Should US officials
& health professionals
be investigated for war crimes?

By Alan Shapiro

To the Teacher:

Physicians for Human Rights, co-winner of the 1997 Nobel Peace Prize, recently conducted an analytic study of the Bush administration's employment of health professionals to monitor "enhanced" interrogations. The study raises the question: Should Bush officials and health professionals be investigated for war crimes?

The first student reading below provides an overview of questions asked by Bush administration officials after 9/11, how they were answered and whether those answers made Americans safer. The second reading details some key findings in the PHR study and President Obama's reaction to the study. The third includes information about what medical experimentation led to at Tuskegee and in Nazi Germany, and about the medical profession's efforts to provide guides for ethical behavior. Discussion questions and suggestions for other activities follow.

See the high school section of www.teachablemoment.org for earlier materials on torture and related issues that include "Torture Memos & the Rule of Law" for the memos referred to in the readings here and Obama's response; "Any Means at Our Disposal: The Case of Binyan Mohammed" for a specific case study of prisoner treatment; "Fighting Terrorism & the Rule of Law" for readings on Bush administration legal advisors and "enhanced" interrogations; "The CIA: An Inquiry," for an outline proposal to guide student inquiries into CIA activities; and "A Sourcebook and Study Guide for High School & College Classrooms-Torture and War Crimes: The U.S. Record in Documents."

Student Reading 1:
Questions asked by Bush administration officials after 9/11

What is torture? How aggressively should American interrogators question terrorist suspects to extract information about possible future attacks? How can the government protect interrogators and government officials from charges of torture and war crimes?

After 9/11, the Bush administration Justice Department lawyers prepared and reformulated legal definitions of "torture" and invented new terminology- such as "unlawful combatants" (instead of "prisoners-of-war"), and "enhanced" interrogation techniques. This new terminology helped protect interrogators and Bush administration officials in the CIA, the Department of Justice, and the White House from investigation and possible prosecution.

Defining torture

February 2002: President Bush announced to his National Security team that US forces "shall continue to treat detainees humanely," but that he had decided not to apply the prisoner-of-war protections of the Geneva Conventions to Al Qaeda and Taliban fighters in Afghanistan because they were "unlawful combatants," a term not used in those conventions.

August 2002: Assistant Attorney-General Jay Bybee wrote a memorandum to White House Counsel Alberto Gonzales declaring that "physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function or even death…."

March 2003: Bush administration lawyers stated in a legal memorandum that "a defendant is guilty of torture only if he acts with the express purpose of inflicting severe pain or suffering." If he did not demonstrate "express purpose" in inflicting severe pain he could not be guilty of torture.

December 2004: The Justice Department posted a memorandum on its website that stated: Torture can include "severe physical suffering" as well as "severe physical pain," but rejected the memo that asserted that torture occurred only if the interrogator meant to cause harm.

January 2005: The New York Times reported on Attorney General Gonzales' assertion to Judiciary Committee members that CIA officers fall outside the bounds of a 2002 directive issued by President Bush that pledged the humane treatment of prisoners in American custody--techniques that included waterboarding. "Mr. Gonzales declined to say…what interrogation tactics would constitute torture in his view or which ones should be banned."

Bush, Cheney & the International Committee of the Red Cross

"Torture is never acceptable, nor do we hand over people to countries that do torture."
- -President Bush, 1/27/05, in one of his frequent statements that the US does not torture

October 2006: Question to Vice President Cheney from a radio interviewer: "Would you agree a dunk in water is a no-brainer if it can save lives?" Cheney: It's a no-brainer for me, but for a while there, I was criticized as being the vice president 'for torture.' We don't torture. " (10/27/06)

February 2007: The International Committee of the Red Cross (ICRC) documented some "enhanced" interrogation techniques: beating, waterboarding, sleep and food deprivation, exposure to temperature extremes, prolonged nudity, confinement to a box with insects, and such stress positions as standing naked for days with hands shackled above the head.
"Health personnel offered supervision and even assistance as suspected al-Qaeda operatives were beaten, deprived of food, exposed to temperature extremes and subjected to waterboarding," the ICRC reported. (www.washingtonpost.com, 4/7/09)

The report quoted one medical official as telling a detainee: "I look after your body only because we need you for information." (The ICRC's "Report on The Treatment of Fourteen 'High Value Detainees' In CIA Custody" was made available to the government only, but leaked to author Mark Danner, and published in the New York Review of Books (available at http://www.nybooks.com.html)

June 2010: "Sure we waterboarded Khalid Shaikh Mohammed…and would do it again to save lives," former President George W. Bush declared in a recent speech to the Economics Club of Grand Rapids, Michigan. 6/3/10)

Opposing views of "enhanced" interrogations

Did "enhanced" interrogation techniques produce life-saving information" A former speechwriter in the Bush administration, Marc Thiessen, says yes in Courting Disaster: How the CIA Kept America Safe and How Barack Obama Is inviting the Next Attack. He cites, for example, the CIA's treatment in 2002 of Abu Zubaydah, who "was subjected to beatings, sexual humiliation, temperature extremes, and waterboarding, among other techniques…[that] led to the arrest, two months later, in Chicago, of Jose Padilla, the American-born Al Qaeda recruit.

"But Ali Soufan, a former FBI agent, has testified before Congress that he elicited Padilla's identity from Zubaydah in April, 2002--months before the CIA began using its most controversial methods. Soufan, speaking to Newsweek, said, 'We didn't have to do any of this'….Nor does Thiessen address the many false confessions given by detainees under torturous pressure, some of which have led the US tragically astray."

One example is Ibn Sheikh al-Libi, who, "under duress, falsely linked Al Qaeda and Saddam Hussein's alleged biochemical-weapons program in Iraq." That led former Secretary of State Colin Powell, speaking before the UN, to cite it "prominently" in making "the case for going to war against Iraq…." (Jane Mayer, "Counterfactual," The New Yorker, 3/29/10)

For discussion

1. What questions do students have about the reading? How might they be answered?

2. In what different ways did Justice Department officials define torture? Why did definitions change?

3. Why did American officials create such new terms as "unlawful combatants" and "enhanced" interrogations?

4. Did the CIA torture prisoners? Were President Bush and Vice President Cheney telling the truth when they insisted that "Torture is never acceptable" and "We don't torture"? Why or why not? How did you decide?

5. What differing views on the effectiveness of "enhanced" interrogations do Thiessen and Mayer express? What do you think and why? If you need to know more before answering, how might you find additional information?

Student Reading 2:
Medical experiments and research on terrorist suspects

"To calibrate the level of pain"

Since the 2007 ICRC report, US employment of physicians, psychologists, and physicians' assistants during "enhanced" interrogations has been known. But in a new, analytical report, Physicians for Human Rights (PHR) details the functions performed by these health professionals.

It declares that the CIA wanted "to calibrate the level of pain experienced by detainees during interrogation." The purpose was apparently to assure that interrogators avoided any practice that crossed the "administration's legal threshold of what it claimed constituted torture"--"severe physical suffering" and/or "severe physical pain."

PHR cites evidence that the health professionals engaged in experimentation and research on prisoners and in the process "often collected and analyzed the results of those interrogations," violating the Geneva Conventions and other international agreements as well as US prohibitions on such practices.

"There is evidence that they were…extend[ing] their knowledge of the effectiveness of the techniques," lead report author Nathaniel Raymond, director of the Campaign Against Torture for the group, said in a June 7 teleconference. In the US, using human subjects in any research requires approval from an institutional review board, informed consent of subjects and minimal possibility of harm.

Details from government documents

A lengthy PHR analysis of government documents, many heavily censored, includes the following details:

*"Research and medical experimentation on detainees was used to measure the effects of large-volume waterboarding and adjust the procedure according to the results. After medical monitoring and advice, the CIA experimentally added saline, in an attempt to prevent putting detainees in a coma or killing them through over-ingestion of large amounts of plain water."

"In addition to the switch to saline solution, the agency's medical personnel introduced a special gurney so that the detainee could be moved upright quickly in case of choking. The agency also used a blood oximeter to measure vital signs, and detainees were placed on liquid diets on the advice of medical personnel so they would be less likely to choke on their own vomit, the report said." (James Risen, "Study Cites Breaches of Medical Ethics in Interrogations of Terrorism Suspects," New York Times, 6/7/10)

The PHR report observes: "Waterboarding 2.0' was the product of the CIA's developing and field-testing an intentionally harmful practice, using systematic medical monitoring," and its later application to other detainees."

*"Health professionals monitored sleep deprivation on more than a dozen detainees in 48-, 96- and 180-hour increments. This research was apparently used to monitor and assess the effects of varying levels of sleep deprivation to support legal definitions of torture and to plan future sleep deprivation techniques."

*"Health professionals appear to have analyzed data, based on their observations of 25 detainees who were subjected to individual and combined applications of 'enhanced' interrogation techniques, to determine whether one type of application over another would increase the subject's 'susceptibility to severe pain.' The alleged research appears to have been undertaken only to assess the legality of the 'enhanced' interrogation tactics and to guide future application of the techniques."

("Experiments in Torture," 6/7/10)

Physicians for Human Rights (PHR) states on its website that it "mobilizes the health professions to advance the health and dignity of all people by protecting human rights. As a founding member of the International Campaign to Ban Landmines, PHR shared the 1997 Nobel Peace Prize."

Responses from the CIA and Obama

Speaking for the CIA, Paul Gimigliano responded the PHR analysis: "The CIA did not, as part of its past detention program, conduct human subject research on any detainee or group of detainees."

Speaking after his release of memos in April 2009 describing "enhanced" interrogation techniques, President Obama objected to them, "because they undermine our moral authority," but added: "it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution. The men and women of our intelligence community serve courageously on the front lines of a dangerous world...[and] because of their sacrifices, every single American is safer….This is a time for reflection, not retribution….Nothing will be gained by spending our time and energy laying blame for the past."

Since then Obama has repeated this view: "I'm a strong believer that it's important to look forward and not backwards" when asked about an investigation and possible prosecution of Bush administration officials for torture.

The War Crimes Act of 1996 defines a war crime as "a grave breach of the Geneva Conventions." Such a breach, according to those Conventions, would include crimes "committed against persons or property protected by the Convention: willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health."

For discussion

1. What questions do you have about the reading? How might they be answered?

2. How would you explain why many government documents examined by PHR were heavily censored?

3. What do the documents appear to reveal? How did you reach your conclusion?

4. What is the CIA response to the PHR analysis? Do you agree? Why or why not?

5. President Obama declared that since CIA agents relied "in good faith upon legal advice from the Department of Justice," they should not be prosecuted. Why did the Justice Department provide such legal advice? Was it reasonable for CIA agents to rely upon it "in good faith"? Why or why not?

6. What does President Obama think about prosecution of those involved in "enhanced" interrogations? Why? Do you agree? Why or why not?

7. The president's view is that because of the work of "men and women of our intelligence community…every single American is safer." What information would you need to determine the accuracy of the president's statement about the work "of our intelligence community"? How would you go about getting it?

8. According to the War Crimes Act, do you think that Bush administration officials and health professionals should be investigated for war crimes? If so, why? If not, why not?

Disagreeing with the president, the New York Times editorialized: "The report from the physicians' group does not prove its case beyond doubt-how could it when so much is still hidden?--but it rightly calls on the White House and Congress to investigate the potentially illegal human experimentation and whether those who authorized or conducted it should be punished." (6/8/10)

The Tuskegee Syphilis Study

The Times' editorial is a reminder of what medical experimentation can lead to. On July 25, 1972, Americans learned about the Tuskegee Syphilis Study, a notorious story of medical experimentation, when the Washington Evening Star headlined on its front page: "Syphilis Patients Died Untreated."

The story began: "For 40 years, the US Public Health Service has conducted a study in which human guinea pigs, not given proper treatment, have died of syphilis and its side effects," Associated Press reporter Jean Heller wrote on July 25, 1972. "The study was conducted to determine from autopsies what the disease does to the human body."

This Public Health Service/Tuskegee Institute study had begun in 1932 with 400 poor African-American men from Macon County, Alabama. They suffered from syphilis but were told they had "bad blood" and paid for their participation with free medical exams, free meals, and free burial insurance.

In 1932 there was no cure for syphilis, but by 1947 there was--penicillin. But the Tuskegee experimenters wanted to learn more about the disease and told the 400 men nothing. During the next 40 years, many died and many of their children and wives became infected.

After public health workers leaked the story to the Star, the NAACP filed and won a class-action lawsuit and a $9 million settlement. The money was divided among the men still alive and infected wives, widows, and children.

It took another 25 years for an American president, Bill Clinton, to apologize formally. He said: "To the survivors, to the wives and family members, the children and the grandchildren, I say what you know: No power on Earth can give you back the lives lost, the pain suffered, the years of internal torment and anguish….But we can end the silence…stop turning our heads away. We can look at you in the eye and finally say, on behalf of the American people: what the United States government did was shameful.
And I am sorry." (www.npr.org, 7/25/02)

The Nazi doctors & the Nuremberg Code

"The use of humans as guinea pigs for medical experimentation dates well back in history," Gerald Astor writes. "In 1559, King Henry II of England…was amusing himself in martial sports. A lance accidentally pierced his visor and one of his eyes. His physicians, desperate to treat him, cut the heads of four healthy criminals and investigated the anatomy that surrounded the eye. The experiments failed; the king died."

Another example is the perverse behavior of Nazi doctors. Adolph Hitler had declared, "The criminals also are here to serve their Fatherland" and designated Jews, Gypsies and Slavs as "lower forms of existence" ripe for medical experimentation.

A World War II historian, Astor writes In The Last Nazi: The Life and Times of Joseph Mengele, "Mengele was drawn to Auschwitz by the camp's potential for research, a laboratory chock full of human guinea pigs. Having developed a fascination with twins as a key to the secrets of heredity, Mengele prowled the railroad siding during initial selection, seeking his twins" for experiments that included everything from injections of chemical substances to gruesome surgeries and autopsies.

But Mengele was only one, even if the most infamous, of the Nazi doctors. They exposed the "lower forms of existence" to phosgene and mustard gas and to extreme cold followed by immersion in tanks of ice-chilled water, amputated body parts for study and used human skin in a tannery, where it was manufactured into gloves, clothes, and handbags.

Following World War II, the United States and its allies conducted war crimes trials of Nazi Germany's leaders at Nuremberg, Germany. In 1947 they focused on the Nazi doctors.

The United States Holocaust Memorial Museum summarizes the results: "During World War II, German physicians conducted pseudoscientific medical experiments utilizing thousands of concentration camp prisoners without their consent….After almost 140 days of proceedings, including the testimony of 85 witnesses and the submission of almost 1,500 documents, the American judges pronounced their verdict on August 20, 1947. Sixteen of the doctors were found guilty. Seven were sentenced to death. They were executed on June 2, 1948."

Another result of this trial was the creation of the Nuremberg Code, a landmark document on medical ethics, which was adopted by the World Medical Association as their "Ethical Principles for Medical Research."

The code specifies requires "informed consent," the "absence of coercion," and "properly formulated scientific experimentation." (See the National Institutes of Health site at
http://ohsr.od.nih.gov/guidelines/nuremberg.html)

Hippocrates, the father of western medicine, said:

No principle of medical ethics is more important than "First, do no harm," a statement often traced to the teachings 2,500 years ago of Hippocrates. It is taught to this day to medical students.

Over the centuries physicians worldwide have added other medical principles. The American Medical Association's Council on Ethical and Judicial Affairs has considered ethical behavior for physicians when it comes to torture:

"Physicians must oppose and must not participate in torture for any reason. Participation in torture includes, but is not limited to, providing or withholding any services, substances, or knowledge to facilitate the practice of torture. Physicians must not be present when torture is used or threatened….

"Physicians may treat prisoners or detainees if doing so is in their best interest. Physicians should not treat individuals to verify their health so that torture can begin or continue…. Physicians should help provide support victims of torture and, whenever possible, strive to change situations in which torture is practiced or the potential for torture is great."

For discussion

1. What questions do students have about the reading? How might they be answered?

2. Why do you suppose that it was possible for the US Public Health Service to run the 40-year long Tuskegee "study" beginning in 1932 without protests from Americans? Did the health service treat the subjects of its experimentation as "lower forms of existence"? Why or why not?

3. How do you suppose that Hitler and the Nazis he led regarded Jews, Gypsies, and Slavs as "lower forms of existence"? How did regarding them this way help to make possible what Nazi doctors proceeded to do? How do you suppose that they justified their behavior to themselves?

4. What is the Nuremberg Code? Did American doctors employed by the Bush administration to participate in "enhanced" interrogations follow this code? Why or why not? How do you suppose such health professionals justified their behavior to themselves?

5. How would the American Medical Association's Council on Ethical and Judicial Affairs judge the behavior of those health professionals? Why?

6. Consider again President Obama's decision not to subject any American officials to prosecution for their participation in "enhanced" interrogations? What is the view of the New York Times? Do you agree with the president? The Times? Should government officials, as well as American health professionals, be investigated for committing war crimes? Why or why not?

For inquiry and citizenship

Many of the questions surrounding this issue revolve around how we define our terms. These are important questions for students to ask and answer. For example:

1. What, exactly, is "the rule of law"? How has it been defined? By whom? How, if at all,
would you define it differently and why? How would you decide if Bush officials
violated "the rule of law"?

2. What is torture? How is it defined, for example, in the Geneva Conventions? In the UN
Convention on Torture? By the Bush administration? How, if at all, would you define it
differently and why?

3. Did the Bush administration's "enhanced" interrogation techniques constitute torture?
In terms of what definition? Why?

4. Did the health professionals involved in "enhanced" interrogation techniques violate
medical ethics? In terms of what definition of "medical ethics"? In what ways were
medical professionals "involved"? How do you know?

5. What are "war crimes"? How have they been defined? By whom? How, if at all, would you
define them differently? How would you decide if Bush officials and health professionals should be investigated for war crimes?

6. According to President Obama, the CIA "carried out their duties relying in good faith
upon legal advice from the Department of Justice that they will not be subject to
prosecution." What meaning do you give to "good faith"? Why? What "legal advice"?
Why was it given? How do you know?

For one model of how student inquiries into such questions might proceed, see "The CIA: An Inquiry" in the high school section of www.teachablemoment.org. For approaches to student citizenship activities click on "Ideas and Essays" for "Teaching Social Responsibility."

This lesson was written for TeachableMoment.Org, a project of Morningside Center for Teaching Social Responsibility. We welcome your comments. Please email author Alan Shapiro at: lnshapiro07@gmail.com

Back to top