to explain the problems of definition. Back in the mid-1970s, the European Court of Human Rights made a very serious mistake. It decided, when looking at five interrogation techniques used by the United Kingdom in Northern Ireland (which the European Commission of Human Rights had already found to be torture), that it is inhuman and degrading treatment, but it is not torture. It doesn’t deserve the stigma of torture—whatever legal significance stigma is supposed to have. Those techniques involved being spread-eagled against a wall on tips of toes for up to 24 hours, forced by physical force if necessary, subjected to loud noise, deprived of food and drink, subjected to hooding, and being kept awake. Those treatments for up to 24 hours, in combination, were found to be a violation of Article 3 of the European Convention on Human Rights, as constituting inhuman and degrading treatment. What is the line taken by these Department of Justice memoranda and other official memoranda? Well, given the kind of techniques we are going to be concerned about, we shouldn’t have to worry because we have incorporated this understanding of torture as being at the pyramid of a continuum of pain or suffering. It is not an interpretation of the torture convention that flows naturally from the convention, although I don’t have time to explain why. In the first memorandum, the one of August 2002, there was a wonderful explanation of relevant pain. The pain would have to be “excruciating and agonizing” or “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” That was one of the statements that caused so much disgust in the United States as well as around the world. The December 2004 memorandum expressly

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International Human Rights Network of Academies and Scholarly Societies disagrees with that statement so it has to be considered as being revoked but they still stick to the pyramid threshold, in which torture has to be more severe pain or suffering than even the pain or suffering induced by cruel or inhuman treatment. They cite the Northern Ireland case for their proposition. What they don’t cite is the 1998 Mooney case, in which the court maintained the pyramid approach but reduced the threshold so substantially as to make it barely perceptible, by indicating that brutal behavior that they previously considered inhuman but not torture will now, with evolving standards of decency, be considered to be torture. Well, does it matter if it is not torture—it is still cruel or inhuman, right? What’s the problem? The problem is, of course, that the torture prohibition in the torture convention, which is the full title of the torture convention—the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment—is incorporated, but the bit on cruel and inhuman or degrading treatment or punishment (1) has not been incorporated, and (2) there is a reservation saying that it means cruel, unusual, and inhuman treatment or punishment within the meaning of the 5th, 8th, and 14th Amendments to the U.S. Constitution. Careers have been made and broken on finding out what that means, even in the United States. And, even cleverer, because it is within the meaning of the U.S. Constitution, and the U.S. Constitution applies only within the main United States and possibly Guantanamo, too, despite the administration’s protestations after the Supreme Court judgment of a couple of years ago that the provisions relating to cruel and inhuman or degrading treatment or punishment don’t apply abroad. The convention doesn’t apply to cruel, inhuman, or degrading treatment or punishment abroad because of the United States’ reservation relating to the nature of what is inhuman or degrading. Again, from an international legal perspective, there isn’t a major problem. The prohibition is of torture and cruel and inhuman or degrading treatment or punishment. Let’s assume for a moment that even with the U.S. reservation, the odds are that the kinds of practices as applied, if they applied cumulatively over a protracted period of time, might easily fall within those terms. It doesn’t matter, because U.S. law isn’t going to catch it, and that, again, is ultimately the problem. The problem is, to quote Justice Oliver Wendell Holmes’ famous line in The Path of the Law, “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.” I think we now have a position in which we see that a prediction of what U.S. courts will do, in fact, and nothing more pretentious, is what the Department of Justice means by international law. I don’t want to be cavalier about this. I do think there are important issues at stake. I mention again what I said before about the nature of the enemy, and, at some point, I suspect our discussion will take us back to the ticking bomb scenario which, by all means, we can discuss, but I won’t address it right now. Let me just do what British politicians often do (and quote myself). I think British academics ought to be allowed to do it occasionally. In my valedictory statement to the U.N. General Assembly, as I left the Office of Special Rapporteur on Torture, some two months after 9/11, I said: However frustrating may be the search for those behind the abominable acts of terrorism, and for evidence that would bring them to justice, I’m convinced that any temptation to resort to

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International Human Rights Network of Academies and Scholarly Societies torture or similar ill treatment, or to send suspects to countries where they would face such treatment, must be firmly resisted. Not only would that be a violation of an absolute and preemptory rule of international law, it would also be responding to a crime against humanity with a further crime under international law. Moreover, it would be signaling to the terrorists that the values espoused by the international community are hollow and no more valid than the travesties of principles defended by the terrorists. I probably put that in there to show that I’m not really being wise after the event. It took a while for Abu Ghraib and all the legalities to emerge. But there was obviously the fear that things like this might happen, and regrettably that fear has turned out not to be ill founded. I hope there are developments in place that might also lead to a rolling back of this nasty slope we started going down. Thank you very much. Discussion Rodley – [in answer to an inaudible question] There is a legal definition in the Convention Against Torture, and maybe it would be sensible to just put it on the table. This is the definition in the U.N. Convention Against Torture: “For the purposes of this convention, the term torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person or for any reason based on discrimination of any kind when such pain or suffering is inflicted by, or at the instigation of, or with the consent or acquiescence of a public official or other person acting in an official capacity.” In other words, it is severe pain or suffering for a particular kind of purpose by a public official.

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International Human Rights Network of Academies and Scholarly Societies Torture in Times of Terror Professor Upendra Baxi, School of Law, University of Warwick, U.K. Before I get to the subject of torture in times of terror, it is a bit intimidating to be in the presence, let alone follow, Sir Nigel Rodley, who is a world authority on the torture convention. Nevertheless, I’ll add a few footnotes to what he said. Before I turn to that, I do want to add a word of concern to the voices of anxiety heard this morning concerning the addition of the word responsibility and the title of the Network. I must say that we must be mindful that, not too long ago, colonized people were not considered worthy of human rights because they were not found responsible enough to be bearers of human rights. This went on for 250 years or more. I find that the same can be said about women, who were not considered fit to be responsible and therefore were denied all kinds of human rights for a very long time by the state. We must be extremely careful in the responsibilities of the language and politics of human rights as a governance device. Everyone who works on the theory of human rights knows well that all human rights imply an order of human responsibility. I used to be a smoker. I loved my pipe and cigar, and then there emerged the slogan that “your right to smoke ends where my nose begins.” And ever since then I’ve found the world too full of noses. So there is always an order of reciprocity. So rights are a relational situation, and responsibilities are implied. On the area of my discussion, I would like to divide it into three parts. I’m not going to do justice to any, given the time constraints. First I would like to speak about torture in the conditions of the ongoing two terror wars. I describe these as War of Terror and War on Terror, and I think the distinction is quite important. Secondly, I would like to briefly mention the relation of torture and cruel, degrading, and inhuman treatment and punishment in the torture convention, to which Sir Nigel referred, and, thirdly, the problem of outsourcing of terror practices through the practices of rendition. But, more importantly, the major part of my remarks will focus on the so-called justifications for the use of terror in the standard case, elaborated after 9/11 by my friend Alan Dershowitz in his 2002 book, “Why Terrorism Works,” where he proposes, to meet the standard case of the ticking bomb scenario, we should have recourse to a system of judicial torture warrants from the courts. I agree that certainly 9/11 is a crucial date, but I don’t believe it was the most important date after the Crucifixion. A lot more things have happened in between in terms of the history of terrorism. While we must not belittle the importance of 9/11, one cannot understand wholly the history of torture and terror without looking at other episodes and other structures of terrorism. 9/11 remains important, if not singular, in terms of delineating two kinds of terror wars— war on terror and war of terror. I believe there is some kind of symmetry or connectivity between the two terror wars. Perpetrators of both wars say theirs is a counter response to the violence on the other side. They both offer some messianic and redemptive justifications. I’ve compared several militant fatwas,

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International Human Rights Network of Academies and Scholarly Societies both pro-U.S. and anti-U.S., and I found that the justifications for violence offered by the extremists from Al Qaeda and other sources can be translated into or resonate well with the language of justice, freedom, and responsibility of the Bush/Blair cadre. They have a commonality of a future made of a just world, violently achieved. Both wars feed on the horrors of each other; they are self-fulfilling monsters, as it were. We could start by appreciating the great insight of philosopher Alain Badiou, a French thinker, who describes the situation we are in, and the crimes in New York and the battles that followed, as constituting a “disjunctive synthesis of two Nihilisms.” Nihilisms that self-destruct the norms and values that we thought existed earlier. The violence that is ushered in by the two terror wars operates over rights, international law, human rights law, and humanitarian law in many ways. First of all, it is only after 9/11 that we have seen such serious concern in the United Nations and elsewhere to somehow produce a unanimous definition of terrorism. If you look at the history of the United Nations’ approaches to defining terrorism over the last 30-40 years, there was not a similar enthusiasm and ingenuity as now appears on the scene and the horizon. Most recently, in an interesting report in March 2005, called “In Larger Freedom,” the distinguished Secretary-General Kofi Annan has proposed a definition that he hopes the General Assembly will accept later this year. So that is one extraordinary convergence of interest. Second, and this is what Sir Nigel already referred to, there is a whole issue of semantic manipulation of the distinction between torture and non-torture. What is lethal violence and what is non-lethal violence? Which is torture and which is cruel and degrading treatment and punishment? I am quite familiar with semantic manipulations, which are quite exploited. I’ve appeared several times before the Supreme Court of India concerning starvation death in the Eastern State of Orissa. Ultimately the Supreme Court was moved and asked the State to file an affidavit, and the State said there had been no starvation deaths in the State of Orissa. The petitioners are quite wrong. What may have happened is a series of deaths owing to progressive malnutrition. There have been cases before 9/11, in which the dividing line between torture and non-torture has been ruthlessly manipulated. Since it is a common practice to benignly refer to the South or the Third World in this regard, I would rather focus on the First World and share with you some examples. One is found in a 1972 article by Professor Ian Brownlie when he analyzed in depth the interrogation techniques used in the British colonies and their dominions as far apart as Palestine, Cypress, Malaya, British Cameroon, Kenya, and Aden. It was a quite shocking exposé. This was before the torture convention, and it is a sad account. [inaudible]

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International Human Rights Network of Academies and Scholarly Societies Similarly, the Landow report in 1989, followed by the Israeli Supreme Court decision against torture in Israel, as the State of Israel, practically allowed the General Security Service of the State of Israel full rights to go ahead with torture in the interest of national security. The same must be said about the United Kingdom’s Compton committee report in relation to Northern Ireland which described as falling far short of brutality the sustained interrogation techniques of ill treatment. You remember perhaps Lord Gardiner, following the Compton report, saying that the report seemed to justify “the regrettable necessity of cutting off the fingers of a detainee one by one to get the required information out of him for the sole purpose of saving lives” as this would “not be cruel and, because not cruel, not brutal.” There you have the whole history of semantic manipulation of this kind of brutality. Between torture and non-torture, the American jurists, if I may so call them, use the distinction in terms of torture “lite” versus torture. I think this is the Budweiser impact on naming the practices of torture. The second aspect of the two wars on terror has unfortunately shattered the image of a growing consensus on what international law has called the jus cogens character of the prohibition of torture. There was a growing belief over the last 50 years or more that certain kinds of practices of torture were prohibited because they treat human beings as objects, they deprive them of dignity, etc. I think this kind of imagery is now in ruins. With regard to the third aspect or impact of the two terror wars, I defer again to the United Nations’ Secretary-General’s report of 2005 March, in which he says the following, “It is time to set aside debates on so-called state terrorism. The use of force by States is already thoroughly regulated under international law.” He is concerned about fostering a definition of terrorism by non-state actors. When we talk of torture and histories of torture and the efforts to fight it on a human rights platform, we surely know that here are available to us the defining laws that constitute elements of proposing a definition of State terrorism. It is most astonishing that this is a one-sided focus on non-state terrorism, or what I call practices of violence by nomadic, insurgent multitudes. This is now supposed to be controlled, and we are asked to believe that state terrorism is a matter of the past. I think this is something we ought to refute. I do want to come to the question of justifications of torture. There has always been talk about some good reasons for using torture in certain calamities of catastrophic situations. This goes back in English/British jurisprudence to a posthumous manuscript of Jeremy Bentham called On Torture which was discovered some 20 years ago. Although he considered torture an evil, Bentham thought it could be justified in various ways, provided certain of its vices are cured. He therefore proposed, and I’m speaking from memory, what I call the bureaucratization of application of decisions to apply torture. He proposed some kind of judicial tribunal to which people could make appeals for a suitable amount of torture or a just measure of pain, as somebody has said, to be inflicted because of the ticking bomb scenario. What is peculiar about post-9/11 discourse on terror, is an extension of the Bentham idea of judicialization of application of decisions of torture. For those of us concerned about the future of human rights, it raises all kinds of issues and should be taken extremely seriously by those of us concerned for the future of human rights.

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International Human Rights Network of Academies and Scholarly Societies Dershowitz proposes the revival of the practice of torture warrants. Why? Because he says, more or less in line with Bentham, that this is making the whole process visible. What is off the radar screen, below the radar screen, and off the books will now come on the books and on the radar of public discussion. This is a consequentialist justification that has been contested by people who believe that prohibition of torture should be an absolute norm—that under no circumstances should there be any authorization of torture. This is a vanishing tribe. This tribe is, on the whole, subjected to, on the one hand, the post-9/11 schizoid/paranoid state formation and on the other hand the manipulation of public anxiety, justly based, about future violations of the rights to life and humanity. Very distinguished American jurists and thinkers have now come around to the view that, in rare situations, the application of torture must be publicly authorized by an articulate and publicly transparent process. This amounts to some kind of legalization of the decision to apply torture for the wider good. Some people, but they are tiny voices, under the pressure of this argument, argue that ex-ante legalization of torture and re [inaudible] edifies the prohibition on torture and cruelty. This is ex-post-facto legalization of torture. In other words, those public officials who feel the urge to apply torture in the name of public good should defend their action, subsequent to the event, in judicial forums—maybe under plea of necessity or some other basis that would make rationality of torture application more visible. Some people argue that torture and the application of torture in the worst situation of the ticking bomb should be considered as acts of political disobedience. In other words, a detaining authority or an FBI official, or whatever, may be compared with Mahatma Gandhi or Martin Luther King, or Nelson Mandela—that a person who applied torture does so as an act of civil disobedience, against the laws prohibiting torture. Like a good person who practices civil disobedience, he or she should take punishment for the act which he knows to be illegal. There is a whole notion that if torture is morally worthy in certain rare situations, it should be a moral act, and if it is a moral act, it should be considered only as an act of ethical disobedience, and therefore the other consequences follow. In sum, I’ve done a diagnostic survey of the fantastic creativity of American legal thinkers since 9/11, and I don’t think we should underestimate it because these are some very eminent minds, and not all of them are among the 168 lawyers of the State Department who justified preemptive targeting against Iraq or justified “torture lite” practices. Finally, I would like to say that someday, when we have time to consider the torture convention in detail, we need to look at five types of phenomena that are linked together. One is interrogative or custodial torture or degrading treatment; another is preemptive torture, where it is used to prevent other kinds of violent happenings; the third is penal torture; the fourth is the entire regime of extradition, asylum, and refugee law; [inaudible] and, finally, the outsourcing of torture, in which you send people to another place of detention.

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International Human Rights Network of Academies and Scholarly Societies Nothing is more crucial for the future of human rights than an agonized examination of the new moral or ethical discourse on the justification of torture in rare cases. It is a discourse that is growing, a discourse that we cannot laugh out of the courts. Comments Rodley – Just because international human rights and humanitarian laws aren’t always respected, doesn’t mean to say that international humanitarian law doesn’t define a whole load of obligations. If those obligations were respected, I think this is Kofi Annan’s point, then there wouldn’t be state terrorism. The problem is that there is not anything equivalent to the international level to describe the phenomenon that people understand. Different people understand different things. This is why it has taken so long to get there, and we may not be there yet. It is not fair to say that Annan was saying there isn’t a problem of state terrorism. I think he was saying there isn’t a problem of defining what obligations states are violating when they commit state terrorism. They are already there. But he is not here to defend himself. Also, I just felt the need to point out that in the 2004 memorandum from the Office of Legal Counsel, the memorandum starts by acknowledging (1) that torture is prohibited under customary international law and (2) that many consider that it is a norm of jus cogens and then cites some very credible authorities for that proposition. Again, they are not necessarily trying to write out the idea. What they are trying to do is change the understanding of what kinds of acts fall within the idea. I just wanted to say one thing about good lawyers in the United States, and there are a lot of them. It was lawyers in the United States, military lawyers, who have broken the story. It was people in the Department of Defense who leaked it to Scott Horton of the New York City Bar Association Human Rights Committee. The military lawyers were appalled at what was being said about what they could and couldn’t do, should and shouldn’t do. It is a small number of lawyers who have been doing it. I gave a similar talk in a venue in which high-level officials from the judge advocate general’s office were present, and I didn’t mention the fact that these lawyers were political appointees. The first question was from one of them, commenting that you didn’t point out that it was political appointees who were responsible for these memoranda, and indeed some of them were not in the loop as they were finalized. One shouldn’t assume that the whole system has decided to go Dershowitz or to go Ashcroft or go to Gonzalez, although those people are doing their best to create the substance of Upendra Baxi’s or my fears. I also don’t want to be as pessimistic as Upendra, because there are very strong forces at play in the United States with very strong professional consciences also fighting the same fight.

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International Human Rights Network of Academies and Scholarly Societies After Abu Ghraib: Medical Ethics, Human Rights, and the Laws of War Dr. Gregg Bloche, Professor of Law, Georgetown University, U.S.A. Professor Jonathan H. Marks, Barrister, Matrix Chambers, London; Greenwall Fellow in Bioethics at Georgetown and Johns Hopkins Universities, U.S.A. Gregg Bloche The involvement of physicians and scientists in torture has been a macabre interest of mine for many years—in Uruguay, South Africa, Turkey, the former Soviet Union, and elsewhere. This was not just a story of Nazi or Japanese militarists; it has been a post World War II story. We Americans, of course, didn’t do that sort of thing, so of course physicians didn’t participate in torture. This, as it turns out, was a matter of blind luck. At Guantanamo Bay and Abu Ghraib and elsewhere, our luck has run out. Jonathan and I have been doing a little bit of research into the question of what doctors did, and it is pretty difficult to find out because there are orders for people not to talk. You have to get stuff on the sly and meet people in unusual places and then connect the dots with documents. Our picture is pretty incomplete, but we are also going to talk about some of the wider issues. A little bit of context: American clinical caregivers have often acted heroically. Under frequent attacks by mortars and improvised explosive devices and small arms fire and the like, they have provided lifesaving care to U.S. soldiers, and they have had a historically unprecedented ratio of wounded to killed in action—a traditional measure of effectiveness in military medicine. And they have provided care to civilians and enemy combatants, often under life-endangering conditions. However, a variety of alleged forms of complicity by American physicians and post-9/11 abuses have been uncovered, including failure by both caregivers and forensic pathologists to record evidence of abuse, failure by caregivers to report evidence of abuse to higher authorities, failure of the whole military health system to plan for the medical needs of detainees, and—what we’re focusing on today and what we have focused on in our research—medical complicity in interrogation practices, including so-called counter-resistance practices (there is another euphemism to add to the bunch), that violated international law. What did the doctors do? How did the doctors’ roles support post-9/11 interrogation strategies, and what were these strategies? And what are the ethical and legal issues posed by medical roles in these practices? This is from a slideshow that was presented. Imagine, for a moment, you are a new interrogator assigned to Abu Ghraib, and it is December 2003. You see a slideshow on your first or second day of orientation and early on in the slideshow is this slide. The database is lonely but you can help, tell the database about what a fun conversation you and your guest had, and give the database more background on our guest. These folks did have a sense of wit. This is at the end of the slideshow. It is hard to make things out, but there is an interrogation going on, and the interviewer has a hand puppet, and he is saying, I realize it sounds rather cliché, but we have ways of making you talk.

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International Human Rights Network of Academies and Scholarly Societies How did military health professionals support this sort of thing? At Guantanamo Bay and Abu Ghraib and probably elsewhere, interrogation teams gained access to medical records kept by caregivers, something the Pentagon at first denied and later admitted and defended. Medical treatment was occasionally a reward for cooperation with interrogation, and denial of care was, at times, a punishment for insufficient cooperation. Physicians and psychologists and other health professionals were, in the jargon of the military, attached to military intelligence units (I’ll refer to them as MI units) to assist in developing and implementing interrogation plans. There are unsubstantiated reports that some drugs were given on occasion to try to make interrogation more productive. Now, take a step back and look at a new doctrine that developed shortly after 9/11. Major General Jeffrey Miller, who has not been disciplined and according to some of our sources is about to be promoted, had a vision for Guantanamo and Abu Ghraib that was actually quite different from what traditional interrogation doctrine called for. Above all was the principle of fusion, as he put it in some internal memos, of all prison functions to support the interrogation mission. He called for the creation of behavioral science consultation teams, known as BSCTs, to develop integrated interrogation strategies and to assess interrogation intelligence production. And there would be individualized interrogation plans for the highest priority detainees. This approach was developed at Guantanamo Bay by General Miller and his team in 2002 and early 2003. In the late summer/early fall of 2003, with the Iraq insurgency worsening and Saddam Hussein still at large, General Miller and his team visited Abu Ghraib to assess MI operations. Almost certainly accompanying this team was a forensic psychiatrist. Miller issues a scathing rebuke at the end of this review. And with support from senior Pentagon officials, operations at Abu Ghraib are quickly refashioned along Guantanamo lines with a major infusion of resources. Here is a flowchart showing interrogation rules of engagement, and you see some of the practices mentioned earlier by Sir Nigel—stress positions, sleep deprivation, etc. But also notice, under safeguard number three, medically burdened detainees must be medically cleared prior to interrogation. A new medical procedure has been introduced. I won’t walk you through all of this. This again comes from the slideshow. We focus on where the interrogation is conducted, the interrogator plus the interpreter. What is this BSCT team about? They were staffed by psychologists and/or psychiatrists, and this concept met resistance from traditional MI personnel, who didn’t think these folks, psychiatrists and psychologists, had anything to contribute. I talked to one of these traditional fellows—a colonel from Fort Huachuca, where these guys were trained, and before turning me over to the public relations person, he said, my job is to hurt people—I don’t involve doctors. I didn’t think much of this. There is a training program at Ft. Bragg, called Psy-Ops, involving various kinds of psychologists in particular. These BSCT teams were carefully assembled at Guantanamo, but assembled on the fly with professionals not trained for the mission at Abu Ghraib. Consider, for a moment, one member of the team at Abu Ghraib, and I’ll tell you in a moment how we learned about him.

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International Human Rights Network of Academies and Scholarly Societies Major Scott Uthaw, a young forensic psychiatrist arrived in Iraq in November 2003. He was neither trained at Ft. Bragg nor otherwise schooled in BSCT doctrine, and he is told that he is going to join a combat stress support team. That is a typical assignment for a military psychiatrist. Instead, almost immediately he is taken off that team and attached to Abu Ghraib’s military intelligence interrogation unit, the now legendary unit commanded by the recently disciplined, but not criminally charged, Colonel Papas, under the supervision of the neither disciplined nor charged and perhaps about to be promoted General Sanchez. He is assigned to the BSCT. Here is a flow chart for the interrogation operation at Abu Ghraib. This is a close-up of the flowchart, and here is our friend, Dr. Uthaw. The Army just doesn’t have a lot of forensic psychiatrists so you can identify, through Google, most or all of the Army forensic psychiatrists. Uthaw is not a common name, so we could not earn a Nobel Prize for this work. So, what did Dr. Uthaw do? According to testimony by Colonel Papas, who was chief of MI at Abu Ghraib in one of the earlier inquiries conducted by the military, MI teams prepared individual interrogation plans for detainees, including a sleep plan (not the sleep plan you prepare for your infant) and medical standards, and—directly from Papas’s testimony—a physician and psychiatrist are on hand to monitor what they are doing. Then the doctor and the psychiatrist look at the files to see what the interrogation plan recommends, and they have the final say as to what is implemented. The psychiatrist, Uthaw, also went with interrogators to the prison, and one of his jobs was to review all those under a “management plan” and to provide “feedback as to whether they were being medically and physically taken care of.” That is a little bit more ambiguous—we don’t know what that means. We have some additional pieces of the BSCT puzzle from documents that were disclosed as a result of a Freedom of Information Act request by the American Civil Liberties Union. There are one-way mirrors at both Abu Ghraib and Guantanamo to allow observation of the interrogations. In a statement made during the course of an Army criminal investigation, a psychologist admitted sitting in on random interrogations. From sources that we interviewed on background, we know that Abu Ghraib had an interrogation site that basically had a central hallway with three interrogation rooms on each side, and you could stand in the central hallway and look at these rooms through a one-way mirror. One of the things that happened in the BSCT teams was psychological profiling for the purpose of developing individual interrogation plans. There was quite an internal debate over whether you should pursue rapport-building interview strategies or aggressive approaches aimed at breaking down interviewees. The database is crucial, so if you have your friendly, smiling computer there to quickly check on the accuracy of the information, then the logic is that you can use more aggressive techniques because you have ways to use technology to check on the accuracy of the information. Now, there is a more confusing picture with respect to the extent to which interrogation teams had access to medical records. Basically, the Pentagon at first denied this, then admitted it, then rationalized it, as evidence leaked out to various sources, including us and the International Committee of the Red Cross. David Tornberg, Assistant Secretary of Defense for Health Affairs, told us back in November 2004 in an interview, just a few days before the Pentagon official denied the access to medical records, that of course they had access to medical

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International Human Rights Network of Academies and Scholarly Societies records, “They couldn’t do their job without that information. To the extent it is militarily relevant, the information can be used.” Jonathan Marks is going to pick up with the issue of medical gate keeping and medical oversight over interrogation and then continue with some international law issues. Then I will pick up with some related international medical ethics issues. Jonathan Marks – Sir Nigel has saved me some work by doing a fine job of going through some of the international legal instruments. One of the issues that I want to flag before we touch on the issue of gate keeping is that key in the minds of the creative lawyers in the administration, the political appointees, was this focus on torture in the original August 2002 memo, which is sometimes referred to as the Bybee memo. It defined torture incredibly narrowly—requiring pain of an intensity leading to death, or organ failure, or serious impairment of bodily functions, and then it went on to deal with mental and psychological torture and suggested that the requirement was that it be prolonged to severe—that is, lasting months or possibly years. This focus was on a very narrow definition of torture—a definition that, as Nigel has already said, the administration withdrew from in its December 2004 memo, the so-called Leven memo, released just days before the Gonzalez confirmation hearings. But at the time the events we are discussing were going on, the Bybee memo was at the forefront of people’s minds. When we talk about gate keeping, Gregg has already told you about Papas’ account, we are referring to the idea that physicians essentially have the final say as to what is implemented and that there are facilities for them to monitor the interrogations. It raises the real question: What are we asking physicians to do when we require them to monitor and approve interrogations and, in fact, interrogation plans? As a result of perusal of a large number of documents obtained by the American Civil Liberties Union in Freedom of Information Act requests, we do know that there were interrogation plans designed by military intelligence tiger teams (the name of the interrogation teams) in consultation with medical personnel. We haven’t seen any of these interrogation plans, because the ones disclosed on the ACLU’s request have been entirely redacted [blacked out], so all you have is the title “Interrogation Plan” and a few subject or paragraph headings. But we have a good idea of what an interrogation plan looks like from a leaked document. This is a document dated November 30, 2003. It is a request from Colonel Papas’s head of military intelligence at Abu Ghraib to Lieutenant General Ricardo Sanchez. What he says in the memo is that they have a Syrian fighter who was caught trying to set off an improvised explosive device. They believe he has information regarding safe houses and the smuggling of foreign fighters into Iraq. They want permission to use harsh interrogation or more aggressive interrogation techniques. The first one they want to use is “fear up harsh,” in which interrogators “will, at a maximum, throw tables, chairs, invade the detainee’s personal space, and continue to yell at him, of course taking all necessary precautions that all thrown objects are clear of the detainee and will not coerce the detainee in any way.” Should this fail, Papas wants authorization to go into the so-called segregation phase, in which the detainee will have an empty sandbag placed over his head. He will then be transported while sandbagged, and then he will

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International Human Rights Network of Academies and Scholarly Societies undergo a body cavity search with the bag still over his head for the protection of himself as well as others. Following that, he will then be subjected to one of these 72-hour sleep schedules, or management plans, during which he will be interrogated continuously, using techniques described as fear up harsh, pride and ego-down, silence, and live music. Of course, please, please, can we use stress positions to “intensify” the approach? The question for us, and we’re still undergoing our factual inquiries, is What did interrogation plans look like? and Which physicians and psychiatrists actually provided input into those plans and improved them? A psychiatrist or a physician on a BSCT would face a number of difficult ethical and legal questions, some easier than others. I’ve just flagged a few of them on the screen just now. They may be asked to review medical records to find a detainee’s weak spot ,or, when examining a detainee, they may suspect that he has already been abused, or they may be asked to approve an interrogation tactic and confirm that the detainee won’t suffer long-term harm, or be asked to administer drugs to render the detainee more compliant. I move on in the list to an issue that I think is important: psychiatrists or physicians may often see or may have seen aggressive interrogations, but take the view that it didn’t pose a risk to the physical or mental health of the detainee and may not, as a result, have been inclined to intervene. That, in our view, is problematic for reasons I’ll make clear in a minute. We’ve already heard a great deal about the scope of applications and some of the arguments of the administration regarding the scope of application of the laws of war and international human rights law, so I don’t want to repeat the arguments about scope, but I just want to draw your attention to the standards themselves for a minute. First, if one looks at the Geneva Conventions—let me make one scope point in parentheses: Secretary of Defense Donald Rumsfeld acknowledged that the Geneva Conventions applied to detainees in Iraq, irrespective of their arguments about Guantanamo Bay. They accepted that the conventions applied to the detainees in Iraq. Of course, as we know, the now Attorney General Alberto Gonzalez had previously described some of these provisions that I have on the screen as being quaint and obsolete, but, nonetheless, they are the provisions of those conventions. It is important to note that there is not simply a prohibition on torture or coercion. You see in Article 17 there is also the requirement that prisoners of war be treated humanely and protected from acts of violence and intimidation, and, indeed, the threshold is incredibly low in Article 17. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind. One can see that withholding meals, for example, from a detainee would clearly violate Article 17. I won’t say any more about the common Article 3 because Nigel has already spoken about that. In addition, the Fourth Geneva Convention protects civilian detainees, and, again, one sees the requirement for humane treatment, the prohibition on physical and moral coercion. Then interestingly in Article 32, the parties specifically agree that they are prohibited from taking any measure of such a characteristic as to cause the physical suffering of protected

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International Human Rights Network of Academies and Scholarly Societies persons. This applies not only to such things as torture and medical and scientific experiments, but also to any measures of brutality, whether applied by civilian or military agents. This is interesting, because civilian contractors, such as CACI International, were involved in the interrogations at Abu Ghraib. It is important to note that there are some violations of the Geneva Conventions, such as withholding a meal from someone for hours, which would simply be a violation, but other forms of conduct rise to the level of grave breaches. They, of course, include torture, inhuman treatment, or willfully causing great suffering or serious injury to body or health—and of course these are war crimes in the United States too. The provisions of the International Covenant on Civil and Political Rights, about which we have already heard, prohibit not only torture but also cruel, inhuman, or degrading treatment or punishment. Also in Article 10 the emphasis is on the obligation to treat with humanity and respect for inherent dignity. Similarly, one sees in the provisions in the torture convention, not simply the absolute prohibition on torture, even in cases of states of emergency, but also the obligation to review interrogation rules and practices to ensure that cruel, inhuman, or degrading treatment doesn’t occur. Again, I won’t make the point about the U.S. reservations because you’ve heard that already. In addition there are some norms in the body of principles for the protection of all persons under any form of detention or imprisonment adopted by the U.N. General Assembly in which there is a very broad definition compared to the torture convention of the kinds of conduct that is prohibited including the temporary deprivation of the use of ones natural senses, sight or hearing, awareness of place and passing of time, and, again, the requirement that no detained person shall be exposed while being interrogated to threats or methods of interrogation which impair his capacity of decision or judgment. Before I hand this back to Gregg, let me say that the implications of these international legal laws are important because it is clear, particularly in the case of the Geneva Conventions, that the legal barriers are going to be crossed long before the mental or physical health of the detainee is implicated. Medical personnel who design or monitor or participate in interrogations will violate international law if they solely keep their eye on the question of mental and physical health. In fact, as may be the case, if they design, monitor, or participate in interrogation plans of interrogations that rise to the level of torture or inhuman treatment, then obviously they will also be culpable for war crimes. It seems to us there is also another important question, which is not simply placing physicians in positions in which they are being asked to apply medical standards without regard to legal standards, but also that institutional culture may also make it very difficult for physicians. I’ve heard some military physicians express their desire not to be involved in this process. It may be difficult for medics to intervene because of institutional pressure. In Abu Ghraib, they are relying on these people to save them from incoming mortars and all the rest of it, and they may be reluctant to intervene or want to save their intervention ammunition for the most egregious abuses. Of course, the effect of physicians and psychiatrists holding back is that

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International Human Rights Network of Academies and Scholarly Societies they may implicitly encourage those involved in the interrogations to use more abusive techniques. Gregg will now deal with the question of whether, in addition to international law constraints, there are ethical constraints that prohibit physician participation. Bloche – There are several international codes of medical ethics that bear on this question, and, unfortunately, these are not nearly as much help as they ought to be or could be. First of all, there is the World Medical Association Declaration of Tokyo in 1975. This was a series of provisions that basically say a doctor shouldn’t participate in torture. The doctor shall not countenance, condone, or participate in the practice of torture or other forms of cruel, inhuman, or degrading procedures, etc. The doctor shall not provide any premises, instruments, substances, or knowledge to facilitate the practice of torture. The doctor shall not be present during any procedure during which torture occurs, etc. Then there are the U.N. Principles of Medical Ethics, which are thought to be a bit more specific and perhaps a bit more helpful. The U.N. Principles of Medical Ethics has a very long title, but basically the idea is that principles and medical ethics bear on the question of torture. This was approved by the General Assembly more than 20 years ago. Therefore, it has a legal status, as well as, although there is some question about this, perhaps being evidence of customary international law. Let’s look briefly at Principle 2 from the U.N. Principles of Medical Ethics: “It is a gross contravention of medical ethics as well as an offense under applicable international instruments for health professionals, particularly physicians, to engage actively or passively in acts which constitute participation in, complicity in, incitement to, or attempts to commit torture or other cruel, inhuman, or degrading treatment or punishment.” We know what participation is, or complicity, but these are plainly terms of art. Then there is Principle 4, which may help us a bit more: 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 [we’re getting more specifics] in a manner that may adversely affect the physical or mental health or condition of such prisoners or detainees AND [emphasis added] (it is an AND not an OR) which is not in accordance with the relevant international instruments; (The question becomes, what are the relevant international instruments? Jonathan has already touched on some of them.) (b) To certify, or to participate in the certification of, the fitness of prisoners or detainees for any form of treatment or punishment that may adversely affect their physical or mental health AND [emphasis added] which is not in accordance with the relevant international instruments, OR [emphasis added] to participate in any way in the infliction of any such treatment or punishment which is not in accordance with the relevant international instruments.

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International Human Rights Network of Academies and Scholarly Societies There is a lot of buck-passing here as to what the relevant international instruments are and to the questions that we have been talking about—the famous Judge Bybee memo to Gonzalez, defining torture, etc. Principle 3 may be more helpful; “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 or mental health.” This seems more sweeping in its reach than Principle 2 or 4, but Principle 3 allows for professional relationships for the purpose of evaluation—in other words, for a non-therapeutic purpose. Assessing ones fitness for interrogation? Perhaps. Does or should this permit a psychiatrist or other health professional to put his or her skills to use on behalf of the interrogation mission, subject only to international laws and constraints, or are there other additional ethical constraints involved? Footnote here—notice the murkiness with respect to health professionals who are not physicians—should a psychologist be constrained by the same ethics norms as a physician, or is a psychologist freer with respect to these ethics norms? There are three ethical stories that get told, consciously or semiconsciously, about this question of complicity in interrogation. First there is the Hippocratic ideal of undivided loyalty. There is the related notion, although it is not a line from the Hippocratic corpus, “First do no harm,” “into each house I enter, I shall enter only for the good of my patients.” One translation of the Hippocratic oath. The implication here is just say no. Stay out of the business of interrogation. Then there is “medical ethics don’t apply.” A physician attached to MI, to assist in interrogation, isn’t acting as a physician and isn’t bound by ethics—people in the Pentagon say this. The implication here is that it is not unethical to employ clinical skills to support interrogation. And then there is the so-called mantra of the modern bioethics movement—autonomy, munificence, non-malevolence, and justice. Let’s look briefly at each of these three. First, the Hippocratic ideal of undivided loyalty is appealing in its moral clarity but it is at odds with the pervasive reality that medicine serves public purposes in pervasive fashion, often at the expense of individuals. Examples include forensic psychiatry, eligibility for employment, insurance or other benefits, and public health—for instance vaccinations to achieve immunity. When my kid got vaccinated, that vaccination created extra risk for her without any benefit because—since everybody else had been vaccinated—she already had immunity. So doctors routinely impose a risk or harm to the individual for the purpose of some collective good. This underscores the need to draw lines between acceptable and unacceptable social purposes and perhaps to be too blunt, it gives the lie to the Hippocratic ideal of undivided loyalty. At least it underscores that there are exceptions. Then there is the flip side. We toss it out the window. Medical ethics don’t apply. The physician isn’t acting as a physician. This is the emerging Pentagon position, although they find ways of not admitting it. Some of you may be familiar with the so-called “Church Report.” Admiral Church’s so-called “comprehensive inquiry” is the only thing that has been released as an unclassified summary that kind of hints at the Pentagon officially taking this position. But,

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International Human Rights Network of Academies and Scholarly Societies others within the Pentagon don’t acknowledge it. It has also been urged recently by some forensic psychiatrists and occupational health physicians, and this issue has been disputed in the context of the American debate about clinical evaluation that determines whether someone is competent for execution. This notion is at odds with the reality that it is medical knowledge and skill that is being applied. It is the doctor being called upon because he or she is a physician, and it bootstraps on the cultural authority and the humanitarian ethos of medicine. Finally, there is the bioethics mantra, “autonomy, munificence, etc.” Well, autonomy is of little help here. Military detention just isn’t a situation that most view as conducive to the exercise of autonomy, and detainees don’t choose to be interrogated. And the obligations of beneficence and non-malevolence to individual patients who are clinical subjects don’t address dilemmas created by putative social benefits. And, finally, justice—little guidance here. It considers larger social purposes but it begs the larger question of whether interrogation and counter resistance practices at issue are desirable. Where we are ending up is with an appeal for a move toward an ethics of clinical role conflict—an ethics that acknowledges the problem of conflicting clinical loyalties or dual loyalties and the reality that medicine serves other social purposes, pervasively, but still holds as primary, medicine’s obligation to individual patients. It is our belief that the bioethics movement of the last 30 years or so has not paid nearly enough attention to the role of the old Hippocratic ideal of loyalty and care and we have to get back to that while, at the same time, acknowledging that medicine serves social purposes. Wiesel – We had cases in Turkey of doctors who reported that some of the prisoners had been tortured, and the doctors, in turn, were imprisoned because of their reports. I was impressed because the standards of doctors in Turkey seem to differ from what we have seen happening in the cases that you’ve described here. Bloche – [in answer to an inaudible question] There was a lack of translators in Iraq. At Abu Ghraib, there was a large number of detainees with psychiatric problems. In addition to there being no psychiatrists, there were very few people who could translate what the detainees were saying. As part of the interrogation team, however, there were various personnel who did have experience in languages. Some of these were employees of an American corporation called Titan and, indeed, a few members of the military forces themselves were translators. One of them, Erik Saar, just published a book called Inside the Wire. Derek Denton, National Academies Forum of Australia – Have any medical staff been struck from the medical registers as a result of participating in these procedures you are outlining? Bloche – That has a really short answer—no. Denton – Second question: Is there any evidence that could be put up by the government that these procedures that they’ve followed have revealed, unambiguously and unequivocally, data that prevented large-scale destruction and lots of people being blown up and so on? Can they use that sort of argument as a counter? Bloche – We know of no example of this happening. I would bet that if they had one, they would find a way to handle the classification issues to bring it forth.

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International Human Rights Network of Academies and Scholarly Societies Elizabeth Hodgkin – I work for Amnesty International. One thing I want to ask about is the role of medical organizations in acting proactively or taking action about doctors’ interrogation centers. We had a lot of discussions with the Israeli Medical Association, which wasn’t taking much of a role in stopping doctors from participating in interrogations. They were not exactly participating in interrogation sessions, but examining detainees before they were interrogated. Bloche – A great example is the Chilean Medical Association during the Pinochet regime, when its leaders took great risks. We Americans haven’t done so well. The American Medical Association (AMA) simply has not come out with any sort of denunciation of this. There was a limpid letter by the AMA President in a recent issue of the New England Journal of Medicine in response to our article on medical involvement in interrogation. We tried to point out in our response how limpid it was. That was disappointing to us. Rodley – National medical associations from time to time have behaved well. The Mauritanian one did, in refusing to allow their members to participate in amputations, for example. There is nothing at the international level. There has been international level stuff, including at the World Medical Association, to protect doctors who comply with medical ethics, but nothing to discipline doctors who don’t comply. I think there is a serious gap. Bloche – After 1979, General Zia, the dictator of Pakistan, enacted an Islamic law including requirements for amputation. The Pakistani Medical Association got together and successfully organized an embargo of medical involvement in these procedures. The AMA, by contrast, according to a couple of sources that we have spoken to, told us that they don’t want to be too harsh on this because they don’t want to alienate the Bush administration vis-à-vis medical tort reform and keeping medical reimbursement rates under our Medicare program rising. Question – [inaudible] I am a human rights lawyer in London. You raised an interesting point about semantics. The issue of setting a precedent or setting an example is being raised. The actions of the Americans set a very dangerous example. Rodley – It has been raised by many commentators, and you’ve heard it stated in this room by many. The United States, people say, holds itself out as an authority, as a beacon, so if they backslide, that can have an effect on others. First, the United States is a superpower, and international law is made up by states. What the superpowers say and do is really quite important for the content of international law. Second, they have serious influence, so what is good for the U.S. goose may also be good for some poor tin pot dictatorship’s gander. That is very much a part of the problem; you’re quite right. Marino Protti – I am from the National Academy of Sciences of Costa Rica. Is there any international interest in changing or rewording the Geneva Convention on Torture to close the doors that the United States is using, or is it not needed because it is obvious that they are just playing with semantics? Rodley – The problem is that it is not as simple as that. Who is going to be doing the rewording? It is the states themselves. International law is created by states. What is happening now is that

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International Human Rights Network of Academies and Scholarly Societies the United States, in the U.N. Commission on Human Rights, for example, is trying to avoid language in the resolution on torture that focuses too strongly on cruel and inhuman and degrading treatment or punishment. What would happen if there were an attempt to rewrite the Torture Convention or the Geneva Conventions? The United States would have a very influential role in making sure that, if anything, things went backward rather than forward to the extent they wanted them to go backward rather than forward. Wiesel – I don’t want to criticize the whole country, but there are problems here as well, so both the United States and Britain have used methods that would not be condoned. Question – Lawyers take both sides, and we are arguing that one takes one side and the other defends the other one. You are saying that, according to the U.N. conventions—I don’t understand them—you have a suspect and you want to get information from him and he refuses to speak. What do you do? How do you get that information? I’m not condoning these things. If you want to get information from a suspect, but you are not allowed to do certain things to get that information, and he refuses completely to speak, what is the next thing to do? Rodley – The next thing is to try and find professional ways of getting the evidence. There is a human right not to be compelled to testify against oneself. There is a human right of the presumption of innocence. One thing you do not do is coerce people into testifying if they don’t want to speak. That is the answer to your question. There is no next thing. The next thing, if it is done, that you may have in mind, is likely to be a crime committed by law enforcement officials, and that is not a very good way of bringing about respect for the law. [End of morning session.]