By George J. Annas, J.D., M.P.H., and Sondra S. Crosby, M.D.
First published: June 11, 2015
In December 2014, the U.S. Senate Intelligence Committee’s report on torture was released to the public. The 600-page report (a redacted summary of the still-classified 6000-page report) documents in disturbing detail the use by the Central Intelligence Agency (CIA) of physicians, lawyers, and psychologists in its post-9/11 torture program at more than a dozen “black sites,” or secret prisons, around the world.1 The United Nations High Commissioner for Human Rights, Zeid Ra’ad al-Hussein, has called the report “courageous and commendable,” while condemning the torture program it details and noting that “torture cannot be amnestied” and should not be permitted to recur.2 To begin to understand the torture, we believe it’s necessary to understand how physicians and lawyers collaborated to overcome their professional inhibitions.
Medical professionals, primarily private contractors, filled four basic roles at the black sites: clearing terrorist suspects as “medically fit” for torture; monitoring torture to prevent death and treat injuries; developing novel torture methods; and actually torturing prisoners. All these actions were taken only after CIA and U.S. Department of Justice attorneys assured the medical professionals that they had immunity from prosecution and would not be held legally responsible for violating U.S. and international law against torture as long as they used the techniques approved in legal memos (since withdrawn) written to justify their actions.1 Lawyers agreed to provide immunity assurances that specific torture techniques were legal “enhanced interrogation” methods only if the physicians assured them that they would be present to prevent permanent harm to prisoners. The CIA opened more than a dozen black sites around the world after 9/11, in which at least 117 prisoners were held; 39 of these prisoners were subjected to one or more torture techniques.1
From the Senate report and the documents on which it builds, the physicians involved appear initially to have had at best mixed feelings about direct involvement in torture, but they evolved into active participants. In August 2002, CIA e-mail messages included lines such as “[I] want to caution [the medical officer] that this is almost certainly not a place he’s ever been before in his medical career” and the comment that viewing videotapes of the waterboarding of Abu Zubaydah (the first terrorist turned over to the CIA) “has produced strong feelings of futility (and [il]legality).”1 Seven months later, in March 2003, one on-site physician questioned the plan to waterboard the alleged 9/11 mastermind, Khalid Sheikh Mohammed (referred to as KSM), for the fourth time in 24 hours, because the draft guidelines of the CIA’s Office of Medical Services (OMS) stated that three waterboarding sessions in 24 hours was the acceptable maximum. The Counterterrorism Center’s attorney assured the site personnel that the medical officer was incorrect in thinking that this limit had been approved. Later the same day, the medical officer wrote to the OMS, saying, “things are slowly evolving from OMS being viewed as the institutional conscience and the limiting factor to the ones who are dedicated to maximizing the benefit in a safe manner and keeping everyone’s butt out of trouble.”1
The waterboarding of KSM, like almost all the torture conducted, was directly overseen by two contract psychologists, former supervisors of the U.S. Air Force’s SERE (survival, evasion, resist, escape) course, who were hired to develop an interrogation program by “reverse engineering” the SERE program, to get the suspected terrorists to talk.1 Instead, they relied almost exclusively on what they called “learned helplessness,” a technique based on research in dogs, which was used to try to break down a prisoner’s resistance to the point where he feels helpless enough to confess to whatever his torturers want. Before KSM’s waterboarding, the two psychologists (their CIA cover names were Swigert and Dunbar; their real names are James Mitchell and Bruce Jessen) had used nudity, standing sleep deprivation (for up to 180 hours), the attention grab and insult slap, the facial grab, the abdominal slap, the kneeling stress position, and walling (pushing into a wall “quickly and firmly”).1 The Department of Justice had approved these methods as long as they were done with a physician present.
The use of unapproved torture methods illustrates, we think, the impossibility of confining torture to legally defined methods. For example, CIA agents threatened KSM’s children, a universally condemned method that was nonetheless later declared “legal” by the Counterterrorism Center, so long as the threats were “conditional,” whatever that means.1 Another unapproved method called “water dousing” (a variation on waterboarding) “was developed with guidance from CIA [Counterterrorism Center] attorneys and the CIA’s Office of Medical Services” working together.1 Physicians and lawyers consistently gave themselves permission to do whatever they agreed among themselves was important to do (to “save lives”). Another unapproved technique, described as “rectal feeding,” consisted of delivering food rectally to demonstrate dominance over the prisoner (though no nutrition can be delivered through the rectal mucosa). This torture technique was used, for example, on Majid Khan, who was on a hunger strike. CIA medical officers had “discussed rectal rehydration as a means of behavior control.” Three weeks into a hunger strike, nasogastric feeding was replaced with a “more aggressive treatment regimen.” “Majid Khan was subjected to involuntary rectal feeding and rectal hydration, which included two bottles of Ensure. Later that same day, Majid Khan’s `lunch tray,’ consisting of hummus, pasta with sauce, nuts, and raisins, was `pureed’ and rectally infused. Additional sessions of rectal feeding and hydration followed.”1
There is, of course, no medical indication for rectal feeding, and the fact that it was done by or under the supervision of a physician cannot convert this torture technique into a medical procedure. Nonetheless, a medical justification was the cover story to legitimize its use when it became public. For example, responding to the Senate report, Vice President Dick Cheney said rectal feeding was not approved but that he believed “it was done for medical reasons.” It seems more accurate to describe rectal feeding as a technique of sexual assault. Seen in the context of the constant state of nudity of most black-site prisoners, it seems reasonable to conclude that the goal of rectal feeding is dominance and punishment — that it is about vengeance, not medicine. In U.S. prisons, medicine (and public health) have also been used to justify demonstrating dominance by forced nudity of prisoners, in the form of routine mandatory strip searches.3
The Senate committee’s Republican minority (now the majority) published a rebuttal to the report, arguing that it was incomplete because it relied exclusively on documents and did not involve interviewing participants. The minority also disagreed that no useful information was obtained by torture, correctly noting that there is no way to recreate a nontorture scenario to see what information could have been discovered without torture. On the other hand, whether torture “works” — like whether slavery “works” — is simply the wrong question.4 Both are internationally recognized as crimes against humanity that have no justification.
In 2004, Robert Lifton wrote in the Journal that it is possible to get physicians to become torturers by putting them in “atrocity-producing situations.”5 One such situation is certainly a CIA black site, a site with no official existence that is created for the primary purpose of extracting information from suspected terrorists. The Senate report supports Lifton’s conclusion and suggests that one way to try to prevent a repetition of the torture program is, as President Barack Obama has said, to eliminate black sites altogether. The report adds to our knowledge of how lawyers and physicians can collaborate with each other to rationalize torture — a dynamic that has also played out in military prisons, including Abu Ghraib and Guantanamo, and even in some U.S. prisons, especially supermax prisons and others that rely heavily on solitary confinement.
Beyond the elimination of black sites, attorneys will have to stand with physicians who want to maintain their ethics (and follow, among other legal standards, the Geneva Conventions), support health professionals in their refusals to torture, and refuse to give CIA agents and contractors prospective legal immunity for violating human rights laws. And in all contexts, physicians should act only in ways consistent with good and accepted medical practice, with the consent of their patients.