Ethics AbAndonEd: Medical Professionalism and Detainee Abuse in the “War on Terror” A task force report funded by IMAP/OSF November 2013 Copyright © 2013 Institute on Medicine as a Profession Table of Contents All rights reserved. this book or any portion thereof may not be reproduced or used in any manner whatsoever without the express written permission of the AboUt iMAP And osF v publisher except for the use of brief quotations in a book review. AcknoWlEdgMEnts vii Printed in the United states of America First Printing, 2013 ExEcUtivE sUMMArY xi institUtE on MEdicinE As A ProFEssion Findings And rEcoMMEndAtions xxxi columbia University, college of Physicians and surgeons 630 West 168th street P&s box 11, new York, nY 10032 introdUction 1 www.imapny.org chAPtEr 1: The role of health professionals in abuse of 11 prisoners in U.S. custody chAPtEr 2: Organizational structures and policies that 55 directed the role of health professionals in detainee abuse chAPtEr 3: Hunger strikes and force-feeding 83 chAPtEr 4: Education and training of military physicians on 121 treatment of prisoners chAPtEr 5:Health professional accountability for acts of 135 torture through state licensing and discipline tAsk ForcE MEMbEr biogrAPhiEs 157 APPEndicEs 1. Istanbul Protocol Guidelines for Medical Evaluations of 169 Torture and Cruel, Inhuman or Degrading Treatment, Annex 4 2. World Medical Association Declaration of Malta on Hunger Strikes 175 3. Ethics Statements and Opinions of Professional Associations on 181 Interrogation and Torture 4. Professional Misconduct Complaints Filed 201 notEs 215 About IMAP and OSF Funding for this report was provided by: thE institUtE on MEdicinE As A ProFEssion (iMAP) aims to make medical professionalism a field and a force. it promotes this mission through research and policy initiatives. Four key values underlie medical professionalism: physicians and the health care system must be committed to (1) altruism and promotion of patients’ best interests, (2) effective physician self-regulation, (3) maintenance of technical competence, and (4) physician civic engagement to promote patient and societal well-being. thE oPEn sociEtY FoUndAtionswork to build vibrant and tolerant soci- eties whose governments are accountable to their citizens. Working with local communities in more than 100 countries, the open society Foundations sup- port justice and human rights, freedom of expression, and access to public health and education. Acknowledgments tAsk ForcE MEMbErs: scott A. Allen, Md, FAcP steven reisner, Phd University of California, Riverside Coalition for an Ethical Psychology george J. Annas, Jd, MPh hernán reyes, Md, FMh ob/gyn Boston University International Committee of the Red Cross karen brudney, Md david J. rothman, Phd Columbia University Columbia University richard n. gottfried, Jd leonard s. rubenstein, Jd New York State Assembly Johns Hopkins University vincent iacopino, Md, Phd steven s. sharfstein, Md, MPA Physicians for Human Rights Sheppard Pratt Health Systems Allen s. keller, Md Albert J. shimkus, Jr. New York University U.S. Naval War College robert s. lawrence, Md Eric stover Johns Hopkins University University of California, Berkeley steven h. Miles, Md gerald E. thomson, Md University of Minnesota Columbia University Aryeh neier Frederick E. turton, Md, MbA, MAcP Open Society Foundations Emory University deborah Alejandra Popowski, Jd brig. gen. (ret.) stephen n. xenakis, Md Harvard University United States Army viii | Ethics AbAndonEd Acknowledgments | ix leonard rubenstein and gerald thomson provided overall leadership in the Funding for the project was provided by iMAP and the open society Foundations. organization of the task Force and the research, writing, and review of this report. the overview of clinically and ethically appropriate responses to hunger strikes The principal authors and reviewers of chapters and other sections are as follows. contained in chapter 3 was published in expanded form in hernán reyes, scott Institutional affiliations listed for identification purposes only. A. Allen, and george J. Annas, “Physicians and hunger strikes in Prison: confrontation, Manipulation, Medicalization and Medical Ethics,” World introdUction: david rothman, Aryeh neier Medical Journal 59, no. 1 (February 2013) and no. 2 (April 2013). it is used here review by steven Miles, leonard rubenstein, gerald thomson with permission. chAPtEr1: leonard rubenstein review by vincent iacopino, steven Miles, steven reisner, Albert shimkus, Eric stover, gerald thomson, stephen xenakis chAPtEr2: leonard rubenstein review by vincent iacopino, steven Miles, steven reisner, Albert shimkus, Eric stover, gerald thomson, stephen xenakis chAPtEr3: hernán reyes, scott Allen, leonard rubenstein, george Annas review by steven Miles, gerald thomson chAPtEr4: karen brudney, Frederica stahl (not a task Force member), with assistance from david rothman review by leonard rubenstein, steven Miles chAPtEr5: deborah Popowski, kate nicholson, with contributors shuenn (Patrick) ho, Pooja nair (nicholson, ho, and nair are not task Force members) review by richard gottfried, leonard rubenstein Eric stover read the entire report for consistency, accuracy, and style. Albert Pierce, Phd, University Professor of Ethics and national security, national defense University, participated in task Force discussions as an observer. Jonathan Marks, director, bioethics Program, Pennsylvania state University, reviewed and provided extensive comments on draft chapters of the report. sondra crosby, Md, Associate Professor of Medicine, boston University, reviewed chapter 3. in addition, the task Force thanks the following individuals for research assistance: Frederica stahl, Whitney Adair, katherine Footer, shuenn (Patrick) ho, sarah humphries, and Pooja nair. Jonathan cobb read and contributed helpful comments on the entire manuscript. laura sider Jost edited the manuscript. other individuals who made substantial contributions to this report wish to remain anonymous. Executive Summary thE 9/11 tErrorist AttAckson the United states resulted in U.s. govern- ment-approved harsh treatment and torture of detainees suspected of having information about terrorism.1Military and intelligence-agency physicians and other health professionals, particularly psychologists, became involved in the design and administration of that harsh treatment and torture—in clear conflict with established international and national professional principles and laws.2 in 2010, the institute on Medicine as a Profession (iMAP) and the open society Foundations convened the task Force on Preserving Medical Profes- sionalism in national security detention centers (task Force) to examine what is known about the involvement of health professionals in infliction of torture or cruel, inhuman, or degrading treatment of detainees in U.s. custody and how such deviation from professional standards and ethically proper conduct occurred, including actions that were taken by the U.s. department of defense (dod) and the ciA to direct this conduct. the task Force met regularly between december 2009 and January 2012. its members authored and reviewed chapters and policy proposals for the group to consider. this report contains the task Force’s analyses, findings, and recom- mendations. the report is based on information from unclassified, publicly avail- able information. Where gaps in knowledge exist, we note that information is missing and discuss its importance and its potential impact on the issue assessed, as well as the value of further investigation. in a few instances, a member of the task Force had personal knowledge of facts discussed, but consistent with an approach that relied on the public record, the report is not based on information obtained by any of its members in another capacity. Additionally, because of the professional roles they play, some members of the task Force may have a person- al stake in the report’s findings and conclusions; in such instances, we disclose that fact in the discussion. the task Force sought consensus on findings and xii | Ethics AbAndonEd Executive Summary | xiii recommendations. Members agreed to approve the final product, however, even violations against detainees progressed differently in the military and when they did not agree with every statement and recommendation. the ciA, both facilitated that involvement in similar ways, including A note on the terminology used in this report: When a document refers to a undermining health professionals’ allegiances to established principles specific category of medical personnel (e.g., physician or psychologist), this of professional ethics and conduct through reinterpretation of those report refers to that individual using the same term. in many of the documents, principles. however, no specific occupation is identified. in such cases, we use more gener- 3. the secrecy surrounding detention policies that prevailed until 2004– al terminology, either “health professional,” where the context is clear that it 2005, when leaked documents began to reveal those policies. secrecy refers to someone holding a professional license, or “medical personnel,” which allowed the unlawful and unethical interrogation and mistreatment of includes all occupations in the health field, including physicians, psychologists, detainees to proceed unfettered by established ethical principles and registered nurses, nurse practitioners, physician assistants, corpsmen (U.s. standards of conduct as well as societal, professional, and navy or Marine-trained enlisted medical personnel), medics (U.s. Army-enlist- nongovernmental commentary and legal review. ed medical personnel), and technicians. in ciA documents, “medical officer” is frequently used. According to current position descriptions on the ciA’s web- these key elements, as well as the task Force’s recommendations for reme- site, a medical officer is a physician,3but the ciA’s office of Medical services diating the participation of health professionals in detainee torture or cruel, (oMs) guidelines on medical support for interrogation, which are discussed inhuman, or degrading treatment, are summarized below and addressed in extensively in this report, refer to physician assistants as medical officers as detail in the body of this report. well,4so the task Force does not assume that a ciA medical officer involved in interrogation activities is a physician unless the document so specifies. one other note on terminology: in the text, we refer to people in custody as The development and use of torture and cruel, “detainees” because this has become the common way to refer to them in the inhuman, or degrading treatment in U.S. detention centers media and in reports. the task Force recognizes, however, that this designa- tion stems from the decision of President bush to deny prisoner-of-war status the origins of torture and cruel, inhuman, and degrading treatment of detainees to them. by using the term detainee, the task Force does not convey endorse- are now well documented through released dod and ciA documents and con- ment of this decision. the recommendations use the word “prisoner” as it is gressional reports, as well as independent investigations by journalists and forward-looking. human rights organizations.5 the task Force has determined that actions taken by the U.s. government immediately after 9/11, the United states took captives in Afghanistan and immediately following 9/11 included three key elements affecting the role of elsewhere. those detained by the U.s. military, numbering several hundred at health professionals in detention centers: first and thousands later, were held in Afghanistan, then at guantánamo bay 1. the declaration that as part of a “war on terror,” individuals captured starting in January 2002, and then in iraq after the U.s. invasion in 2003. other and detained in Afghanistan, Pakistan, and elsewhere were “unlawful U.s. captives, through a process of “extraordinary rendition,” were secretly combatants” who did not qualify as prisoners of war under the geneva transferred to third countries, where it was known that torture was used during conventions. Additionally, the U.s. department of Justice approved of interrogation. the ciA had its own captives, approximately 100 in number, interrogation methods recognized domestically and internationally as identified as “high-value” detainees, who were kept in secret ciA-run “black constituting torture or cruel, inhuman, or degrading treatment. site” facilities for interrogation. What happened at those sites remains classi- fied, except for detainee accounts reported by the international committee of 2. the dod and ciA’s development of internal mechanisms to direct the the red cross (icrc), as well as Justice department legal opinions and a ciA participation of military and intelligence-agency physicians and inspector general’s report. the ciA was also involved to an unknown extent in psychologists in abusive interrogation and breaking of hunger strikes. interrogations of detainees at military facilities. Although the involvement of health professionals in human rights xiv | Ethics AbAndonEd Executive Summary | xv the publicly stated goal of interrogations at U.s. detention facilities was to by the summer of 2002, a secret memorandum from the Justice department’s obtain information that would allow the United states to identify and stop poten- office of legal counsel, issued in response to a ciA request, claimed that an ini- tial terrorist strikes and capture additional terrorists. traditional guidelines for tial core set of 10 “enhanced” methods could be used legally as part of the inter- interrogation used by the Fbi and the military eschewed and indeed prohibited rogation program designed for Abu Zubaydah, a designated high-value detainee. methods that were in violation of the geneva conventions and the convention the memorandum restricted the definition of severe mental or physical pain or Against torture and other cruel, inhuman or degrading treatment and suffering in a manner that permitted draconian interrogation methods, includ- Punishment, treaties that the United states, as a party, is bound to follow. officials ing attention-grasping (grasping a detainee with both hands and drawing him at the highest levels of the government rejected these guidelines, however, stating toward the interrogator), throwing a detainee repeatedly against a wall, facial that they believed traditional methods of interrogation were too time-consuming holds (forcibly holding the head immobile), facial slaps, cramped confinement, to prevent feared imminent attacks. As a result, almost immediately after 9/11, the wall-standing (forcing a detainee to support his weight on his fingers against a U.s. government adopted abusive methods of interrogation. wall), stress positions, sleep deprivation, use of insects, and waterboarding. the United states agents subjected the first detainees taken into custody in Justice department based its judgments on information provided by the ciA and Afghanistan in late 2001, held principally at detention facilities at bagram Air the dod, stating that those judgments were founded on experiences with the less base and in kandahar, to beatings, exposure to extreme cold, physical suspen- harsh sErE training of U.s. service personnel as well as on consultation with out- sions by chains, slamming into walls, sleep deprivation, constant light, and side psychologists. forced nakedness and others forms of humiliating and degrading treatment.6 the Justice department memorandum stated that health professionals were Although the interrogation methods initially used in Afghanistan appear to consulted in the development of “enhanced interrogation” techniques and that have been ad hoc, a theory of interrogation soon emerged that was based on “a medical expert with sErE experience” would be present during certain inter- inducing fear, anxiety, depression, cognitive dislocation, and personality disin- rogations and “the procedures would be stopped if deemed medically necessary tegration in detainees to break their resistance against yielding information. to prevent severe…harm….”10 detainee accounts reported by the icrc stated based on this theory, U.s. agents developed new interrogation methods that medical personnel—whose specific professions were not revealed to the designed to bring about “debility, dependency and dread.”7 the oMs summa- detainees—were present during ciA interrogations and occasionally intervened. rized the approach as seeking to “psychologically ‘dislocate’ the detainee, maxi- over time, the role of medical personnel in ciA interrogations expanded. in mize feelings of vulnerability, and reduce or eliminate the will to resist our 2003, the oMs drafted a first set of “medical guidelines” for interrogation that, efforts to obtain critical intelligence.”8 while heavily redacted in the publicly released version, described a policy role for the oMs that entailed reviewing and approving the use of enhanced inter- thE dEvEloPMEnt oF rogation methods. the review included assessing the potential harms of enhanced ciA intErrogAtion MEthods interrogation methods and placing limits on their use. the oMs advised limits With early direction from the ciA, the new interrogation methods were devel- such as stopping exposure to cold just at the point where hypothermia would like- oped by interrogators and psychologists from techniques used in the pre-9/11 ly set in, stopping loud noise before permanent hearing loss would occur, and survival, Evasion, resistance, Escape (sErE) program for training U.s. armed restricting the use of stress positions to a maximum of 48 hours. the oMs services personnel to resist coercive interrogation and mistreatment if captured. guidelines also described an oversight role for medical personnel during inter- the interrogators and health professionals transformed training methods used to rogations; they would be present to ensure those interrogations would not cause resist torture into abusive methods of interrogation to be used on detainees.9 serious or permanent harm. in the case of waterboarding, the guidelines advised At the same time, bush administration officials laid the legal groundwork for keeping resuscitation equipment and supplies for an emergency tracheotomy a policy that would abandon restrictions on torture and cruel, inhuman, or on hand. the guidelines advised that an unresponsive subject must be righted degrading treatment imposed by treaty obligations and U.s. criminal law. Early immediately and a thrust just below the breastbone administered by the inter- in 2002, the White house counsel declared that the geneva conventions did rogator. the guidelines further stated: “if this fails to restore normal breathing, not apply to detainees at guantánamo. aggressive medical intervention is required. Any subject who has reached this xvi | Ethics AbAndonEd Executive Summary | xvii degree of compromise is not considered an appropriate candidate for the water- forced the detainee to sit painfully for as many as 18 hours a day; (d) abdominal board, and the physician on the scene cannot concur in the further use of the and facial slaps; (e) forcibly holding the head immobile; (f) pushing and slam- waterboard without c/oMs consultation and approval.”11 ming the detainee against walls; (g) grabbing the neck area during questioning; in 2005, the department of Justice issued a memorandum on the legality of and (h) bland, low calorie diets. 14 interrogation techniques—expanded from the initial core set of 10—that was the department of Justice pronounced all of these techniques to be legal based on ciA-described experiences with interrogations of detainees between under U.s. law. interrogation methods used but not reviewed by the Justice 2002 and 2005.12the descriptions and their differences from the 2002 memo- department for legality included threatening detainees and their families, cock- randum, which cites sErE descriptions, are particularly revealing since the ing a gun next to a detainee’s head, and isolation. in addition, the ciA imposed 2005 memorandum includes accounts of the methods actually used on conditions of confinement that contributed to the overall intimidation, coer- detainees rather than those employed in the sErE training program. cion, degradation, and suffering of detainees. detainees were also subjected to the 2002 memorandum described sleep deprivation as keeping prisoners beatings and sexual and cultural humiliations. awake for no more than 48 hours. if a detainee fell asleep during that time, he the 2005 Justice department memorandum relied heavily on purported was awakened. the 2005 memorandum described periods of sleep deprivation medical opinion, supplied by the ciA, to claim that the enhanced interrogation of up to 180 continuous hours—more than a week—that could be followed by methods would not inflict severe mental or physical pain or suffering, as defined 8 hours of sleep and then repeated. detainees were kept awake by being shack- by the memorandum, on the detainees. the task Force finds, however, that there led in a standing position, hands to the ceiling and feet to the floor, fed by deten- was no basis in either clinical experience or research studies to substantiate these tion personnel and diapered so that nothing interfered with the standing posi- opinions. indeed, the oMs guidelines discussing each method are bereft of cita- tion. the memorandum acknowledged that the position produced swelling of tions to the extensive medical literature on torture. the legs. the detainees were nude. Ambient temperatures during sleep depriva- tion were not described, but nudity was described in the 2005 memorandum as thE U.s. MilitArY And thE introdUction a separate and often concurrent interrogation technique that was accompanied oF ciA MEthods oF intErrogAtion by air-conditioned ambient temperatures often as low as 68 degrees and on the evolution of abusive interrogation methods in the U.s. military took a more occasions as low as 64 degrees. convoluted course than in the ciA because of significant internal opposition to Water-dousing was not included in the 2002 memorandum, but the 2005 the techniques. nevertheless, under pressure from the civilian leadership, by memorandum described nude detainees who were kept in environments with the end of 2002 the military implemented sErE-based interrogation strategies temperatures as low as 64 degrees and doused with cold water of 41 to 59 at guantánamo, and later in iraq and Afghanistan as well. degrees that was poured from containers or sprayed from hoses. Aside from pro- in early 2002, the dod established the first of its behavioral science consul- ducing extreme discomfort, such a procedure risked producing hypothermia, a tation teams (bscts), which typically but not always consisted of a psycholo- dangerous and potentially deadly drop in body temperature. gist, a psychiatrist (a physician specializing in mental health), and a mental Waterboarding, described only briefly in 2002, was meant to induce the feel- health technician (a non-physician, armed services–trained enlisted person), ing and threat of imminent death. in the 2005 memorandum, waterboarding that played a key role in developing the sErE-based interrogation methods. in was described as causing the sensation of drowning and carrying risks of aspira- late 2002, the first bsct, deployed at guantánamo, recommended the use of tion, airway blockage, and death from asphyxiation. sleep and sensory deprivation, exposure to extremes of noise and temperatures, other methods of enhanced interrogation reviewed for the ciA by the stress positions, and other enhanced methods (waterboarding was not includ- department of Justice in 2005 included (a) stress positions consisting of sitting, ed). the bsct recommendations were transmitted up the chain of command kneeling, and leaning in awkward positions for long periods of time; (b) stand- and largely approved by the secretary of defense. implementation began in ing facing a wall 4–5 feet away with arms outstretched, fingers resting on the november 2002 during a 54-day interrogation of Mohammed al-Qahtani, who wall to support body weight, with the detainee not permitted to reposition was alleged to have been a part of the 9/11 hijacking group but was denied entry hands or feet; (c) cramped confinement in a small space that in some cases to the United states. the U.s. military deprived him of sleep through the use of