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Torture, but do no harm

After the September 11 terrorist attacks, the Bush administration redefined acts that were previously recognised as torture and thus illegal as ‘enhanced interrogation techniques’ (EITs). From then on subjecting detainees to, for example, forced nudity, sleep deprivation, waterboarding and exposure to extreme temperatures could be legal. The line between torture and EITs is a fine one: the classification depends on the level of pain experienced.  

A report issued by the advocacy group ‘Physicians for Human Rights’ has revealed that to ensure that the aggressive interrogation practices conducted by the CIA qualified as EITs they were monitored by doctors and other medical personnel who guaranteed that the legal threshold for  ‘severe physical and mental pain’ was not crossed (NY Times, 6 June 2010).

However, the doctors did not only monitor the ‘enhanced interrogations’ they also collected detailed medical data that were subsequently used to design and perfect some of the techniques used. For example, doctors recommended the replacement of water in the waterboarding procedure with saline solution to reduce the detainees’ risk of contracting pneumonia. Doctors also collected information about the detainees’ susceptibility to severe pain to investigate whether it was justifiable to combine certain ‘enhanced interrogation techniques’, and about the effects of detainees’ sleep deprivation to establish a sleep deprivation policy.

This is human subject research. In the U.S., using human subjects in any research requires approval from an institutional review board (IRB), informed consent of subjects and minimal possibility of harm.  None of these conditions were met. The research  was in violation of the American Common Rule, the Nuremberg Code and other national and international  ethical guidelines that protect human research subjects.

Doctors and health workers thus not only provided a legal cover for torture, they also conducted illegal research and experiments on the detainees.  They were wrong twice. As accomplices in torture, and as primary wrongdoers in the experiments. 

But could the doctors’ acts not be justified? After all, many people would agree that complicity is not necessarily wrong in and of itself. It is sometimes justified, for example when by being complicit one avoids a greater wrong. Some would argue that these experiments may have prevented a greater wrong (i.e., terrorist attacks). 

However, it is questionable whether the doctors could appeal to the prevention of terrorist acts in order to justify their conduct. Compare with the case of doctors in Saudi Arabia who anaesthetise thieves when their hands are cut off as a punishment for their crime. The doctors are clearly complicit in a wrong (by participating in the process of cutting off hands, they legitimize the practice and indirectly encourage it). But we might think that what doctors do in the ‘cutting off hands case’ is more acceptable than what doctors did in the torture case. Why is this? Not because the wrong done by others is less bad. Cutting off hands amounts to pure barbarism, whereas at least some rational justification could be presented to defend torture under certain circumstances (it can protect the country against terrorism). What makes what doctors do in the ‘cutting off hands case’ perhaps more acceptable is that that the benefits created by the doctors seem much more consistent with the special role or duties of doctors: duties of care and compassion, of reducing pain and suffering.

Protecting the country falls outside those duties. Doctors are supposed to protect the interests of their patients, not those of the country. Moreover, torturing couldn’t be more against the interest of the ‘patient’. Physician-assisted torturing clearly does not encompass the special duties of doctors. Reducing pain and suffering, and showing compassion just seems inconsistent with the practice of torturing. Moreover, what is consistent with these duties is that doctors, when witnessing cruel, inhuman, and degrading treatment of people, document, report and oppose such practices (as, for example, we would expect them to do when they suspect child abuse). The doctors in this case did not do any of these things. 

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10 Comment on this post

  1. I’m not sure the cutting-off-hands case is as disanalogous as you indicate. Consider: the doctor’s purported role in both cutting-off-hands and torture is to prevent too much harm/pain to a ‘patient’. Without medical supervision, torture might indeed be much more risky and painful than it would be if a doctor is present. Additionally, the basic justification for the actions in both cases involve protecting the country – in one case by getting info from violence of aggressors, in the other from deterring criminals (and, from the torturer’s point of view, meting out justice). Given that cutting off hands is a more grievous harm than waterboarding, if doctors’ medical assistance with the latter is wrong, surely their assistance with the former must be wrong as well.

    Now, there is a way in which the torture case could be quite different: if the doctor, in addition to monitoring harm/pain, also actively assisted in the act of torture itself – for instance, by developing and/or injecting a serum which would cause pain. I’m not aware of reports which accuse US doctors of such direct involvement (though note doctors’ assistance with capital punishment is more clearly direct).

    However, arguably the new revelations about (clearly unethical!) research on torturees reveal that doctors are more actively assisting in torture itself (rather than acting in the interests of the torturee) than previously thought. For instance, a doctor can be used to ‘test the limits’ of a new technique, to see how painful they can make a procedure before it hits the legal ceiling. Just as doctors are rightly complicit in the development of new medical treatments when they help with clinical research, doctors may be wrongfully complicit in the development of new torture techniques by assisting with data collection/analysis.

  2. “Doctors are supposed to protect the interests of their patients, not those of the country.”

    Actually, this isn’t strictly true. Physicians have significant public health responsibilities. Preserving patient confidentiality is a pretty stringent requirement for physicians but for some communicable diseases, its routinely breached via required reporting to public health authorities. This isn’t controversial. And what about the role of physicians during wartime? Treating wounded combatants with the goal of returning them to combat-fit status is definitely one of the goals of military physicians. How is it in the interest of these patients to be exposed to these demonstrably risky situations? This isn’t controversial either.

    None of this is meant to exculpate physicians who supervise torture, which is definitely immoral. The argument against this practice, however, will have to be something better than a narrow definition of physician-patient obligations.

  3. I don’t condone the doctors’ behavior, either in assisting with the “interrogation” or in conducting research on captive subjects.

    Nonetheless, I think there is a more charitable interpretation of their actions than you allow. Perhaps the doctors believed that (a) EIT did not constitute torture as long as interrogators did not cross the relevant pain thresholds, (b) EIT would be used with or without their participation, (c) the interrogators were much less likely to cross those thresholds if the doctors oversaw the interrogations. In that case, it’s at least plausible that the doctors had a (subjective) duty to participate.

    If you reject the argument I’m putting in the doctors’ mouths, I’d guess it’s because you reject (a). In that case, the focus of your argument shouldn’t be about the doctor-patient relationship, justifiability of torture in this case, or whatever. It should be about whether the particular techniques used at Guantanamo constituted torture.

    None of this touches the research misconduct point, of course.

  4. Dominic Wilkinson

    Hi Katrien,

    I am inclined to agree with David.
    This is what I wrote in a post a year ago

    If the concern with health professionals being involved in torture is that this breaches the rules that are supposed to govern their behaviour it might make all the difference what the professional qualifications of the torture assistants were. But would it really make it better if the assistants were soldiers or CIA officers who had received some medical training? What if they were scientists or vets?…

    Sometimes we hold doctors to higher standards than the rest of the community. We may, for example, feel particularly aggrieved if a doctor gossips about our health to another patient, but not be concerned (or as concerned) if this is done by our hairdresser. But the moral requirement not to torture or to assist in torture is not of this nature. It is something that should have equal force on a doctor or a CIA officer, a hairdresser or a vet.

    None of this is to condone the practices revealed in the ICRC report. But the reason that it is wrong for doctors or other health professionals to assist in torture is because it is torture – not because they are doctors.

  5. Two questions that occur to me in this context are (i) whether the doctors playing the role of doctor when they were monitoring the interrogation, and (ii) to what extent the accepted obligations of doctors (duty of care etc) extend to circumstances where they are playing other roles. The answer to (ii) must be at most, “only to a limited extent”, for example a doctor would presumably not be expected to behave differently to his or her children than any other parent, except when they were sick. My point on (i) is that their role was at least partly to monitor the procedure rather than treat the subjects. Could one not therefore argue that, while they were clearly using their medical expertise, they were not in the role of “doctor” at the time and so should not be judged as if they were?

  6. I don’t understand the problem as one of determining whether the physician is directly involved in the interrogation. The problem is one of determining whether the physician is there to preserve the life of the interrogee or to determine when the line is crossed between permissible and impermissible treatment. The former is clearly assisting in torture. The latter isn’t. It might be better for physicians to refuse participation at all, since the latter can morph into the former as interrogation crosses the line. Non-physicians can monitor pain, and strict rules can prevent the use of torture methods.

  7. This is indeed the kind of distinction I had in mind, but I don’t necessarily agree that preserving the life of the interrogee is “clearly assisting in torture”. On the contrary, it would in some cases involve preventing torture. In my view the complicity comes from the extent to which both roles – preserving the life (or indeed long-term health) of the interrogee or playing a strict monitoring role – serve to add some kind of legitimacy to the procedure. I don’t see why this applies any more to the former than to the latter.

  8. Thanks for your comments.
    I agree with Dominic and David that the reason that it is wrong for doctors or health professionals to assist in torture is that it is torture – not that they are doctors.
    But could it not be that the fact that they are doctors makes their complicity even more wrong (more wrong than if it would have been a soldier monitoring the pain levels and designing the new torture techniques)?
    Through their participation in the interrogations, the doctors lent legitimacy to the interrogations and helped legalize torture (EITs cannot be used without doctors’ participation as it would then be torture and illegal). Legitimising the torture practices also made it much more likely that more torturing will be done in the future. So doctors knowingly contributed to an increase in practices designed to harm people.
    Some may argue that, even though the doctors are encouraging more torture in the future, we generally expect doctors to give priority to their own patients over other people (including people that will be tortured in the future). The Doctors were perhaps genuinely motivated by protecting the interests of the detainees (making sure the practices were less painful than they otherwise would have been). So their complicity in torture could be justified by their role as doctors to reduce harm of their patients (the detainees).
    However, this seems implausible. If this was the case, then we would expect these doctors to do everything they can to distance themselves from torture practices by for example, publishing articles in which they argue against torture and in which they justify their participation in it. But to my knowledge that is not what these doctors have done. So it seems more plausible that they participated, not because they wanted to act in the interest of the detainees, but because they wanted to enable torture.
    It seems that they used their role as doctor (to reduce the patients’ suffering) to legitimize torture. Their role to reduce suffering was used to legitimize their complicity in torture (But of course it doesn’t). This just seems to undermine doctors’ credibility. Doctors – the ones that are meant to reduce suffering and pain – are encouraging practices that involve intentionally inflicting pain on people. Will we ever believe again that doctors act in our best interest and will do everything they can to reduce our suffering? I think the cost of a serious loss in credibility of doctors (and medical practice) is what makes doctors’ complicity in torture extra wrong.

  9. @Owen:

    I agree that the torture case may be more analogous to the cutting-off hands case than I thought. Nevertheless, I think there may be one relevant difference: the doctors’ role in the torture case was to keep the mental and physical pain under a certain threshold, not because that would be in the interest of the detainee (though it is in his direct interest), but to ensure that the interrogations were legal and the interrogators would not be prosecuted. The doctors clearly not only lent legitimacy to the inhuman interrogation practices but also enabled and helped legalise them. I am not convinced whether the doctors’ role in the cutting-off-hands case is entirely the same. They probably lend legitimacy to the practice, but it is legal and being done regardless of their participation in it. So I think the association with the wrongdoing is somewhat different.

    Regarding your question about the more active role of doctors: The doctors assisted in justifying torture and in designing and perfecting interrogation techniques (e.g. their research resulted in a new technique for waterboarding called “waterboarding 2”). I don’t think that those who actually commit the crime (by for example injecting a painful serum) always act more wrongly than those who command the crime to be performed or provide the means for it. I don’t think the pilot who dropped the atom bomb acted more wrongly than those who developed it.I don’t think it would necessarily have been more wrong if the doctors had participated in a more physical sense in the interrogations.

  10. It seems to me that the doctors are guilty of something akin to misusing a powerful or dangerous instrument or machine. That is, people in the US are criminally negligent for irresponsibly using their car to injure or kill others. Similarly, people who have guns must use them in a safe and responsible way. Even chance discharge of a gun can be liable for charges of involuntary manslaughter. I believe that there are similar instances in the use of information; that is, where some information is used to physically harm others. Can we combine these and build a series of examples showing a doctor’s culpability in the sense that they have misused their knowledge and expertise to harm others? This assumes, however, that you can prove that the person undergoing torment is being tortured or simply extreme emotional and physical duress allowable under the conventions of warfare.

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