Breach in the torture regime: Nuremburg Code violations

Torture is forever. Like severe trauma in an individual, its effects may burrow deep within the psyche only to resurface a month, a year, or three decades later, especially upon the occurrence of a newly traumatizing event.

A society that tortures inflicts this wound on itself along with its victims, not in some vague moral sense but concretely. As our nation, with the full knowledge and general complicity of its citizens, embarked on a torture regime after 9/11, the consequences of that Mephistophelean pact eventually and inevitably will ooze forth as turbid slime.

A report released this week by Physicians for Human Rights on illegal experimentation on human subjects is an important crack in the wall of impunity. PHR outlines how Bush’s lawyers, John Yoo and Jay Bybee (now a sitting judge, god help us), constructed memos to protect our national torturers from legal liability in case they were ever prosecuted for their acts. But as always, something had to go wrong.

The 30-page PHR report, entitled ‘Experiments in Torture: Evidence of Human Subject Research and Experimentation in the “Enhanced” Interrogation Program’, will make some as yet unidentified psychologists and medical doctors mighty nervous. It painstakingly points out, using documents in the public domain, that the Guantánamo/Abu Ghraib/Bagram torture regime relied on human experimentation to compile the data that would provide a legal shield for the torturers.

Human experimentation is defined as research on human beings or their identifiable private information whose aim is to ‘develop or contribute to generalizable knowledge’. It has been strictly regulated under our legal system even since the world collectively threw up upon learning of the Nazi atrocities, including concentration-camp experiments on prisoners.

First under the Nuremberg Code and later refined after the Belmont Report through the statute known as the ‘Common Rule’, the United States adheres to internationally-recognized norms and has developed detailed regulations that govern all federally-funded research with human beings.

The 1979 Belmont Report emerged after revelations about the notorious Tuskegee Syphilis Study, in which rural black males in Alabama were allowed to sicken and die of syphilis without treatment so that white doctors could study the progression of the disease. That made the scientific community sit up and take notice of itself in the post-civil rights era.

Sixteen federal agencies, including the CIA, are governed by the Common Rule. There is even an Office for Human Research Protections housed in the Department of Health and Human Resources.

The Common Rule is very strict about research involving human beings: you cannot perform it if it causes harm to the subject even if the overall goal is to promote the ‘greater good’. There are no exceptions for foreigners or detainees. On the contrary, prisoners are considered an especially ‘vulnerable population’ along with children, the institutionalized and pregnant women, for whom extra protections are required.

The Bush gang apparently forgot all about that inconvenient detail. The PHR report makes fascinating reading because it illustrates how, in their eagerness to provide legal cover for the torturers, the Bush operatives ignored the implications of gathering systematic evidence on waterboarding and other torture techniques and of employing health professionals to do it. These doctors and psychologists monitored victims to check oxygen levels in the blood and the effects of sleep deprivation, and they even recommended changing the water used in waterboarding to a saline solution to prevent hyponatremia, or a life-threatening drop in the salt levels in the blood.

All this was to give the perpetrators of the torture grounds to claim that they were making a ‘good faith’ effort to avoid causing serious harm. But as the report puts it, ‘This strategy therefore may have effectively employed one criminal act to protect against liability for another’.

It adds, ‘Illegal and non-consensual human experimentation can constitute a war crime and a crime against humanity, when its perpetration is systematic and widespread’.

When I lived under Chile’s military dictatorship complete with a secret police that was expert in the ways of inflicting pain and protected by a judiciary entirely in the pocket of the top thugs, no one could imagine that those criminals would ever be brought to justice. And yet, the structure of impunity gradually crumbled and left them exposed to both prosecution and public repudiation.

One curious breach in the wall of impunity occurred when human rights lawyers devised a novel strategy about the disappeared: they argued that the country’s amnesty law—carefully worded to protect those who threw political prisoners into the sea from helicopters—only applied to crimes committed in the past. But ‘disappearance’ could be seen as an ongoing crime: there is no body, no proof of murder, no official accounting for the prisoner. Anyone known to have been detained, even if many years have passed, argued the relatives’ attorneys, is still technically kidnapped today.

The concept of ‘disappearance’ as an ongoing crime was accepted by Chilean courts, and the floodgates were opened.

The Ph.D.s and doctors and shrinks who signed off on these the CIA human subject experiments, loyal patriots all, should be careful to keep their names a secret. Otherwise, things might get uncomfortable when they get ready to present a paper at their next international conference.