Monday, May 16, 2011
Diagnosing Torture: Should doctors decide when an interrogation has gone to far?
by Nick Werle
In the wake of Osama bin Laden’s killing on May 2, veterans of the Bush Administration have hit the airwaves in an effort to reserve for their policies a portion of the credit for the success of SEAL Team Six’s covert lethal mission in Abbottabad. Chief among the many Bush policies they credit with enabling President Obama’s team to kill bin Laden are those permitting the torture and “rendition” of foreign combatants. According to John Yoo, Karl Rove, and their cohort, so-called “enhanced interrogations” led directly to bin Laden’s suburban compound in Pakistan. However, none of the details of the four year-long intelligence trail leading to the SEAL operation released by the current administration suggests that the C.I.A. gained any useful information from detainees subjected to waterboarding or other controversial techniques. Indeed, two detainees tortured at Guantánamo Bay – including the “9/11 mastermind,” Khalid Shaikh Mohammed, who was waterboarded 183 times – intentionally misled interrogators about the identity, whereabouts, and operational role of Abu Ahmed al-Kuwaiti, bin Laden’s personal courier and the thread that led American spies to the $1 million compound in Abbottabad.
The renewed agitation to rationalize past torture by American intelligence operatives and keep the door open for further abuses comes not only after right wing pressure stymied several promised Obama administration reform efforts but in the wake of further violations of civil liberties. While Obama banned the use of enhanced interrogation techniques on detainees, the questions of what practices constitute “torture” remains a pressing one. The Administration’s tripartite legal scheme for handling the military prosecutions of Guantánamo detainees depends crucially on determinations of whether evidence has been tainted by torture. But some contend that the question is not merely historical; US Glen Greenwald, a former constitutional attorney and legal commentator for Salon.com, has argued that the harsh conditions of accused Wiki-leaker Bradley Manning’s detention in a Marine brig amount to torture. Indeed, some doctors argue that long-term solitary confinement, a practice widely employed in American prisons, is a form of torture in itself.
In early 2009, before the failure of President Obama’s attempt to close the detention facility at Guantánamo Bay, The Washington Post reported the first on-the-record statement from a high-ranking Administration official acknowledging that C.I.A. had tortured detainees. Susan Crawford, who was named convening authority of military commissions by Defense Secretary Robert Gates in February 2007, told the Post’s Bob Woodward that “We tortured [Mohammed al-] Qahtani. His treatment met the legal definition of torture. And that’s why I did not refer the case” for prosecution. Although Crawford’s statement is the most senior admission of both the existence and the implications of American policy disregarding the Geneva Conventions, national, and military law, it barely caught public notice, since it only verified what the country already knew and didn’t want to hear.
While this statement comes from a prosecutor whose case has been indelibly tainted by officially sanctioned misconduct, its details reveal the contorted logic of the government’s human rights policy in the age of American torture. Woodward explains how Crawford ultimately decided to define this detainee abuse as torture:
Crawford, 61, said the combination of the interrogation techniques, their duration and the impact on Qahtani’s health led to her conclusion. “The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent. . . . You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge” to call it torture, she said.
Here, medical expertise has been put at the service of a legal system, which follows rules made up along the way, in order to classify this particular case as an official instance of torture. Though many would argue that allowing the discipline of medicine to scientifically define the limits of torture is the only logical way to approach the legal question of whether a particular act constitutes an impermissible instance of torture, there are subtle consequences of this choice.
While it was not inevitable that medicine would have be tapped to explain torture today – centuries after the US Constitution banned “cruel and unusual punishment” – it is certain that the existing legal system cannot handle this new challenge alone. Insofar as official sanction of coercive interrogation methods is still restricted to a shadow legal system of secret memos and classified Justice Department opinions (masterminded by the team of David Addington, John Yoo, and I. Lewis “Scooter” Libby under the direction of Dick Cheney), mainstream legal discourse has no prescribed method for determining the current legal limits of torture. Indeed, the task of uncovering the extent of this shadow legal framework for Bush’s “War on Terror” is an ongoing and important process; the true degree to which this convoluted network of legal documents and signing statements has changed American law and national security practice is still unknown.
Now, the legal system is forced to turn to other domains in order to rebalance the operating definitions of its own categories. Medicine satisfies these needs on several levels. First, medical expertise is accorded a unique degree of impartiality that makes it a suitable basis for defining American notions of justice. The image of a doctor, guided by the morality of his Hippocratic Oath, unambiguously saving the life of a guilty man or an enemy soldier bestows medical opinion with respect for being both fair and unbiased. Second, the scientificity of medicine provides an apparently empirical basis for its judgments. Doctors are able to deploy the latest theories and tests to determine how a particular action affects the life-sustaining functions of the body or even provide a measurement for the amount of pain it causes. The results of these analyses can be finely parsed and quantitative limits can be declared. In this way, medicine is also objective, since it can theoretically be applied in the same way in every case. Finally, doctors have the requisite authority to serve as the arbitrators of contentious legal categories. Few other experts are entrusted with as much responsibility or paid as much respect.
Since the prohibition of torture is a fundamental tenet of American law, permanently enshrined in the eighth amendment to the U.S. Constitution, it is difficult to trace a domestic history of this particular medico-legal relationship. However, it might help to examine the role of medicine in the evolving debate over capital punishment, a contentious issue in which medicine has been a crucial player. The long history of American debate over executions has featured a continuing effort to minimize their barbarity and stimulated the development of a wide range of techniques from the gallows to the electric chair to the firing squad. At several points during the past two centuries, the Supreme Court has heard challenges to the constitutionality of particular execution methods, most recently in 2008. In Baze v. Rees, the Court faced the question of whether Kentucky’s use of the lethal three-drug cocktail, currently employed in thirty-six states, constituted cruel and unusual punishment. In a highly disputed, ninety-two page decision the Court ruled 7–2 in support of the protocol. There were two major issues at play in the case that might have value in trying to understand how the legal deployment of medical knowledge might work with respect to torture.
First is the issue of the medical supervision necessary for a constitutionally permissible lethal injection. The question before the court hinged on whether the three-drug cocktail could be administered properly, preventing the condemned from experiencing the undeniably painful death caused by the second and third drugs in the cocktail, pancuronium bromide and potassium chloride. The first drug, sodium thiopental, is intended to prevent an unusually cruel death by anaesthetizing the inmate at the beginning of the procedure. This relatively complex task requires a medically trained attendant to properly place an intravenous catheter and inject a sufficient amount of sodium thiopental to cause the condemned to go completely unconscious.
In her dissent, Justice Ruth Bader Ginsberg compares Kentucky’s execution procedure with those of other states. She notes that while Kentucky requires the two members of the IV team to be medically trained (one member is a phlebotomist, the other an EMT), these people leave the execution chamber after inserting the catheters; only the warden and the deputy warden remain in the chamber while the lethal drugs automatically flow one after the other into the inmate’s arm. Justice Ginsberg argued that since neither of the wardens have medical training nor do they make any attempt to determine whether the anesthetic successfully rendered the inmate unconscious, the risk of a painful death was too substantial. In contrast, other states, such as Missouri, require medical personnel to determine whether the first drug worked before continuing with the procedure. These safeguards ensure the inmate a “peaceful death.”
The problems surrounding this medical intervention are easy to imagine and have already caused problems with lethal injection proceedings. The Hippocratic Oath, which guides the ethical practice of medicine, forbids doctors from actions that intentionally harm a patient. In response to this unique challenge, Article 2.06 of the American Medical Association’s Code of Medical Ethics states, “A physician, as a member of a profession dedicated to preserving life when there is hope of doing so, should not be a participant in a legally authorized execution.” When a doctor violates this code by assisting in some aspect of a lethal injection procedure he risks losing his license, squandering his credibility, and harming his relationships with patients.
The situation is similar with regard to torture and interrogations; sections 2.067 and 2.068 of the AMA ethics code unequivocally prohibit physicians from participating in either practice. The rules not only prevent doctors from providing material assistance to interrogators but also prohibit supplying or withholding their professional knowledge in the service of intelligence agents. Physicians may not even “monitor interrogations with the intention of intervening in the process, because this constitutes direct participation in interrogation.” These standards clearly oppose the kind of physician involvement that would be necessary were torture’s legal definition to be defined by medical standards of harm. Even ex post facto medical evaluations of previous interrogations would be problematic, since doctors’ participation would enable intelligence personnel to get by with harmful actions that don’t meet the bar for classification as torture. This is analogous to the existing ban on doctors pronouncing inmates dead on the execution table. Medical participation at any stage in the interrogation process would force doctors to either violate their professional codes of conduct or require groups such as the AMA to unreasonably weaken their ethical expectations.
In the case of executions, government sometimes uses its legal power to help doctors skirt the ethical requirements of their craft. Many of the seventeen states requiring medical supervision of lethal injection have protections in place to shield physicians’ identities and grant them blanket immunity from attempts to strip them of their licenses. These deceptive measures would be unworkable in the context of torture. Under this regime, a doctor’s testimony about whether a particular act constituted torture would be one of the most contentious points of a terrorism prosecution. Concealing a doctor’s identity would undermine his very status as an expert witness. Doctors are also prohibited from consulting with prison guards, advising them when they have reached the limits of acceptable conduct. Indeed, critics argue that medical opinions placing prisoners under suicide watch can function as legal cover for unnecessarily harsh and degrading treatment. In a letter released by his lawyer in March, Bradley Manning described a three-day period in January when he was placed under suicide watch: “I was stripped of all clothing with the exception of my underwear. My prescription eyeglasses were taken away from me and I was forced to sit in essential blindness.”
The second important issue in Baze v. Rees is Kentucky’s use of the second drug, pancuronium bromide, which paralyzes the inmate, causes asphyxiation, and prevents muscle spasms while he dies. The legal danger is that this paralysis can prevent an insufficiently anesthetized inmate from reacting to the excruciating pain of potassium chloride coursing through the bloodstream, subjecting him to an unusually cruel death. In his highly critical concurrence, Justice John Paul Stevens pointed out that there is absolutely “no therapeutic purpose” in using pancuronium bromide. (This is a strange way of putting it;what is the therapeutic purpose of the other drugs? How can the therapeutic purpose even be defined if the therapy is execution?) While Chief Justice John Roberts’ plurality opinion argues, “the commonwealth has an interest in preserving the dignity of the procedure,” Justice Stevens contends that “Whatever minimal interest there may be in ensuring that a condemned inmate dies a dignified death, and that witnesses to the execution are not made uncomfortable… is vastly outweighed by the risk that the inmate is actually experiencing excruciating pain that no one can detect.” In many ways, this debate sounds like a modern, scientific version of the eighteenth-century French arguments over use of the Guillotine, a machine intended to reduce the brutality of public executions. The (albeit limited) biological science supporting the use of pancuronium bromide does not function medicinally but rather socially; it supports the material practice of justice by concealing what would otherwise be capital punishment’s visible disruptions of the peaceful penal narrative.
Indeed, this debate has been a recurring one; as new methods of sovereign violence are invented, the old styles of killing are immediately revealed to be inhumane and antiquated. Discipline and Punish, Michel Foucault’s seminal historiography of Western judicial punishment, connects this ongoing effort to humanize executions to the continual “disappearance of punishment as a spectacle” since the eighteenth century. In place of the now horrifying, all-day festivities surrounding medieval torture, modern penal systems conceal the shame of actual punishment inside prisons, restricting public view of the violence bound up in its practices. This process, pushed along by prison reform groups and changing standards of public morality, has severed the connection between punishment and the body of the condemned by eliminating pain as the constituent element of the legal penalty. Instead of punishing the inmate with horrific torture in the town square, modern penal systems aim to affect the soul of their convicts with the bidirectional pressures of loss of wealth or rights and forced programs of self-improvement. As a matter of fact, for the Baghdad Central Prison, the shiny new name for the notorious Abu Ghraib, the US renovated a prison complex built by Saddam Hussein. In an effort to modernize the institution, the Iraqi government had the prison repainted and outfitted the cellblocks with flat screen televisions and new facilities including a barber shop, a sewing workshop, a library, a computer lab, and a playground for inmates to use with their children on visiting day. Flowers and decorative lampposts now line the prison’s driveway. But do these improvements really humanize the notorious prison complex? It is hard to know, since the group of reporters visiting the prison did not see a single one of the 400 inmates, who were all locked away in a cellblock that was not part of the media tour.
It is their violation of this imperative to conceal violence that makes the photographs of detainee abuse at Abu Ghraib so transgressive. The images of Lynndie England and her comrades humiliating and physically assaulting their charges make the shame of penal violence visible to a public unaccustomed to seeing uncontrolled “criminal justice” in practice. Foucault evokes the paradoxically shameful relationship between justice and punishment: “It is ugly to be punishable, but there is no glory in punishing…. Those who carry out the penalty tend to become an autonomous sector; justice is relieved of responsibility for it by a bureaucratic concealment of the penalty itself.” By making visible the most shameful forms of violence, the Abu Ghraib snapshots violate the impulse, shared equally by the American government and public, to conceal the gruesome penal realities of the “War on Terror.”
The weight of responsibility for this shame is the source of the collective effort to lay the blame for prisoner abuse on a few rotten apples and undertrained National Guardsmen. (The same logic applies to the cases of Guantánamo Bay torture, which are continually blamed on overzealous CIA agents and civilian intelligence contractors, not the high-ranking Justice Department officials who constructed the legal justifications for abuse and defended the need for “enhanced interrogation” in front of Congressional committees.) If the problem is a low-level one, can it not be explained as a failure in an otherwise functional system? Certainly, when high-ranking Pentagon and Bush Administration officials are implicated in the production of these conditions, when newly unearthed documents reveal carefully constructed, secret legal opinions justifying these atrocities the shame is shared, it is our collective shame. While the adage “war is hell” might be able to contain and excuse the horrors of the “War on Terror,” decisions made in the quiet corridors of Washington D.C. represent the truth of our judicial system. The very existence of Yoo and Addington’s shadow legal system resuscitates old questions about the role of intelligence operations in a democracy. How can officials be held accountable for decisions judged to be too sensitive for public disclosure? Do Americans collectively bear responsibility for atrocities conducted without their knowledge but perpetrated by the people they have chosen to lead?
The Abu Ghraib images’ sheer brutality recalls the horrors of colonialism, and it is precisely this imperial motivation that our politics continuously disavow. The pure pointlessness of the abuse and the gleeful expressions on the soldiers’ faces are relics of a political reality at odds with America’s stated mission to bring democracy and human rights to the repressive Middle East. The insidious rhetoric championing democratic values and signaling a pseudo-personal relationship between peoples only made the shame worse, for government malfeasance translates into violence done in our names.
Deploying medical expertise onto this situation reasserts some level of authority, organization, control, and professionalism that counteract the frightening sense of the “War on Terror” as an abusive free-for-all. But, the very characteristics of stability and respect that make medicine an attractive basis for defining legal categories extend to conceal the acts themselves. Just as pancuronium bromide conceals the corporeal violence of execution, cloaking torture in the discourse of medicine bestows human rights abuses with a veneer of respectability. For people seduced by the allure of information extracted by waterboarding an “al Qaeda operative,” knowledge of medical supervision might be sufficient to excuse this otherwise objectionable practice. One can imagine Limbaugh’s quip: “Liberals should stop complaining, these terrorists’ interrogations are conducted under the supervision of a doctor. It’s the inspiration for ObamaCare.”
This very attraction to enhanced interrogations as a way to gather information about terrorist threats demonstrates how a medical definition of torture misses the mark. Detainee abuse is intended neither to extract a confession (since it would be surely inadmissible in court) nor to deter “terrorists” from striking again (since it is conducted in secret). Though they are physically harmful, interrogators’ use of stress positions, solitary confinement, and humiliation is intended to cause a psychological breakdown in order to extract information about alleged terrorist activities. This identified need for information is the source of the supposedly compelling state interest “justifying” the use of rough interrogation tactics. Indeed, Gitanjali S. Gutierrez, Mohammad al-Qahtani’s civilian attorney, told Woodward about the debilitating psychological effects of his client’s time at Guantánamo. “There is no doubt [Qahtani] was tortured,” he said. “He has loss of concentration and memory loss, and he suffers from paranoia.” These problems are certainly the result of more than just his interrogation sessions; human rights advocates have documented the use of induced hypothermia, nonstop bombardment with loud rock music, and prolonged sleep deprivation in American detention centers. The psychological symptoms of long-term mistreatment are inaccessible to a rigorous medical examination, which is restricted to observing the physical condition of a patient. Even a stringent medical definition of torture might still allow interrogators to get away with using morally repugnant techniques to extract information from detainees.
Finally, law’s appropriation of medical discourse distorts our moral and legal understanding of abuse. Consider the prohibitions on torture in the Universal Declaration of Human Rights:
Article 5 – No one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment.
Article 6 – Everyone has the right to recognition everywhere as a person before the law.
These standards do not speak of torture in relation to some medically defined threshold of harm. Instead, they appeal to the ideals of human dignity and personhood that must undergird any robust democratic morality. By fracturing the public (and legal) perception of American interrogation policy with the alleged neutrality of medical categorization, this rationalizing approach to determining the limits of torture ensures that any sense of humanity is lost among definitions and biometric data. Of course, there is the danger that a future set of clever government attorneys be able to craft a new set of legal opinions justifying harsh interrogation tactics that do not cause long-term medical harm but violate international law and accepted moral standards. But the use of medicine to define the legal boundaries of torture could have effects far more insidious and difficult to detect. Might the involvement of medicine provide cover for an ongoing campaign of abusive counter-terrorism policies? Does turning to medical expertise amount to an evasion of responsibility by legal and political leaders? Might these technocratic legal standards themselves instigate radical revisions to our collective morality, weakening our abhorrence of torture?
Posted by Nick Werle at 12:20 AM | Permalink