From Nuremberg to Guantanamo Bay: Uses of Physicians in the War on Terror

Abstract

Seventy years after the Nuremberg Doctors’ Trial, health professionals and lawyers working together after 9/11 played a critical role in designing, justifying, and carrying out the US state-sponsored torture program in the CIA “Black Sites” and US military detention centers, including Abu Ghraib, Bagram, and Guantanamo Bay, Cuba.

We analyze the similarities between the Nazi doctors and health professionals in the War on Terror and address the question of how it happened that health professionals, including doctors, psychologists, physician assistants, and nurses, acted as agents of the state to utilize their medical and healing skills to cause harm and sanitize barbarous acts, similar to (though not on the scale of) how Nazi doctors were used by the Third Reich.

In August 2014, 12 years after the prison at Guantanamo Bay received its first prisoners in the War on Terror, President Barack Obama confessed, “We tortured some folks.”¹ Seven decades after the Nuremberg Doctors’ Trial,² which began in December 1946, doctors, working together with lawyers, played a critical role in the US government–sponsored torture program in the CIA “Black Sites” and US military detention centers, including Abu Ghraib, Bagram, and Guantanamo Bay, Cuba. We address the question of how and why health professionals, including doctors, psychologists, and physician assistants, utilized their medical and healing skills to cause harm and sanitize barbarous acts on behalf of the state. Doctors’ involvement in torture does not begin with the Nazi doctors and end with the War on Terror. Indeed, there is evidence that doctors have participated in torture throughout history.

We readily acknowledge that the acts of physicians at the Black Sites and Guantanamo Bay do not come close to the atrocities committed by the Nazi doctors. But this is far from an exculpatory observation. Behaviors less severe than the Nazi atrocities can still easily meet the definition of torture and grossly violate ethical and professional standards of practice. On the other hand, there is a clear parallel between the issues that arose in the Doctors’ Trial and the actions of health professionals at the CIA Black Sites and military detention centers; the commonality is that in both cases, health professionals discarded their ethical obligation to prevent harm to people and instead became agents of the state. Furthermore, both claimed their actions were legitimate because they were lawful under the regime they worked for and were necessary to protect the state from its enemies.

Although the Nazi doctors acted lawfully under German law, this did not save them from being found guilty at Nuremberg. Following orders and relying on laws adopted by one’s own country that permitted atrocities to be committed was no defense under the Nuremberg Principles.³ As the chief prosecutor, General Telford Taylor, successfully argued in his opening statement, “To kill, to maim, to torture is criminal under all modern systems of law.”² In other words, the Nazis’ perverse legal rules could not act as a shield to protect against the charges of war crimes and crimes against humanity.³

POST-9/11: WELL-INTENTIONED BUT MISGUIDED

After the September 11, 2001 attacks, which took nearly 3000 lives, prevention of further attacks was appropriately the nation’s highest priority. Decisions made by federal authorities ultimately led to the Rendition, Detention, and Interrogation program, which included the creation of a torture program that was designed and facilitated by psychologists, physicians, and other health care personnel. Some of the torture methods utilized were “authorized” by the Department of Justice, with the argument being that although they “might constitute cruel, inhuman, or degrading treatment or punishment” they “fail to rise to the level of torture.”⁴ Methods that met the definition of torture in Section 2340–2340A⁵ of the United States Code were not authorized but were still used. Medical professionals played not just a supervisory role, but also an active role in some cases. Various torture techniques, such as rectal rehydration or waterboarding, were performed by medical personnel.

Torture and cruel, inhuman, or degrading treatment is outlawed by Common Article III of the Geneva Conventions,⁶ Article 7 of the International Convention on Civil and Political Rights,⁷ and the Convention Against Torture⁸ (see the box on page 37).

Definition of Torture From the 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. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. Article I—Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.”

Source. UN General Assembly.⁸

Yet on February 7, 2002, President George W. Bush issued a memorandum arguing that “the war against terrorism ushers in a new paradigm”⁹—a paradigm in which the protections bestowed by the Geneva Conventions, including Common Article III, did not apply to detainees of the War on Terror. President Bush writes, “I accept the legal conclusion of the Department of Justice and determine that none of the provisions of Geneva apply to your conflict with al Qaeda in Afghanistan or elsewhere throughout the world, because, among other reasons, al Qaeda is not a High Contracting Party to Geneva.” The memo went on to define detainees as “unlawful combatants” that “do not qualify as prisoners of war under Article 4 of Geneva.” In addition, the United States simply narrowed and redefined “torture” to suit its security needs.¹⁰ Waterboarding, throwing people against walls, suspending people by chains from a ceiling, force-feeding, confinement in boxes, extreme sleep deprivation, and repeated humiliation all became lawful and acceptable behavior.¹¹

There is no exact accounting of how many people were detained, tortured, and released in the War on Terror without charges, although press reports suggest there may be close to 100 000 persons detained and released by the United States since 9/11.¹² Details are scarce or nonexistent on most of these individuals, although available information suggests that many were subjected to abusive treatment. There is more detailed information available on those detained in Guantanamo Bay and in the CIA Black Sites. A total of 780 men have been detained in Guantanamo Bay, most of them for years; in 2017, 41 remained there. Of those 780 detainees, 731 were released without charges, and many of them were subjected to torture or to cruel, inhuman, and degrading treatment. Nine have died while imprisoned in Guantanamo Bay.¹³ Of the 119 men reported to have been detained in CIA Black Sites, 39 are reported to have undergone “enhanced interrogation” and 26 to have been detained because of mistaken identity.¹⁴

In December 2014, the 600-page executive summary of the US Senate Select Committee on Intelligence Report on Torture (SSCI report) was released to the public.¹⁴ This redacted summary of the still-classified 6000-page report is the most comprehensive account to date and documents in chilling detail the critical role that the medical professionals, working with lawyers, served to enable the success of the torture program. However, evidence of medical professionals’ complicity in abuse of prisoners was evident for years before the explosive SSCI report.

The horrifying images of torture and cruel, inhuman, and degrading treatment of prisoners held at Abu Ghraib prison in 2004 shocked the world and are easily found on the Internet, but the official US cover story was that this abuse was the activity of just “a few bad apples,” not condoned by any US policy.¹⁵

In 2008, Physicians for Human Rights reported the first published evidence of the medical (psychological and physical) effects of torture on 11 men detained, tortured, and released from US custody without charges.¹⁶ All of the men evaluated in this report were suffering from severe psychological and physical sequelae, and their lives remained fractured, even years after release. During this investigation, the systematic abuse—including the participation of physicians—at multiple sites over different time frames was discovered, debunking the “few bad apples” defense. The chilling effect of doctors’ participation was described by the survivors—a fleeting hope that a medic would help ease the pain and suffering and put a stop to the torture was extinguished when the medic said to the torturers, “You can continue” (S. S. Crosby, oral communication with detainees, 2008).

The torture program has had disturbing and consistent sexual overtones, starting with the naked men piled on top of each other in Abu Ghraib. Physicians for Human Rights reported that “Two former detainees were sodomized with a broomstick or a rifle at Abu Ghraib.” Detainees at the CIA Black Sites were routinely kept naked.¹⁴ Recordings of screaming women were played for detainees while they were told that their female relatives were being raped in the adjacent room.¹⁶ Several prisoners were sodomized under the guise of “rectal rehydration.”¹⁴ Aggressive body cavity searches have been routine. One detainee was doused with cold water while a stiff-bristled brush was used to scrub his genitals and mouth.¹⁷

In 2009, the Obama administration released Office of Legal Counsel memoranda—the so-called “Torture Memos”—that further elucidated the critical role of medical personnel in the CIA torture program.¹⁸ These memos described how the medical professionals approved each of the torture techniques utilized in the CIA Black Sites. Department of Justice lawyers justified the methods on the basis of assurances from medical personnel that the proposed “enhanced interrogation” techniques would not cause permanent harm, organ failure, or death. Therefore, the lawyers argued, the methods would not constitute “torture” as defined by the Justice Department.^4,5 These opinions were not based on any clinical or scientific data and ultimately turned out to be false. Although heavily redacted, these memos provided documentation that the physicians deemed detainees fit for interrogation and also for advancement to the “next level” of interrogation. Medical personnel monitored and participated in the interrogations; their participation provided a false veil of legitimacy to the program.

In 2009, President Obama rescinded the torture memos and closed the Black Sites. He ordered the CIA to immediately cease using any “enhanced interrogation techniques” and begin immediate compliance with Common Article 3 of the Geneva Conventions, which prohibits “humiliating and degrading” treatment of prisoners.¹⁹ Although the Black Sites are ostensibly closed, military detention centers remain operational, with little transparency. Medical personnel continue to be involved in nonmedical guard force activities, such as force-feeding hunger strikers and pressuring them to “break their strikes.” It is not in dispute that the force-feeding of mentally competent hunger strikers violates basic medical ethics principles, as articulated by the World Medical Association Declaration of Malta on Hunger Strikers.²⁰

Physicians can no more force-feed a mentally competent hunger striker than they can conduct research on mentally competent humans without informed consent or force a patient to undergo renal dialysis.²¹ Force-feeding a competent person is not the practice of medicine, but is aggravated assault.²² Using a physician or nurse to assault prisoners does not change the nature of the act or provide legitimacy to the practice, just as using physicians to monitor torture does not make torture a medical procedure.

An example of physician participation in cruel, inhuman, and degrading treatment after closure of the Black Sites and shuttering of the torture program is the case of Abu Wa’el (Jihad) Dhiab, a former prisoner at the US Naval Base at Guantanamo Bay, Cuba, who was the first to challenge his force-feeding in federal court.²³ Although he did not win his case, the open hearing provided unprecedented transparency into the details of medical care and practices of physicians caring for hunger strikers. Dhiab repeatedly told us that “the doctors are involved in punishment and their purpose is to torture” (S. S. Crosby, oral communication, 2014). Evaluation of Dhiab and review of his medical records reveal that medical professionals were indeed used as agents of the guard force to coerce him to stop his hunger strike. Dhiab suffered from a paralysis of his right leg of unknown etiology, and doctors refused him access to a wheelchair, forcing him to crawl on the floor and to be forcibly extracted from his cell for feedings (instead of being transported voluntarily in a wheelchair). The presiding judge, Gladys Kessler, described in her opinion that Dhiab’s treatment was “very hard to understand” (see the box on this page).²⁴

Excerpt From Judge Kessler’s Opinion

“The Court feels constrained to make certain comments about the Government’s treatment of Mr. Dhiab. It is very hard to understand why the Government refused to give Mr. Dhiab access to the wheelchair and/or crutches that he needed in order to walk to the room for enteral feedings. Had that simple step been taken, numerous painful and humiliating forced cell extractions could have been avoided. … By the same token, the Government refused Mr. Dhiab’s request to provide him with an additional mattress. What could be more reasonable than providing an additional mattress to a man with back pain so severe that he was given morphine to alleviate it?

“Mr. Dhiab is clearly a very sick, depressed, and desperate man. It is hard for those of us in the Continental United States to fully understand his situation and the atmosphere at Guantanamo.”

Source. Kessler.²⁴

To date, the government has protected the names of the Department of Defense, CIA, and contracted medical personnel involved in detention and interrogation activities. We believe that most of the medical personnel who were caught up in torture and cruel, inhuman, and degrading treatment of prisoners in the War on Terror are “normal” people, not sadistic torturers, just as General Telford Taylor observed of the defendants in the Doctors’ Trial.² So how is it that physician healers can be convinced to use their skills to cause harm?

JUSTIFYING THE MEANS

In the Doctors’ Trial, the defendants did not deny the allegations or show remorse. They justified their actions on several grounds. One was that their actions were done legally with authorization, and they had no expertise concerning moral matters. A poignant justification—and one relevant 70 years later—is that defendants acted for the defense and security of their country. All actions were done to protect the Reich against its enemies. The defendants maintained that war justifies exceptions to ordinary morality.²⁵

Justification for committing atrocities is strikingly similar in the present-day War on Terror. James Elmer Mitchell is one of the contract CIA psychologists identified publicly as a crafter of the CIA torture program, along with colleague John Bruce Jessen.²⁶ Mitchell and Jessen are not physicians, but their activities reflect health care professionals’ loss of ethical guidance. In addition to designing the program, Mitchell describes his and Jessen’s direct participation in torturing “high value” detainees. In his recently published book Enhanced Interrogation: Inside the Minds and Motives of the Islamic Terrorists Trying to Destroy America, Mitchell justifies his participation in torture by arguing that he was protecting national defense and the security of the United States, and even writes that he would “do it again” under similar circumstances.¹⁷ He states, “As I considered my choices, I believed it would have been immoral and unethical for me to have ignored my obligation to use what I know to defend our citizens and our way of life against enemies whose stated goal is to destroy us.” Similarly, the defendants in the Doctors’ Trial stated that their actions were necessary for national defense, saying, “Sometimes it is necessary to tolerate a lesser evil, the killing of some, to achieve a greater good, the saving of many.”²⁵ Whether torture “works”—like whether slavery “works”—is simply the wrong question. Both are internationally recognized as war crimes and crimes against humanity that have no justification.^6–8,21

Mitchell and Jessen offer a defense similar to that used in the Doctors’ Trial—that their actions and the torture were “authorized” and that they were following orders. In a deposition, Jessen stated, “We were—we were soldiers doing what we were instructed to do. We knew it was lawful, we knew it was legal, we knew it had been vetted and approved.”²⁷ Mitchell, in his book, reports an incident in which he believed torturers crossed the line by using “unauthorized” torture methods. Mitchell explains that he waited for the monitoring physician to intervene, and was surprised when they didn’t.¹⁷ Mitchell reports he expressed concern about the “stress positions” he observed as not being authorized, yet he himself “waterboarded” detainees (in effect, simulated drowning), a torture technique arguably much more damaging that carries an imminent risk of death (the box on this page).¹⁴

Description of a Waterboarding Session From the Senate Intelligence Committee Report on Torture

“At times [AZ] was described as “hysterical” and “distressed to the level that he was unable to effectively communicate.” Waterboarding sessions “resulted in immediate fluid intake and involuntary leg, chest and arm spasms” and “hysterical pleas.” In at least one waterboarding session, “[AZ] became completely unresponsive, with bubbles rising through his open, full mouth.”

Source. SSCI Report on Torture.^14(p54)

This illuminates an unnerving distinction in a torturer’s mind—namely, that what may be done is determined solely by state authorization. The fact that an act may be wrong, personally or professionally unethical, or morally reprehensible plays no role in deciding whether to commit the act. This gives critical context to Mitchell saying that “Our actions were necessary, effective, legal, authorized, and helped to save lives.” This again echoes the defense posited at the Doctors’ Trial—namely, that “The German physicians involved in human experimentation were only following German law. . . . The state determined the necessity for human experimentation. The physicians were just following orders.”²⁵

In an effort to further rationalize his role, Mitchell has attempted to position himself as a protector of the victims he is torturing. In a recent deposition, Mitchell describes his and Jessen’s worries and concerns about the frequency and intensity of Abu Zubaydah’s waterboarding. Mitchell then describes how he intervened to address these concerns—by administering 8-second pours, less than the 20 to 40 seconds authorized by the state, giving him “more opportunities to breathe.”²⁷ The defendants in the Doctors’ Trial also used this justification as a defense: “[P]risoner involvement in human experimentation actually served the prisoners’ best interest by keeping them alive and preventing their execution.”²⁵

At the same time, Mitchell comes to express doubts about his participation in torture. In the deposition, Mitchell also claims, “Bruce [Jessen] and I had said, We’re not going to continue doing this, and what they said, Well, you guys have lost your spine . . . you guys are pussies.” So they succumbed to the pressure and continued, rationalizing that if they left, “the torture would be even worse.”²⁷ Again, the German doctors offered the defense that “if the physicians did not carry out the medical experiments themselves, less skilled non-medical technicians would perform surgery and medical tests, producing even greater harm.”²⁵

NORMAL PHYSICIANS PARTICIPATING IN WAR CRIMES

How can “normal” health care personnel participate in horrific acts with no remorse and with the ability to self-justify their behavior? Robert Jay Lifton provides insight into this question.²⁸ Lifton describes atrocity-producing situations as environments so structured, militarily and psychologically, that an average person entering it could be capable of committing atrocities.²⁹ He believes individuals undergo a type of dissociation he calls “doubling”—the formation of a second self. Nazi doctors could continue to be ordinary husbands and fathers when on leave from their murderous work in Auschwitz. Doubling allows the individual psyche to adapt to an atrocity-producing environment by means of a subself that behaves as if autonomous and thereby joins in activities that would otherwise seem repugnant. Lifton writes that in environments in which sanctioned brutality becomes the norm, sadistic impulses, dormant in all of us, are likely to be expressed. Health professionals are human, and not immune to the pressures created by these environments.

Torture techniques in Nazi Germany and in the United States were translated into medical euphemisms, thus sanitizing and legitimizing harmful acts. For example, simulated drowning is called “waterboarding,” exposure to cold temperatures causing hypothermia is “temperature manipulation,” and sodomy is “rectal rehydration.” This echoes the Nazi physicians’ brutal crimes committed under the guise of scientific research, such as “high-altitude experiments.” Medicalization brings torture methods within the scope of the practice of physicians, allowing them to rationalize their behavior, lessen the emotional impact of their role, and further insulate themselves from their “second self.” The Black Sites and military detention centers such as Guantanamo Bay, with their isolation and distorted ideologies, are ripe to create such an environment.

GLEANING LESSONS FROM HISTORY

These parallels teach us a lesson: that health care professionals are vulnerable to using their medical skills to cause harm, given the right combination of circumstances such as occurred in the Black Sites and detention centers in the War on Terror. Another factor that potentially enabled health care professionals to be willing participants in torture was the prevailing political and social climate after 9/11. Medical professionals are not immune to such climates, which may lead to the crossing of moral lines, or at least make it harder to resist doing so. It is imperative that we reflect on how to address these narratives as a society, the role of health professions in developing counternarratives, and the promotion of a renewed culture of human rights.

Torture is never justified under any circumstance; public health professionals and scholars must play an influential role in reframing and shifting the public sense of norms to facilitate the moral and legal understanding of that fundamental truth. This could be done by educating the public on the individual and societal damage caused by torture, and how the complicity of medical professionals legitimizes a harmful and illegal practice. The long-term effects of torture are widely reported in the medical literature, and the CIA health professionals’ stated opinion that the torture program would cause no lasting damage was either willful ignorance or a lie. In fact, the profound long-lasting damage that occurred was a completely predictable result of the torture program. This was a missed opportunity for health professionals to educate Congress and the public on the documented long-known impact of torture on individuals and society.^30,31

Perpetrators are also damaged. In None of Us Were Like This Before: American Soldiers and Torture, Joshua E. S. Phillips describes the devastating legacy of torture on US soldiers who were unable to deal with the psychological aftermath of their own participation in detainee abuse after they returned home.³² Public health professionals and scholars can also play a role in informing the public by calling out professional misdeeds and requiring accountability.

Doctors who torture have permanently crossed an ethical and moral boundary, putting them outside of what is acceptable in the health profession, and they should be excluded from the profession.³³ The credibility of all doctors to use their skills for healing is damaged once those same skills are used to harm.

CONCLUSIONS

The parallels to the motivations of the health care professionals revealed during the Nuremberg Doctors’ Trial are evident, as are some of the historical conditions, such as “dehumanization” of an identified group of people. This created the perfect storm post-9/11. Health professionals were compelled to follow orders to perform a “legal” or “authorized” task that would help secure the country against an enemy that had been “dehumanized,” in an isolated environment where sanctioned brutality is the norm. Analysis and mitigation of these conditions that create “atrocity-producing environments” is necessary for prevention. The problem of health care personnel’s participation in torture is complex, and the solution is not simple. A major culture shift is required, one that changes the focus of health care professionals’ behavior from worrying about what is legal or authorized toward a culture focused on ethics, morality, compassion, and human rights.³⁴ This is applicable to the medical profession at large, not just to military detention centers. A framework of human rights must be embraced by the medical profession, one in which medical professionals identify as defenders of health and healers of suffering and move away from their reliance on lawyers and superiors (military or civilian) to define allowable behavior.

Although US medical societies, including the American Medical Association, have denounced physicians’ participation in torture, physician groups have not tried to punish doctors who do. To date, no US professional organizations or licensing boards have taken action against health care professionals, with one state board saying that it could not take action because it did not have jurisdiction.³⁵ The state wields tremendous power over physicians and how they practice, and the profession cannot tolerate or endure health professionals acting as agents of the state as torturers. Actions from licensing boards could be a powerful deterrent.

In a ground-breaking milestone for health care professional accountability in the torture program, on August 17, 2017, the American Civil Liberties Union (ACLU) settled a civil lawsuit on behalf of a group of plaintiffs for damages incurred from torture (1 plaintiff is the family of a man who froze to death in a CIA secret prison) against the 2 psychologists, James Mitchell and John Bruce Jessen. This settlement could help recognize the accountability of health professionals who participate in torture and provide reparations to victims.

It would have been difficult, if not impossible, for the United States to carry out the torture program without the collusion of health professionals and lawyers, who looked to the approval of the Justice Department to sanction torture. Of course, no one country can change international law against torture, and our doctors and lawyers should have known this. On the 70th anniversary of the Doctors’ Trial, basic provisions of international human rights law, including the prohibition on torture, are well worth reemphasizing.