EXPERIMENTS
IN TORTURE:
Evidence of Human Subject
Research and Experimentation
in the “Enhanced” Interrogation Program
A White Paper by
Physicians for Human Rights
June 2010
Physicians for
Human Rights
PHR was founded in 1986 on the idea that health profes-
sionals, with their specialized skills, ethical commitments,
and credible voices, are uniquely positioned to investigate
the health consequences of human rights violations and
work to stop them.
Since 2005, PHR has documented the systematic use of
psychological and physical torture by US personnel against
detainees held at Guantánamo Bay, Abu Ghraib, Bagram
airbase, and elsewhere in its groundbreaking reports Break
Them Down; Leave No Marks; Broken Laws, Broken Lives;
and Aiding Torture.
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Authors &
Acknowledgements
The lead author for this report is Nathaniel Raymond,
Director of the Campaign Against Torture/Campaign for
Accountability at Physicians for Human Rights (PHR). The
lead medical author is Scott Allen, MD, Co-Director of the
Center for Prisoner Health and Human Rights at Brown
University and Medical Advisor to PHR. They were joined
in writing the report by Vincent Iacopino, MD, PhD, PHR
Senior Medical Advisor; Allen Keller, MD, Bellevue/NYU
Program for Survivors of Torture; Stephen Soldz, PhD,
President-elect of Psychologists for Social Responsibility
and Director of the Center for Research, Evaluation and
Program Development at the Boston Graduate School of
Psychoanalysis; Steven Reisner, PhD, PHR Advisor on
Ethics and Psychology; and John Bradshaw, JD, PHR Chief
Policy Officer and Director of PHR’s Washington DC Office.
This report has benefited from review by Deborah
Ascheim, MD, Associate Professor of Health Policy and
Medicine, Mount Sinai School of Medicine, and PHR board
member; Frank Davidoff, MD, Editor Emeritus of Annals of
Internal Medicine and vice-chair of the PHR board of direc-
tors; Robert S. Lawrence, MD, Professor in Environmental
Health Sciences, Johns Hopkins Bloomberg School of Public
Health, and chair of the PHR board of directors; Robert Jay
Lifton, MD, Lecturer in Psychiatry at Harvard Medical
School/Cambridge Health Alliance, and Distinguished
Professor Emeritus of Psychiatry and Psychology, The City
University of New York; Renée Llanusa-Cestero, MA,
CIP, La-Cesta Consultants LLC; Deborah Popowski,
JD, Skirball Fellow, Harvard Law School Human Rights
Program; and Leonard S. Rubenstein, JD, Visiting Scholar,
Johns Hopkins Bloomberg School of Public Health.
Kathleen Sullivan, JD, Chief Program Officer of
Custody Programs at PHR, oversaw the report and provided
guidance on the report’s structure and content. A. Frank
Donaghue, MA, MS, PHR Chief Executive Officer, and
Susannah Sirkin, ME, PHR Deputy Director, reviewed and
edited the report. Benjamin Greenberg, PHR Director of
Online Communications, and Sarah Kalloch, Outreach and
Constituency Organizing Director, provided critical support
to the launch of the report.
Isaac Baker, Assistant to the PHR Campaign Against
Torture/Campaign for Accountability, provided background
research and assisted in writing, editing and formatting the
report. Katrina Welt and Andrew Angely, PHR interns and
students at Northeastern University School of Law, provid-
ed legal background research for the report. Kevin Vickers,
Harvard Law School, and Klara Bolen, LLD, also contrib-
uted to legal review of the report.
This report was reviewed and edited by Stephen Greene,
Communications Consultant to PHR. It was prepared for
publication by Gurukarm Khalsa, PHR Web Editor/
Producer. Jared Voss, PHR Web Editor/Producer, produced
the video associated with the report.
PHR is deeply indebted to critical research performed
by Daniel Scarvalone, Louise Place, and Jesse Hamlin.
This report could not have been written without their
contributions.
Evidence of Human Subject Research and Experimentation in the “Enhanced” Interrogation Program 1
Table of Contents
Executive Summary 3
Methods and Limitations 4
Recommendations 4
Background on Illegal and Unethical Research and Experimentation 5
US Laws and Regulations Governing Human Subject Research and Experimentation 5
The Bush Administration Violated Human Subject Protections after Sept. 11, 2001 6
Three Instances of Human Subject Research and Experimentation 7
Evidence of Research and Experimentation 7
Health Professionals Develop New Methods and Procedures for Waterboarding 7
The Use of Saline as Part of Waterboarding 8
“Waterboarding 2.0” 8
Researching the “Susceptibility” of Detainees to Severe Pain 9
Researching the Effects of Sleep Deprivation on Detainees 10
Apparent Purposes for Human Research and
Experimentation on Detainees 10
Limited Practical Scientific Knowledge on How to Deploy EITs 10
Calibrating Levels of Pain and Suffering in Accordance with the OLC Memos 10
Human Experimentation to Provide a Basis for a “Good Faith”
Legal Defense Against Charges of Torture 11
Operational Implementation of OLC Guidance by the CIA 11
The Bradbury “Combined Techniques” Memo Relied on Research Data from Detainees 12
Human Experimentation and Human Subject Protections 13
The Nuremberg Code 13
The National Commission 13
The Common Rule 13
Legal and Ethical Standards Violated Following Sept. 11, 2001 14
Violation of the Geneva Conventions 14
Contravention of the Nuremberg Code 14
Disregarding and Amending the US War Crimes Act 14
Conclusions and Recommendations 15
Recommendations 16
continued
2
Experiments in Torture
Glossary of Abbreviations and Terms 17
Appendix 1 18
The Nature of Experimentation: Health Professional Monitoring
of the “Enhanced” Interrogation Program 18
The SERE Studies: A Summary of Research Findings on the
Effects of “Enhanced” Interrogation Techniques on Voluntary Soldier Subjects 19
Detailed Summary of Military Survival Training (SERE) Studies and
What They Teach Us about the Effects of “Enhanced” Interrogation Techniques 20
Methodology of SERE Studies 21
Results 21
Neuroendocrine changes 21
Cortisol 22
Norepinephrine and Epinephrine (Noradrenaline and Adrenaline) 22
Neuropeptide-Y (NPY) 22
Testosterone 22
Thyroid Function 23
Psychological Assessment 23
Factors affecting level of psychological stress: unavoidable stress 23
Variability between subjects 24
Limitations of the Studies 24
Later SERE Studies 24
The SERE Studies in the Context of Alleged Human Experimentation
in the US Torture Program 24
Appendix 2 25
Health Professional Ethics on Detainee Research and Interrogation 25
American Medical Association 25
American Psychiatric Association 26
American Psychological Association 26
United Nations 26
World Medical Association 26
Evidence of Human Subject Research and Experimentation in the “Enhanced” Interrogation Program 3
Executive Summary
Following the Sept. 11, 2001, attacks, the Bush admin-
istration initiated new human intelligence collection pro-
grams. To that end, it detained and questioned an unknown
number of people suspected of having links to terrorist or-
ganizations. As part of these programs, the Bush adminis-
tration redefined acts, such as waterboarding, forced nudity,
sleep deprivation, temperature extremes, stress positions and
prolonged isolation, that had previously been recognized as
illegal, to be “safe, legal and effective” “enhanced” inter-
rogation techniques (EITs).
Bush administration lawyers at the Department of
Justice’s (DoJ’s) Office of Legal Counsel (OLC) accom-
plished this redefinition by establishing legal thresholds for
torture, which required medical monitoring of every appli-
cation of “enhanced” interrogation. Medical personnel were
ostensibly responsible for ensuring that the legal threshold
for “severe physical and mental pain” was not crossed by
interrogators, but their presence and complicity in intention-
ally harmful interrogation practices were not only appar-
ently intended to enable the routine practice of torture, but
also to serve as a potential legal defense against criminal
liability for torture.
Investigation and analysis of US government documents
by Physicians for Human Rights (PHR) provides evidence in-
dicating that the Bush administration, in the period after Sept.
11, conducted human research and experimentation on pris-
oners in US custody as part of this monitoring role. Health
professionals working for and on behalf of the CIA monitored
the interrogations of detainees, collected and analyzed the
results of those interrogations, and sought to derive general-
izable inferences to be applied to subsequent interrogations.
Such acts may be seen as the conduct of research and experi-
mentation by health professionals on prisoners, which could
violate accepted standards of medical ethics, as well as do-
mestic and international law. These practices could, in some
cases, constitute war crimes and crimes against humanity.
The knowledge obtained through this process appears to
have been motivated by a need to justify and to shape future
interrogation policy and procedure, as well as to justify and
to shape the legal environment in which the interrogation
program operated.
PHR analyzes three instances of apparent illegal and un-
ethical human subject research for this report:
Medical personnel were required to monitor all
1.
waterboarding practices and collect detailed medical
information that was used to design, develop, and
deploy subsequent waterboarding procedures;
Information on the effects of simultaneous versus
2.
sequential application of the interrogation techniques
on detainees was collected and used to establish the
policy for using tactics in combination. These data
were gathered through an assessment of the presumed
“susceptibility” of the subjects to severe pain;
Information collected by health professionals on the
3.
effects of sleep deprivation on detainees was used to
establish the “enhanced” interrogation program’s (EIP)
sleep deprivation policy.
The human subject research apparently served several
purposes. It increased information on the physical and psy-
chological impact of the CIA’s application of the “enhanced”
interrogation techniques, which previously had been limited
mostly to data from experiments using US military volun-
teers under very limited, simulated conditions of torture. It
served to calibrate the level of pain experienced by detain-
ees during interrogation, ostensibly to keep it from cross-
ing the administration’s legal threshold of what it claimed
constituted torture. It also served as an attempt to provide
a basis for a legal defense against possible torture charges
against those who carried out the interrogations, since medi-
cal monitoring would demonstrate, according to the Office
of Legal Counsel memos, a lack of intent to cause harm to
the subjects of interrogations.
Yet the Bush administration’s legal framework to protect
CIA interrogators from violating US statutory and treaty
obligations prohibiting torture effectively contravened
well-established legal and ethical codes, that, had they been
enforced, should have protected prisoners against human
experimentation, and should have prevented the “enhanced”
interrogation program from being initiated in the first place.
There is no evidence that the Office of Legal Counsel ever
assessed the lawfulness of the medical monitoring of tor-
ture, as it did with the use of the “enhanced” techniques
themselves.
The use of torture and cruel and inhuman treatment in in-
terrogations of detainees in US custody has been well-docu-
mented by Physicians for Human Rights (PHR) and others.
The role of health professionals in designing, monitoring
and participating in torture also has been investigated and
publicly documented. This current report provides evidence
that in addition to medical complicity in torture, health pro-
fessionals participated in research and experimentation on
detainees in US custody.
The use of human beings as research subjects has a long
and disturbing history filled with misguided and often will-
fully unethical experimentation. Ethical codes and federal
regulations have been established to protect human subjects
from harm and include clear standards for informed consent
of participants in research, an absence of coercion, and a
requirement for rigorous scientific procedures. The essence
of the ethical and legal protections for human subjects is
that the subjects, especially vulnerable populations such as
prisoners, must be treated with the dignity befitting human
beings and not simply as experimental guinea pigs.
4
Experiments in Torture
The use of health professionals to monitor intentionally
harmful interrogation techniques places them in the service of
national security objectives which are in conflict with the in-
terests of those who they are monitoring. The result has been
a co-opting of health professionals by the national security ap-
paratus and a violation of the highest medical admonition to
“do no harm.” Until the questions examined in this paper are
answered and, if ethical violations or crimes were committed,
those responsible are held accountable, the misuse of medi-
cal and scientific expertise for expedient and non-therapeutic
goals jeopardizes the ethical integrity of the profession, and
the public trust in the healing professions risks being seri-
ously compromised.
Methods and Limitations
This PHR report draws primarily upon US government
documents in the public record, including memoranda
from the Office of Legal Counsel and the CIA’s Office of
Inspector General Special Review of the CIA Enhanced
Interrogation Program.
Most of these documents are heavily redacted and many
additional, relevant documents remain classified. While
the observational medical monitoring data are not publicly
available for the instances indicating human experimenta-
tion cited by PHR, and while the specific extent to which
medical personnel complied with requirements of the CIA’s
Office of Medical Services (OMS) monitoring requirements
is not known, there is clear evidence that medical person-
nel were required to monitor and document all EIT practices
and that generalizable knowledge derived therefrom subse-
quently was used to refine harmful EIT practices.
While this report provides evidence that data from hu-
man research were compiled, apparently analyzed, and used
to affect subsequent interrogations and to set policy, a com-
prehensive federal investigation is required to answer the
questions this evidence raises.
Recommendations
Physicians for Human Rights calls on the White House
and Congress to investigate thoroughly the full scope of the
possible human experimentation designed and implemented
in the post-Sept. 11 period. The War Crimes Act must be
amended to restore traditional human subject protections.
Those who authorized, designed, implemented and su-
pervised these alleged practices of human experimentation
— whether health professionals, uniformed personnel, or ci-
vilian national security officials — must be held to account
for their actions if they are found to have violated what in-
ternational tribunals previously have held to constitute war
crimes and crimes against humanity.
If any victims of research and experimentation perpetrated
by the United States are found, they must be offered compensa-
tion, including health care services, to address ongoing health
effects related to the experimentation, and a formal apology.
Based on the findings of this investigation, the United
States should take the following actions:
President Obama must order the attorney general to
1.
undertake an immediate criminal investigation of alleged
illegal human experimentation and research on detainees
conducted by the CIA and other government agencies
following the attacks on Sept. 11, 2001.
The secretary of the Department of Health and Human
2.
Services must instruct the Office for Human Research
Protections (OHRP) to begin an investigation of alleged
violations of the Common Rule by the CIA and other gov-
ernment agencies as part of the “enhanced” interrogation
program.
Congress must amend the War Crimes Act to eliminate
3.
changes made to the Act in 2006 which weaken the
prohibition on biological experimentation on detainees,
and ensure that the War Crimes Act definition of the grave
breach of biological experimentation is consistent with the
definition of that crime under the Geneva Conventions.
Congress should convene a joint select committee com-
4.
prising members of the House and Senate committees re-
sponsible for oversight on intelligence, military, judiciary
and health and human services matters to conduct a full
investigation of alleged human research and experimenta-
tion activities on detainees in US custody.
President Obama should issue an executive order
5.
immediately suspending any federally funded human
subject research currently occurring in secret — regardless
of whether or not it involves detainees.
The Department of Justice’s Office of Professional
6.
Responsibility should commence an investigation into
alleged professional misconduct by OLC lawyers related
to violations of domestic and international law and
regulations governing prohibitions on human subject
experimentation and research on detainees.
President Obama should appoint a presidential task force
7.
to restore the integrity of the US regime of protections for
human research subjects. This task force, comprising cur-
rent and former officials from the Department of Health and
Human Services, the Food and Drug Administration, the
National Institutes of Health, the human rights community,
and leading health professional associations, should review
current human subject protections for detainees, and recom-
mend changes to ensure that the human rights of those in US
custody are upheld.
States should adopt policies specifically prohibiting partic-
8.
ipation in torture and improper treatment of prisoners by
health care professionals. Such participation is considered
professional misconduct and is grounds for loss of profes-
sional licensure. Proposed legislation in New York State
provides a model for such policy.
The United Nations special rapporteur on torture should
9.
undertake an investigation of allegations that the United
States engaged in gross violations of international human
rights law by engaging in human subject research and
experimentation on detainees in its custody.
Evidence of Human Subject Research and Experimentation in the “Enhanced” Interrogation Program 5
Background on Illegal
and Unethical Research
and Experimentation
Bush administration lawyers at the Department of
Justice’s (DoJ’s) Office of Legal Counsel (OLC) utilized
the collection and application of medical information from
detainees for the purpose of drawing conclusions about the
potential harm inflicted from the acts committed during “en-
hanced” interrogation, in an attempt to redefine acts previ-
ously recognized as torture to be “safe, legal and effective”
interrogation techniques.
The OLC lawyers accomplished this by establishing
legal thresholds for “severe physical and mental pain” for
torture that could only be assessed by meticulous medical
monitoring of individual enhanced interrogation techniques.
Whether the OLC lawyers or the health professionals in-
volved realized that the federally-funded systematic collec-
tion and recording of those observations for such purposes
constitutes human experimentation may be important in as-
sessing intent, but has no bearing on whether or not it can
constitute a crime. It is important to understand that the
evidence of human experimentation presented in this report
was part of an interrogation program that authorized torture
and required the complicity of health professionals in the
intentional infliction of harm.
US Laws and Regulations Governing
Human Subject Research and
Experimentation
Human subject experimentation and research have
specific meanings in US law. Federal regulations define
research as follows:
Research means a systematic investigation, including
research development, testing and evaluation, designed
to develop or contribute to generalizable knowledge.
Activities which meet this definition constitute research
for purposes of this policy, whether or not they are con-
ducted or supported under a program which is consid-
ered research for other purposes.1
Human subject research is defined under federal regula-
tions as follows:
Human subject means a living individual about whom
an investigator (whether professional or student) con-
ducting research obtains
data through intervention or interaction with the
1.
individual, or
identifiable private information.
2.
2
1.
45 Code of Federal Regulations (C.F.R.) § 46.102(d) (2005)
2.
Ibid
Human research, therefore, involves the systematic col-
lection of data for the purpose of drawing generalizable in-
ferences. Activities that constitute human subject research
and experimentation do not require a particular research
study design, the testing of hypotheses, or the use of control
groups. Many types of legitimate human subject research3
constitute human experimentation, including observational
studies, such as the SERE4 (Survival, Evasion, Resistance,
and Escape) studies, which evaluated the effects of various
interrogation techniques on US soldier-subjects, and for
which human subject protections applied and informed con-
sent was required and obtained. The systematic collection of
personalized information from any human subjects, whether
patients, volunteers, soldier-subjects, prisoners, or any other
group, for purposes other than their direct benefit requires
human subject protections, such as informed consent, and
prospective review of and approval by an institutional re-
view board (IRB), regardless of the information-gathering
methods used or the stated purpose of the inquiry.
In general, federally funded experimentation involving
human subjects can occur only with the prior informed con-
sent of the study subjects. Human experimentation without
the consent of the subject is a violation of international hu-
man rights law to which the United States is subject; federal
statutes; the Common Rule, which comprises the federal
regulations for research on human subjects and applies to
17 federal agencies, including the Central Intelligence
Agency (CIA) and the Department of Defense (DoD); and
universally accepted health professional ethics, including
the Nuremberg Code.5 Human experimentation on detainees
also can constitute a war crime6 and a crime against human-
ity7 in certain circumstances.
In US medical and other scientific settings, federally
funded research regimes involving human subjects are sub-
jected to a rigorous pre-approval process by the research
institution’s IRB or similar mechanism. In both civilian and
government settings, the institutional review board prospec-
tively reviews the purposes, methods, and goals of the proj-
ect, the benefits expected to result, the potential harm to vol-
unteer subjects, the investigators’ efforts to minimize these
harms, and specific details about how informed consent of
3. Legitimate human subject research conducted by health professionals,
academic researchers, and other scientists can include studying the
effectiveness of specific medical treatments on patients, collecting data to
better understand a sociological problem, or assessing the susceptibility of
certain demographic groups to disease, etc.
4. US military and intelligence services participate in Survival, Evasion,
Resistance, Escape (SERE) training to prepare their personnel to withstand
torture and abuse if captured by a hostile force that does not observe the
Geneva Conventions’ standards for POW treatment.
5. 45 C.F.R. §§ 46.101-46.124 (2005).
6. Nuremberg Code, reprinted in Trials of War Criminals before the
Nuremberg Military Tribunals Under Control Council Law No. 10. Vol. 2.
Washington: GPO, 1949: 181-82. 15 vols. 1946-49.
7. Rome Statute of the International Criminal Court. Part 2: Jurisdiction,
Admissibility and Applicable Law, Article 7: Crimes Against Humanity
(1998-2002). Web. 01 Jun. 2010. romefra.htm>.
6
Experiments in Torture
the volunteer subjects will be obtained. Any US health pro-
fessional who has participated in research involving humans
is required to be fully familiar with such approval mecha-
nisms, which credible institutions undertake with the utmost
rigor and seriousness in promoting the ethical conduct of
human research, in compliance with the Nuremberg Code
and other international and US research standards.
The essence of the extensive ethical and legal protections
for human subjects is that the subjects, especially vulnerable
populations such as prisoners, must be treated with the dig-
nity befitting human beings and not simply as experimental
guinea pigs. The Nuremberg Code and other guidances also
call on the medical professional to treat persons with their
best interests in mind and to minimize pain or other risks
and harms in the service of a research goal. Doctors are re-
quired to use treatments that are expected to be effective and
not to engage in speculative medicine at the expense of a
human research subject.
By contrast, no official, explicit review and authoriza-
tion by an institutional review board for research on detain-
ees who were designated as enemy combatants during the
period in question exists in the public record, to fulfill the
requirements of the Common Rule.8 No publicly-available
evidence indicates that the Bush administration ever sought
or received such formal authorization for the “enhanced” in-
telligence research program. There is also no evidence that
the CIA or DoD ever filed a waiver for informed consent
covering this research with the Department of Health and
Human Services (HHS), as required by federal regulations.9
No evidence has yet been made public of a formal
protocol for research by the CIA’s Office of Medical Services
(OMS) on detainees in US custody. However, several
examples within the DoJ memos and other government
documents reveal the implementation of a program of
medical monitoring that involved many core elements
of a research regime,10 namely, the meticulous collection
and analysis of data to derive generalizable knowledge (in
this case, knowledge relating to the “safety” and effects
of torture techniques). As Llanusa-Cestero documented in
Accountability in Research, the core elements, goals, roles,
and rationales of a research plan are present in declassified
documents related to the “enhanced” intelligence program
8. Llanusa-Cestero, Renée. “Unethical Research and the C.I.A. Inspector
General Report of 2004: Observations Implicit in Terms of the Common
Rule.” Accountability in Research 17.2 (2010): 99. Print.
9.
45 C.F.R. § 46.117(c) (2005).
10. See generally Memorandum from Steven G. Bradbury, Principal
Deputy Assistant Attorney General, for John A. Rizzo, Senior Deputy
General Counsel, Central Intelligence Agency (10 May 2005). Web. 11
Mar. 2010 pdf>; see also generally Memorandum from Steven G. Bradbury, Principal
Deputy Assistant Attorney General, for John A. Rizzo, Senior Deputy
General Counsel, Central Intelligence Agency (10 May 2005). Web. 11
Mar. 2010 bradbury46pg.pdf>.
(EIP), despite there being no public evidence of IRB
approval or a formalized research plan.11
Both before and after Sept. 11, 2001, experimentation for
non-clinical purposes on detainees by US military and in-
telligence services—either with or without their consent—
would not have been permissible under widely accepted and
understood interpretations of US and international law and
medical ethics. Such experimentation violates accepted US
legal interpretations, as well as all governing codes of con-
duct for any health professionals involved.
Also, the “science” on which the authorization of the EIP
was based is flawed by any reasonable standard because it
served as a means of justifying a predetermined legal end
of aiding in the authorization of torture.12 Even the claim
of systematic medical monitoring in the name of making
“enhanced” intelligence techniques (EITs) “safe, legal, and
effective” is contradicted by official monitoring policy,
which failed to adequately take into account the mental
harm caused by the tactics, among other factors.13 In fact,
the “enhanced” interrogation techniques are premised on the
infliction of mental harm, so the concept of studying them
to make them more effective is ethically impermissible, and
studying them to make them “safer” is logically untenable
— as the techniques are unsafe by design.
The Bush Administration Violated
Human Subject Protections after
Sept. 11, 2001
Physicians for Human Rights (PHR) has identified
evidence that in the months and years following the Sept.
11, 2001 attacks, the Bush administration violated essential
standards that prohibited human experimentation on
detainees. The experimentation that ensued by evading these
legal and ethical standards was then in turn apparently used
by the Office of Legal Counsel as a basis for concluding that
the EIP did not constitute torture and that those who carried
out the program would not be subject to prosecution.
No publicly available “blueprint” has come to light re-
garding the implementation of detainee experimentation as
a component of the EIP during the Bush years. PHR’s as-
sessment of this program therefore relies upon facts from
the public record that require further inquiry by Congress
11. See generally Llanusa-Cestero, Renée. “Unethical Research and the
C.I.A. Inspector General Report of 2004: Observations Implicit in Terms of
the Common Rule.” Accountability in Research 17.2 (2010): 96-113. Print.
12. The body of this report analyzes declassified Bush-era documents from
Department of Justice’s Office of Legal Counsel, the CIA’s Office of Inspector
General, the Department of Justice’s Office of Professional Responsibility,
and related documents demonstrating evidence of illegal and unethical human
subject research and experimentation. Appendix 1 reviews the medical
literature generated by IRB-approved studies of the US government’s military
survival training program performed prior to Sept. 11, 2001.
13. Central Intelligence Agency, Office of Inspector
General. Counterterrorism Detention and Interrogations, Special Review.
Central Intelligence Agency (2004): Appendix F, 10. Web. 11 Mar. 2010.
.
Evidence of Human Subject Research and Experimentation in the “Enhanced” Interrogation Program 7
and government investigators who have full access to in-
formation currently unavailable to the public. Declassified
public documents do not demonstrate that the experimental
regime employed on detainees came complete with stated
hypotheses, methodology, results, and conclusions — the
fundamental elements of all legitimate scientific investiga-
tion. The declassified public documents do, however, pro-
vide evidence of human experimentation that is consistent
with legal definitions of human subject research and experi-
mentation cited above, namely, the systematic collection of
data and/or identifiable personal information for the purpose
of drawing generalizable inferences.
The subject of interrogation and research is not simply
relevant to the issue of accountability for alleged crimes
committed in the recent past by the Bush administration.
It also pertains to ongoing activities by the US intelligence
community. In testimony before the House Intelligence
Committee in February 2010, President Obama’s director of
national intelligence, Admiral Dennis Blair (USN-Ret.), dis-
closed that the United States has established an elite inter-
rogation unit that will conduct “scientific research” to find
better ways to question suspected terrorists.
While stating that the unit’s responsibility is to do “the
scientific research to determine if there are better ways to
get information from people that are consistent with our
values,” the director declined to provide details about this
research effort, including whether or not it would involve
human subjects, and, in particular, subjects in vulnerable
populations. A spokesman for the director stressed that the
program would follow US law.14 Given recent history, this
program must be subject to rigorous oversight to avoid po-
tential violations of human subject research protections.
Three Instances of Human Subject
Research and Experimentation
The available evidence of human experimentation comes
from declassified government documents which detail a
policy of systematic medical monitoring of the “enhanced”
interrogation techniques by health professionals, and de-
scribes the use of the medical information so collected to
produce generalizable knowledge that could inform specific
EIT practices and to justify the EI program.
Three instances that provide evidence of illegal and un-
ethical human subject research and experimentation are ana-
lyzed by Physicians for Human Rights in this report. Actual
observational medical monitoring data are not publicly
available in the instances cited below. However, data col-
14. “US doing ‘scientific research’ to boost interrogations.” AFP. AFP,
3 Feb. 2010. Web. 12 Mar. 2010 afp/article/ALeqM5jnITWjCSzrqYadyYwZ8e_p4C347Q>; Mann, Simon.
“Interrogators will do ‘research,’ not torture.” Sydney Morning Herald 5 Feb.
2010. 12 Mar. 2010 research-not-torture-20100204-nga9.html>.
lection was required by OMS monitoring guidelines,15 and a
Justice Department memo draws legal conclusions about the
permissibility of the techniques based on apparent scientific
analysis of the OMS data referenced in the memos.
Medical personnel were required to monitor all
1.
waterboarding practices and collect detailed medical
information that was used to design, develop, and
deploy subsequent waterboarding procedures;
Information on the effects of simultaneous versus
2.
sequential application of the abusive interrogation
techniques on detainees was collected and used to
establish the policy for using tactics in combination.
These data were gathered through an assessment of the
presumed “susceptibility” of the subjects to severe pain;
Information collected by health professionals on the
3.
effects of sleep deprivation on detainees was used to
establish EIP sleep deprivation policy.
Evidence of Research
and Experimentation
Health Professionals Develop
New Methods and Procedures for
Waterboarding
In the instance of waterboarding, the evidence of human
experimentation consists of highly specific OMS guidelines
for the systematic collection and documentation of medical
data and subsequent refinement of waterboarding practices
which apparently made use of such required medical moni-
toring and documentation (i.e. the use of potable saline and a
specialized gurney). Although actual waterboarding medical
observations/data are not publicly available, and the extent
to which medical personnel complied with OMS monitoring
guidelines is not known, it is clear that the OMS policy of
compulsory monitoring was followed by a series of revised
waterboarding practices.
It is important to note that the involvement of medical
personnel in waterboarding could represent evidence of hu-
man experimentation. Such medical involvement illustrates
the danger and harm inherent in the practice of waterboard-
ing and the enlistment of medical personnel in an effort to
disguise a universally recognized torture tactic as a “safe,
legal and effective” interrogation tactic.
15. Central Intelligence Agency, Office of Inspector
General. Counterterrorism Detention and Interrogations, Special Review.
Central Intelligence Agency (2004): Appendix F, 10. Web. 11 Mar. 2010.
.
8
Experiments in Torture
In this excerpt from the CIA guidelines for OMS health
professionals involved in the EIP, the health professionals
are explicitly directed to record:
…how long each application (and the entire procedure)
lasted, how much water was applied (realizing that much
splashes off), how exactly the water was applied, if a
seal was achieved, if the naso- or oropharynx was filled,
what sort of volume was expelled, how long was the
break between applications, and how the subject looked
between each treatment.16
The results of this monitoring were apparently used in
subsequent assessments of the procedure’s safety. Then
Principal Deputy Assistant Attorney General Steven G.
Bradbury to then Acting CIA General Counsel John A.
Rizzo states in his 2005 “combined techniques” memo that:
We understand that these limitations have been estab-
lished with extensive input from OMS, based on experi-
ence to date with this technique and OMS’s professional
judgment that use of the waterboard on a healthy indi-
vidual subject to these limitations would be ‘medically
acceptable.’17
Prior to the experimental use of large-volume waterboard-
ing on detainees in US custody, little scientific information
was apparently available to OMS to develop parameters for
the application of this technique. The OMS guidelines state:
A rigid guide to the medically approved use of the
waterboard in essentially healthy individuals is not
possible, as safety will depend on how the water is ap-
plied and the specific response each time it is used. The
following general guidelines are based on very limited
knowledge, drawn from very few subjects whose experi-
ence and response was quite varied.18
OMS health professionals were directed by their superi-
ors at CIA to collect information on, and apply their find-
ings to the application of waterboarding. That knowledge
appears explicitly intended to be used to “best inform future
medical judgments,” or to develop generalizable knowl-
edge about new procedures for applying the technique of
waterboarding.
The Use of Saline as Part of Waterboarding
According to the Bradbury memoranda (see page 12,
this paper), OMS teams, based on their observation of
detainee responses to waterboarding, replaced water in the
waterboarding procedure with saline solution ostensibly to
reduce the detainees’ risk of contracting pneumonia and/
16. Ibid.
17. Memorandum from Steven G. Bradbury, Principal Deputy Assistant
Attorney General, for John A. Rizzo, Senior Deputy General Counsel,
Central Intelligence Agency (10 May 2005): 14. Web. 11 Mar. 2010 luxmedia.vo.llnwd.net/o10/clients/aclu/olc_05102005_bradbury46pg.pdf>.
18. Central Intelligence Agency, Office of Inspector General.
Counterterrorism Detention and Interrogations, Special Review. Central
Intelligence Agency (2004): Appendix F, 9. Web. 11 Mar. 2010. www.gwu.edu/~nsarchiv/torture_archive/20040507.pdf>.
or hyponatremia, a condition of low sodium levels in the
blood caused by free water intoxication, which can lead to
brain edema and herniation, coma, and death.19 Bradbury
stated that, “based on advice of medical personnel, the CIA
requires that saline solution be used instead of plain water
to reduce the possibility of hyponatremia (i.e., reduced
concentration of sodium in the blood) if the detainee drinks
the water.”20
Prior to the procedures for waterboarding described in
these memoranda, the experience with waterboarding was
limited to resricted applications of waterboarding in SERE
training. The use of saline in the CIA’s application of wa-
terboarding, as a response to potential medical conditions
induced by uncontrolled ingestion of large volumes of
water, contrasts with the application of the waterboarding
technique in SERE training. Pouring saline into the detainee
instead of water would be medically necessary only if the
tactic were being used repeatedly on a subject, which was
not done to participants in the SERE project. In the case of
one CIA detainee, Khalid Sheik Mohammed, the technique
was used at least 183 times.21 Under the SERE program’s
guidelines (established under an IRB regime and imple-
mented with the informed consent of the military trainees
who participated in it), the waterboard technique employed
water, not saline, and was used on trainees only once:
WATERBOARD: Subject is interrogated while strapped
to a wooden board, approximately 4’x7’. Often the sub-
ject’s feet are elevated after being strapped down and hav-
ing their torso stripped. Up to 1.5 gallons of water is slow-
ly poured directly onto the subject’s face from a height of
12-24 inches. In some cases, a wet cloth is placed over the
subject’s face. It will remain in place for a short period of
time. Trained supervisory and medial [sic] staff monitors
the subject’s physical condition… However, no student
will have water applied a second time.22
“Waterboarding 2.0”
Changes to the waterboarding technique described above
resulted in a set of procedures and protocols that differs
markedly from those used in the SERE training program.
The differences between the CIA’s eventual application of
waterboarding and that of the SERE program indicate that
CIA medical personnel helped modify the SERE version of
19. Medline Plus. “Hyponatremia.” U.S. National Library of Medicine and
National Institutes of Health, 6 Nov. 2009. Web. 11 March 2010 www.nlm.nih.gov/medlineplus/ency/article/000394.htm>.
20. Memorandum from Steven G. Bradbury, Principal Deputy Assistant
Attorney General, for John A. Rizzo, Senior Deputy General Counsel,
Central Intelligence Agency (10 May 2005): 13. Web. 11 Mar. 2010 luxmedia.vo.llnwd.net/o10/clients/aclu/olc_05102005_bradbury46pg.pdf>.
21. Memorandum from Steven G. Bradbury, Principal Deputy Assistant
Attorney General, for John A. Rizzo, Senior Deputy General Counsel,
Central Intelligence Agency (30 May 2005): 37. Web. 12 Mar. 2010 luxmedia.vo.llnwd.net/o10/clients/aclu/olc_05302005_bradbury.pdf>.
22. United States. Cong. Senate. Committee on Armed Services. Hearing,
The Treatment of Detainees in U.S. Custody. 110th Cong., 2nd Sess.
Washington: GPO, 2008: Annex A, 209. Web. 11 Mar. 2010 fas.org/irp/congress/2008_hr/treatment.pdf>.
Evidence of Human Subject Research and Experimentation in the “Enhanced” Interrogation Program 9
the technique.23 “Waterboarding 2.0” was the product of the
CIA’s developing and field-testing an intentionally harmful
practice using systematic medical monitoring and the appli-
cation of subsequent generalizable knowledge.
In addition to introducing the use of potable saline to the
CIA’s use of waterboarding, OMS supervised the introduc-
tion of other specific medical equipment and procedures for
waterboarding. These included a “specially designed” gur-
ney to move the detainee upright quickly in case of choking,
the use of a blood oximeter to measure detainee vital signs,
placing detainees on a liquid diet so their emesis would be
soft and less likely to cause choking or aspiration pneumo-
nia if the detainee were to vomit, and having a tracheotomy
kit “not visible to the detainee” present in case a detainee’s
airway had to be surgically opened in order to prevent
drowning.24
Without evidence of a procedurally appropriate amend-
ment to the SERE IRB process, the series of changes to
the waterboarding technique implemented by CIA person-
nel cannot scientifically or legally be considered merely an
extension of previous SERE IRB approvals. Importantly,
SERE research on the effect of the tactics on humans was
done with the subjects’ signed consent. OMS personnel
were likely performing this particular experiment without
informed consent because they were engaging in purposeful
torture of the subject. Even with some form of IRB approval,
this research and subsequent modification of waterboarding
or any other torture technique would still represent a serious
violation of medical ethics and international human rights
law because of the nature of the two acts being carried out
— research on a prisoner and the infliction of torture.
Researching the “Susceptibility” of
Detainees to Severe Pain
In the second and third instances indicating human
experimentation presented here, the evidence also suggests
that the collection of medical information was acquired
and applied to inform subsequent EI practices. In the
second instance, health professionals analyzed data based
on observations of 25 detainees who were subjected to
individual and combined applications of the EITs. They
derived generalizable knowledge about whether one type
of application over another would increase the subjects’
susceptibility to severe pain.
This investigation had no direct clinical health care ap-
plication, nor was it in the detainees’ personal interest nor
23. Physicians for Human Rights. Aiding Torture: Health Professionals’
Ethics and Human Rights Violations Revealed in the May 2004 CIA
Inspector General’s Report. Cambridge: Physicians for Human Rights
(2009). Web. 15 Mar. 2010 documents/reports/aiding-torture.pdf>.
24. Memorandum from Steven G. Bradbury, Principal Deputy Assistant
Attorney General, for John A. Rizzo, Senior Deputy General Counsel,
Central Intelligence Agency (10 May 2005): 14. Web. 11 Mar. 2010 luxmedia.vo.llnwd.net/o10/clients/aclu/olc_05102005_bradbury46pg.pdf>.
part of their medical management. It appears to have been
used primarily to enable the Bush administration to assess
the legality of the tactics, and to inform medical monitor-
ing policy and procedure for future application of the tech-
niques. While the actual findings and/or observational data
are not publicly available and may not even exist, it is clear
that the authorized policy of using multiple EITs simulta-
neously was officially based on medical observations of 25
detainees.
This evidence of research on detainees is documented in
the 2005 OLC memo (known as the “combined techniques”
memo) from Bradbury to Rizzo. In the following excerpt,
Bradbury references OMS observations of 25 detainees sub-
jected to the tactics to argue that the use of the EITs in com-
bination, rather than individually, would not likely make
detainees more susceptible to pain:25
But as we understand the experience involving the
combination of various techniques, the OMS medical
and psychological personnel have not observed any such
increase in susceptibility. Other than the waterboard,
the specific techniques under consideration in this
memorandum – including sleep deprivation – have been
applied to more than 25 detainees. See [redacted] Fax
at 1-3. No apparent increase in susceptibility to severe
pain has been observed either when techniques are used
sequentially or when they are used simultaneously – for
example, when an insult slap is simultaneously com-
bined with water dousing or a kneeling stress position,
or when wall standing is simultaneously combined
with an abdominal slap and water dousing. Nor does
experience show that, even apart from changes in sus-
ceptibility to pain, combinations of these techniques
cause the techniques to operate differently so as to cause
severe pain. OMS doctors and psychologists, moreover,
confirm that they expect that the techniques, when com-
bined as described in the Background Paper and in the
April 22 [redacted] Fax, would not operate in a different
manner from the way they do individually, so as to cause
severe pain.26
The relationship between the collection of medical
knowledge on 25 detainees and the justification of the of-
ficial practice of simultaneous application of multiple EITs
is stated explicitly in the Bradbury memo on the combined
techniques. It is unclear whether the data referenced in the
memo were collected specifically for the purpose of deter-
mining the “susceptibility” to severe pain caused by com-
bined application of the techniques, or whether they were
analyzed after being generally collected as part of standard
OMS monitoring policy. Regardless, the data and the con-
clusions drawn from it were utilized to justify the applica-
tion of simultaneous and combined “enhanced” techniques.
25. The validity of such conclusions are questionable given major
limitations associated with the outcome measures described in the study.
26. Memorandum from Steven G. Bradbury, Principal Deputy Assistant
Attorney General, for John A. Rizzo, Senior Deputy General Counsel,
Central Intelligence Agency (10 May 2005): 12. Web. 11 Mar. 2010
.
10
Experiments in Torture
Researching the Effects of Sleep
Deprivation on Detainees
The specific process of data analysis of varied applications
of sleep deprivation, and the identities of those who per-
formed it, are not currently evident from public documents.
It is clear, however, that the application of this particular
course of monitoring and assessment demonstrates that US
government lawyers used such observational data collected
by health professionals from varying applications of sleep
deprivation to inform legal evaluations regarding the risk of
inflicting certain levels of harm on the detainee, and to shape
policy that would guide further application of the technique
on other detainees:27
You have informed us that to date, more than a dozen de-
tainees have been subjected to sleep deprivation of more
than 48 hours, and three detainees have been subjected
to sleep deprivation of more than 96 hours; the longest
period of time for which any detainee has been deprived
of sleep by the CIA is 180 hours. Under the CIA’s
guidelines, sleep deprivation could be resumed after a
period of eight hours of uninterrupted sleep, but only if
OMS personnel specifically determined that there are no
medical or psychological contraindications based on the
detainee’s condition at that time. As discussed below,
however, in this memorandum we will evaluate only one
application of up to 180 hours of sleep deprivation.28
Apparent Purposes for
Human Research and
Experimentation on
Detainees
While Physicians for Human Rights does not yet know
the motives of the various actors involved in initiating and
reviewing what appears to be human experimentation on
detainees, including health professionals, interrogators, CIA
officials, and administration lawyers, it appears that the pro-
gram served at least three distinct purposes.
27. Memorandum from Steven G. Bradbury, Principal Deputy Assistant
Attorney General, for John A. Rizzo, Senior Deputy General Counsel, Central
Intelligence Agency (10 May 2005): FN 36. 30.
“To assist in monitoring experience with the detainees, we understand that
there is regular reporting on medical and psychological experience with the
use of these techniques on detainees and that there are special instructions
on documenting experience with sleep deprivation and the waterboard. See
OMS Guidelines at 6-7, 16, 20.”
Web. 01 Jun. 2010 olc_05102005_bradbury46pg.pdf>.
28. Ibid.
Limited Practical Scientific Knowledge
on How to Deploy EITs
The first purpose of experimentation was to determine
how EITs should be deployed. Because the EITs had pre-
viously been considered torture, there was little scientific
evidence prior to Sept. 11, 2001, to guide the deployment of
these techniques on detainees. Questions about their impact
and effectiveness were arising as the program proceeded.
Before the initiation of the EIP, which occurred simultane-
ously with a finding by the Bush administration that the
Geneva Conventions did not apply to Taliban and Al Qaeda
prisoners, experience with the techniques was limited to
studies in two settings: repatriated US prisoners of war who
had been subjected to torture, and the restricted environment
of US military survival-training courses, in which members
of the military and intelligence community participated only
after providing signed consent. While there is a rich litera-
ture regarding the harmful effects of these techniques,29 that
literature appears to have been ignored by the authors of the
legal memos. At the same time, health professionals in OMS
appear to have accepted the unachievable assignment of de-
signing torture-based interrogation techniques that were both
“safe” and “effective.”30
Calibrating Levels of Pain and
Suffering in Accordance with
the OLC Memos
A second purpose of collecting generalizable medical in-
formation appears to have been an attempt to calibrate the
level of pain caused by the techniques in an effort to keep
the pain from crossing the threshold they had defined as
constituting torture. The research information gathered was
used by government lawyers to create a basis for defending
interrogators against potential charges of violating US anti-
torture law.31 OLC lawyers’ attempted inoculation of inter-
rogators against torture charges depended upon an interpre-
tation of the US anti-torture statute that permitted the use of
techniques previously deemed to be illegal.
The OLC interpretation defined torture as an act causing
“long-term” mental harm or physical “pain and suffering”
equal to the pain and suffering inflicted by either organ failure
29. The following publication summarizes the medical literature on the
effects of torture, available prior to Sept. 11, 2001. Leave No Marks:
Enhanced Interrogation Techniques and the Risk of Criminality: Executive
Summary. Cambridge: Physicians for Human Rights, 2007. 01 Jun. 2010.
hrf-summary.pdf >.
30. Shane, Scott. “China Inspired Interrogations at Guantánamo.” New
York Times. New York Times, 2 Jul. 2008. Web. 21 Apr. 2010 nytimes.com/2008/07/02/us/02detain.html?_r=2>.
31. 18 U.S.C. §§ 2340-2340A (2001).
Evidence of Human Subject Research and Experimentation in the “Enhanced” Interrogation Program 11
or death.32 In particular, the authors of the OLC memos
argued that the “enhanced” techniques would not constitute
torture as long as they were applied in a manner that was
“safe.” In a legal context, concepts of “pain,” “suffering,” and
“safety” are questions of fact that relate to the experiences of
the individual interrogators and people being interrogated.
The OLC memo authors argued that if medical professionals
approved the interrogations and monitored the application
of the “enhanced” techniques, the abusive acts would not
constitute torture.33
Under the legal framework established by the OLC legal
memoranda, health professionals thus became responsible
for ensuring that the authorized tactics did not inflict a level
of “severe and long-lasting” mental and physical pain and
suffering that ostensibly, under the lawyers’ rationale, could
be considered “torture.” In order to measure the harm in-
flicted by the tactics, health professionals were required to
collect medical information and make inferences from it that
constituted generalized knowledge: i.e., to engage in human
subject research and experimentation.
Providing a Basis for a “Good Faith”
Legal Defense against Torture Charges
A third purpose for such experimentation appears to have
been to create a basis for legal defenses for individuals en-
gaging in acts that arguably constituted torture. In a circular
application of science to law, and in violation of the ethical
principles of both professions, experimentation relating to
the EITs apparently was used by Bush administration law-
yers in an effort to protect US personnel engaged in the EIP
from potential legal liability for their acts. OLC lawyers
argued that efforts to refine and improve the application of
techniques would provide a potential “good faith” defense
for interrogators against charges of torture.34 They argued
that such a medical monitoring regime would remove the
element of intent to cause harm from the act, which is a nec-
essary requirement for a successful prosecution of a torture
charge under US law, and that “a good faith belief need not
be a reasonable belief; it need only be an honest belief.”35
Thus, research on the detainees became a key part of the
OLC’s legal strategy to demonstrate the lack of intent to
commit torture. The following section from a 2003 memo
32. Memorandum from John C. Yoo, Deputy Assistant Attorney General
for William J. Haynes II, General Counsel of the Dept. of Defense (14 Mar.
2003): 45. Web. 16 Mar. 2010 yoo_army_torture_memo.pdf>.
“In a remarkably circular argument, the OLC lawyers argued that it was
not torture if it was safe. The medical professionals, it seemed, said it was
safe as long as the lawyers assured them it wasn’t torture. The illusion of
safety was based on an exaggerated claim of expertise regarding the effects
of these techniques, as described later in this report.”
33. Memorandum from Scott W. Muller, Office of General Counsel,
Central Intelligence Agency for Jack L. Goldsmith III, Assistant Attorney
General, Office of Legal Counsel, Dept. of Justice (2 Mar. 2004): 7. Web.
16 Mar. 2010 olcremand/2004olc22.pdf> [Hereinafter referred to as “CIA Bullet Points.”]
34. CIA Bullet Points, supra note 12, at 7.
35. Ibid.
written by then Deputy Assistant Attorney General John Yoo
refers specifically to prolonged mental harm:
A defendant could show that he acted in good faith by
taking such steps as surveying professional literature,
consulting with experts, or reviewing evidence gained
from past experience. See, e.g., Ratzlaf, 510 U.S. at
142 n.10 (noting that where the statute required that the
defendant act with the specific intent to violate the law,
the specific intent element “might be negated by, e.g.,
proof that defendant relied in good faith on advice of
counsel.”)... All of these steps would show that he has
drawn on the relevant body of knowledge concerning
the result proscribed by the statute, namely prolonged
mental harm.36 [Emphasis added]
A 2008 DoJ Office of Professional Responsibility (OPR)
report evaluating allegations of professional misconduct by
OLC lawyers Yoo and Jay Bybee37 details how pivotal this
medical supervision was considered to be in circumventing
the “intent” language in the US torture statute. The report
says that then Assistant Attorney General for the Criminal
Division Michael Chertoff told Yoo in 2002 that:
…the more investigation into the physical and mental
consequences of the techniques they did, the more likely
it would be that an interrogator could successfully assert
that he acted in good faith and did not intend to inflict
severe physical or mental pain or suffering.38
Operational Implementation of OLC Guidance
by the CIA
Documenting and understanding the effects of the tech-
niques as part of mounting a “good faith” defense against
torture charges affected how the CIA subsequently imple-
mented the guidance provided by the OLC into a research
program. A document entitled “Legal Principles Applicable
to CIA Detention and Interrogation of Captured Al-Qa’ida
Personnel,” referred to hereafter as the CIA “Bullet Points,”
was prepared in 2003 by the CIA’s general counsel, Scott
Muller.39
36. Memorandum from John C. Yoo, Deputy Assistant Attorney General
for William J. Haynes II, General Counsel of the Dept. of Defense (14 Mar.
2003): 41. Web. 16 Mar. 2010 yoo_army_torture_memo.pdf> (bolding and italics added).
37. The 2008 DoJ OPR Report was the result of OPR’s investigation of
the OLC’s legal memoranda concerning the use of “enhanced interrogation
techniques” on suspected terrorists by the CIA. The initial report concluded
that the drafters of the first OLC memos (Bybee and Yoo) failed to act under
standards of DoJ professional conduct, inter alia, but this conclusion was not
accepted by other DoJ officials.
38. United States. Dept. of Justice. Office of Professional Responsibility.
Investigation into the Office of Legal Counsel’s Memoranda on Issues
Relating to the Central Intelligence Agency’s Use of “Enhanced
Interrogation Techniques” on Suspected Terrorists. Dept. of Justice, 29 July
2009: 59. Web. 15 Mar. 2010 OPRFinalReport090729.pdf>.
39. The CIA Bullet Points were written, according to the OPR, with the
assistance of both CTC (CIA-Counter-Terrorism Center) staff and the OLC for use
by the CIA-OIG in its inquiry of CIA treatment of detainees. Ibid. at 100-101.
12
Experiments in Torture
One of the Bullet Points states:
The interrogation of al-Qa’ida detainees does not con-
stitute torture within the meaning of [the torture statute]
where the interrogators do not have the specific intent to
cause “severe physical or mental pain or suffering.” The
absence of specific intent (i.e., good faith) can be estab-
lished through, among other things, evidence of efforts
to review relevant professional literature, consulting with
experts, reviewing evidence gained from past experience
where available (including experience gained in the
course of U.S. interrogations of detainees), providing
medical and psychological assessments of a detainee
(including the ability of the detainee to withstand inter-
rogation without experiencing severe physical or mental
pain or suffering), providing medical and psychological
personnel on site during the conduct of interrogations,
or conducting legal and policy reviews of the interroga-
tion process (such as the review of reports from the inter-
rogation facilities and visits to those locations). A good
faith belief need not be a reasonable belief; it need only
be an honest belief.40 [Emphasis added.]
The Bullet Points demonstrate that documentation and
review of the impact of the tactics on the detainees was cen-
tral to the CIA program — not for ensuring the well-being or
medical treatment of the detainee, but for displaying “good
faith” as an inoculation for the agency against potential pros-
ecution for torture.
The Bradbury “Combined Techniques” Memo
Relied on Research Data from Detainees
The Bullet Points, based upon Yoo’s March 14, 2003,
memo, were rescinded by the OLC in 2004.41 The Yoo memo
was withdrawn the same year. Even after these initial memo-
randa authorizing torture were rescinded, health profession-
als continued to document the impact of the tactics and the
new knowledge obtained to refine the application of the EITs.
A memorandum from Bradbury to the CIA dated May 10,
2005 (known as “the Combined Techniques Memo”), like
the OLC memoranda that preceded it, explicitly relied on
“medical screening, monitoring, and ongoing evaluations” as
a means of supposedly preventing “serious or lasting physi-
cal or psychological harm.”42
Bradbury’s 2005 opinion was apparently based on infor-
mation collected by the OMS monitoring and research pro-
gram that the Yoo memo had called for to inoculate interro-
gators against torture charges. At that point, OMS had been
40. CIA Bullet Points, supra note 33, at 7 (bolding and italics added).
41. United States. Dept. of Justice. Office of Professional Responsibility.
Investigation into the Office of Legal Counsel’s Memoranda on Issues
Relating to the Central Intelligence Agency’s Use of “Enhanced Interrogation
Techniques” on Suspected Terrorists. Dept. of Justice, 29 July 2009:
116. Web. 15 Mar. 2010 OPRFinalReport090729.pdf>.
42. Memorandum from Steven G. Bradbury, Principal Deputy Assistant
Attorney General for John A. Rizzo, Senior Deputy General Counsel, Central
Intelligence Agency (30 May 2005): 3. Web. 12 Mar. 2010 vo.llnwd.net/o10/clients/aclu/olc_05302005_bradbury.pdf>.
monitoring the EIT program for more than two years.43 Yoo
and Bybee appeared to have relied only on the limited SERE
research available to them when they wrote their opinions,
as well as input from selected experts on the effects of the
techniques. The Bradbury memo,44 however, demonstrates
that the OMS had closely followed the guidance of the CIA
Bullet Points. OMS personnel collected “evidence gained
from past experience where available (including experience
gained in the course of U.S. interrogations of detainees),”
performed medical and psychological assessments, includ-
ing assessing a detainee’s ostensible ability to withstand the
techniques without incurring severe mental pain or suffering,
and methodically amassed other, tactic-specific information
from human subjects.45 The outcomes were used not only
to monitor stress levels in individual detainees undergoing
“enhanced” interrogation but also apparently to perform re-
search with the goal of calibrating interrogation techniques
in the interest of achieving maximum effect with detainees
in the future. In short, the OMS had conducted a program of
human subject research.46
The OLC lawyers apparently, therefore, used human ex-
perimentation both as a justification for torture and as a way
of mitigating legal liability for torture. But in attempting to
legitimize the crime of torture, the lawyers left those who
authorized and performed the research open to the charge of
illegal human experimentation. Even if medical monitoring
was dutifully applied for the intended purpose of mitigating
the infliction of severe physical and psychological harm, the
medical monitoring itself, because it generated research that
was applied to future application of the techniques and as
part of efforts to mitigate legal liability, could be considered
a major breach of professional medical ethics, and could
constitute a crime.
Despite the apparent scrupulousness with which OLC
lawyers approached the issue of the legality of the harsh in-
terrogation techniques, as of 2005, the OLC appears never
to have directly assessed the legality of the monitoring and
research regime itself. If such guidance exists, it has not yet
been publicly disclosed.
43. Central Intelligence Agency, Office of Inspector
General. Counterterrorism Detention and Interrogations, Special Review.
Central Intelligence Agency (2004): 4. Web. 11 Mar. 2010. edu/~nsarchiv/torture_archive/20040507.pdf>.
44 Memorandum from Steven G. Bradbury, Principal Deputy Assistant
Attorney General for John A. Rizzo, Senior Deputy General Counsel, Central
Intelligence Agency (10 May 2005). Web. 11 Mar. 2010 com/cnn/2009/images/05/22/bradbury3.pdf>.
45. CIA Bullet Points, supra note 33, at 7.
46. 45 C.F.R. § 46.102(d) (2005); see also Standards for Privacy of
Individually Identifiable Health Information, 65 Fed. Reg. 82,462, 82,497 (28
Dec. 2000).
Evidence of Human Subject Research and Experimentation in the “Enhanced” Interrogation Program 13
Human Experimentation
and Human Subject
Protections
The Bush administration’s legal framework to protect
CIA interrogators from violating US statutory and treaty
obligations prohibiting torture47 effectively contravened
well-established legal and ethical codes that, had they been
enforced, should have protected prisoners against human
experimentation, and should have prevented the EIP itself
from being initiated in the first place. This strategy therefore
may have effectively employed one criminal act to protect
against liability for another, as illegal and non-consensual
human experimentation can constitute a war crime48 and a
crime against humanity,49 when its perpetration is systematic
and widespread.50
The Nuremberg Code
International and US prohibitions restricting human
experimentation were developed in response to some of
the most serious human rights violations of the 20th cen-
tury. Following the trials of German health professionals at
Nuremberg after World War II, international attention was
focused on the practice of human experimentation inflicted
upon vulnerable human subjects. The fundamental right of
individuals to choose not to be subjected to human experi-
mentation was first codified in the form of the Nuremberg
Code—a direct response to atrocities that took place during
the war. Among other protections, the Nuremberg Code states
that the voluntary informed consent of the human subject in
any experiment is absolutely essential, and that volunteer
subjects should always be at liberty to end their participation
in the experiment. In addition, the Nuremberg Code states
that any experiment should be conducted so as to avoid all
unnecessary physical and mental suffering and injury.
Implementation of the Nuremberg Code was neither im-
mediate nor consistent. Despite the experiences of World
War II, human experimentation on vulnerable populations
without the participants’ consent continued in the United
States into the second half of the 20th century. One of the
most egregious examples was the Tuskegee syphilis ex-
periment, in which poor African-American men in the South
were denied treatment for syphilis so that researchers could
study the natural progression of the untreated disease.
47. 18 U.S.C. §§ 2340-2340A (2001).
48. 18 U.S.C. § 2441 (2006).
49. Harris, Sheldon H. “Medical Experiments on POWs.” Crimes Of War:
¶9. Web. 11 Apr. 2010 experiments.html>.
50. Annas, George J. “Globalized Clinical Trials and Informed Consent.”
The New England Journal of Medicine 360.20 (2009): 2052. Web. 16 Mar.
2010. .
The National Commission
In the wake of public outrage surrounding these non-
consensual experiments, the US Congress created the
National Commission for the Protection of Human
Subjects of Biomedical and Behavioral Research (National
Commission), a group of leading experts in medicine, law,
and ethics, charged with developing guidelines on human
subject research based on ethical principles. The National
Commission made its recommendations in the Belmont
Report, establishing “respect, beneficence and justice” as
principles guiding the ethical conduct of research, includ-
ing the right of informed consent.51 The Belmont Report
established the concept that the ethical conduct of research
required that volunteer subjects be informed about the risks
and benefits, if any, that might accrue to them before they
gave their consent. Additional protections were established
for vulnerable populations, such as prisoners, whose ability
to give truly informed consent may be problematic.
As further protection for human subjects, the National
Commission called for establishment of institutional review
boards within medical and scientific organizations. These
bodies comprise combinations of researchers, ethics experts,
and laypeople that oversee study design based upon ethical
principles.
The Common Rule
These human subject protections became codified in fed-
eral regulations,52 as well as in codes of professional conduct.
Collectively, these regulations are known as the Common
Rule. The Common Rule applies to all federally funded hu-
man subject experimentation, including all research conduct-
ed by the CIA and the DoD.53
By the end of the 20th century, therefore, all people who
were subject to US experimentation were protected by three
interconnected bodies of law: customary international law,
US federal statute, and federal regulations — specifically,
the Common Rule. Although the Nuremberg Code is a code
of conduct and not, by its terms, a treaty binding explicitly
named parties, in the decades following the 1947 articula-
tion of Nuremberg, prohibitions against human experimenta-
tion without the informed consent of the volunteer subjects
have been deemed by international legal scholars to be
part of “customary international law.” This makes human
51. See generally United States. National Commission for the Protection
of Human Subjects of Biomedical and Behavioral Research. The Belmont
Report: Ethical Principles and Guidelines for the Protection of Human
Subjects of Research. Department of Health, Education, and Welfare, 18
Apr. 1979. Web. 27 Apr. 2010 guidance/belmont.htm>.
52. 45 C.F.R. §§ 46.101-46.124 (2005).
53. Strengthened Protections for Human Subjects of Classified Research, 62
Fed. Reg. 26,369 (27 Mar. 1997). Web. 21 Apr. 2010 sgp/clinton/humexp.html>.
14
Experiments in Torture
experimentation without the informed consent of volunteer
subjects one of a small number of acts (including genocide and
torture) that are so heinous that they are universally consid-
ered to be crimes against humanity.
Legal and Ethical Standards Violated
Following Sept. 11, 2001
Under the existing system of human research protections,
experimentation on detainees in US custody was not permit-
ted. If CIA personnel had followed the Common Rule, pro-
spective review by an IRB would have protected the rights
and welfare of the targeted detainee subjects by forbidding
the proposed research on legal, ethical, scientific, and moral
grounds. Other violations may include:
Violation of the Geneva Conventions:
*
The four Geneva Conventions, treaties completed in 1949,
and to which the United States traditionally has adhered, as
well as their additional protocols, form the core elements of
the law of armed combat. On February 7, 2002, President
Bush issued an executive order finding that “Taliban detain-
ees are unlawful combatants and, therefore, do not qualify
as prisoners of war under Article 4 of Geneva.” While this
conclusion is generally viewed as legally accurate given the
Third Geneva Convention’s narrow definition of POWs, the
executive order went on to state that “Geneva does not apply
to our conflict with al-Qaida . . . .”54
As the Supreme Court determined in Hamdan v.
Rumsfeld,55 this assessment is incorrect: Whereas Taliban
and al-Qaida prisoners did not have all the specific POW
protections provided under the Third Geneva Convention,
Common Article 3 provisions did continue to apply.56
Common Article 3 is a provision common to all four
Geneva Conventions. Among other things, it proscribes
“cruel treatment and torture” and “humiliating and degrad-
ing treatment.” The appropriate enforcement of Common
Article 3 would have precluded any human subject research
and experimentation on detainees unrelated to their hospital
treatment or their medical interest.57 Beyond the applicability
54. “In a February 2002 memorandum, President Bush issued a formal
decision that Common Article Three did not apply to the armed conflict
with Al Qaeda.” United States. Dept. of Justice. Office of Professional
Responsibility. Investigation into the Office of Legal Counsel’s Memoranda
on Issues Relating to the Central Intelligence Agency’s Use of “Enhanced
Interrogation Techniques” on Suspected Terrorists. Dept. of Justice, 29 July
2009: 26. Web. 15 Mar. 2010 OPRFinalReport090729.pdf>.
55. Hamdan v. Rumsfeld, 548 U.S. 557 (2006).
56. Id. at 562.
57. See Geneva Convention for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field art. 3, 12 Aug. 1949, 6 U.S.T.
3114, 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition
of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea art. 3,
12 Aug. 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Geneva Convention Relative
to the Protection of Civilian Persons in Time of War art. 3, 12 Aug. 1949, 6
U.S.T. 3516, 75 U.N.T.S. 287; Geneva Convention Relative to the Treatment of
Prisoners of War art. 3, 12 Aug. 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135.
of Common Article 3 it has not been clearly determined what
other provisions of the Geneva Conventions apply to detain-
ees deemed “unlawful combatants,” yet it is important to
note that all four Geneva Conventions explicitly state that
“biological experiments” are grave breaches of the respective
conventions — and apply to all detainees, whether POWs or
otherwise.58
Contravention of the Nuremberg Code:
*
As discussed above, well prior to Sept. 11, 2001, there
was widespread international consensus that the Nuremberg
Code prohibiting human subject experimentation without
consent had become customary international law binding
upon all countries. In 2003, however, a CIA legal interpre-
tation indicated that the US government’s position was that
“customary international law imposes no obligations regard-
ing the treatment of al-Qaida detainees beyond that which the
Convention [Against Torture], as interpreted and understood
by the United States in its reservations, understandings, and
declarations, imposes.”59 It is not clear whether those con-
ducting the US experimentation program believed that they
were not bound by the Nuremberg Code, or simply ignored
its requirements. In any case, the experimental regime clearly
violated the code as well as applicable US laws and regula-
tions that remained in place.
Disregarding and Amending the US War Crimes Act:
*
Enacted by a Republican Congress in 1996, the Jones War
Crimes Act for the first time imposed US criminal penalties
for “grave breaches” of any of the Geneva Conventions. In
1997, the legislation was expanded, at the request of the
Departments of State and Defense, to encompass a broader
range of war crimes, including violations of Common Article
3. As previously noted, all four Geneva Conventions list
“biological experiments” as grave breaches, which may have
created liability for human experimentation on detainees
even under the original act. Once Common Article 3 was in-
cluded as a war crime in the amended WCA, its prohibitions
on “cruel treatment and torture” and “degrading treatment”
would likely create criminal liability for experimentation on
detainees. Due to the Bush administration’s erroneous con-
clusion that it could detain “war on terror” prisoners outside
of Geneva protections, it appears to have concluded before
2006 that interrogators were not liable to criminal prosecu-
tion under the War Crimes Act.60
Subsequent to the program of experimentation discussed
in this report, changes were made to the War Crimes Act
58. Geneva Convention for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field art. 50(4), 12 Aug. 1949, 6
U.S.T. 3114, 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the
Condition of Wounded, Sick and Shipwrecked Members of Armed Forces
at Sea art. 51(D), 12 Aug. 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Geneva
Convention Relative to the Protection of Civilian Persons in Time of War art.
130(D), 12 Aug. 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287; Geneva Convention
Relative to the Treatment of Prisoners of War art. 147(1), 12 Aug. 1949, 6
U.S.T. 3316, 75 U.N.T.S. 135.
59. Bullet Points, supra note 33, at 6.
60. Bullet Points, supra note 33, at 7.
Evidence of Human Subject Research and Experimentation in the “Enhanced” Interrogation Program 15
which, despite occurring after the experimentation, are still
relevant to the legality of the program because of their ret-
roactivity. Following the Supreme Court’s 2006 Hamdan v.
Rumsfeld decision, which clearly established that enemy
combatants were protected by Common Article 3, the Bush
administration quickly sought again to limit potential legal
exposure of its personnel by amending the WCA. The admin-
istration expressed concerns that it was unclear under the act
exactly which forms of detainee treatment or interrogation
constituted punishable offenses. As part of the 2006 Military
Commissions Act, the WCA was amended to delineate the
specific violations of Common Article 3 that would be pun-
ishable. Among those violations is “performing biological
experiments.” The amended language prohibits:
The act of a person who subjects, or conspires or at-
tempts to subject, one or more persons within his custody
or physical control to biological experiments without a
legitimate medical or dental purpose and in so doing en-
dangers the body or health of such person or persons.61
While this language maintains the existing prohibition on
biological experiments contained in the previous version of
the WCA, the effect of this amendment appears to weaken
the prohibition by moving away from the type of strict lan-
guage found in the Geneva Conventions (Third Geneva
Convention, Article 13), which states:
No prisoner of war may be subjected to physical mutila-
tion or to medical or scientific experiments of any kind
which are not justified by the medical, dental, or hospital
treatment of the prisoner concerned and carried out in his
interest.62
The new language of the WCA added two qualifications
that appear to have lowered the bar on biological experimen-
tation on prisoners. That language requires that the experi-
ment have a “legitimate” purpose, but does not require that
it be carried out in the interest of the subject. It also adds the
requirement that the experiment not “endanger” the subject,
which appears to raise the threshold for what will be consid-
ered illegal biological experimentation.
Neither the source of this language change nor the reason
for it is clear. It is possible that the language was changed in
an attempt to protect those involved in experiments before
2006. Because changes to the WCA were made retroactive to
1997, the new weaker language applied to the EIP discussed
in this report, and these provisions became the standard for
determining if a grave breach occurred.
Another component of the amended WCA that is relevant
to the experimentation program provides immunity for mili-
tary and intelligence officials from criminal prosecution for
acts after Sept. 11, 2001, that were part of “authorized inter-
rogations.” While this language seems directed at those who
61. 18 U.S.C. § 2441(d)(1)(C) (2006).
62. Convention (III) relative to the Treatment of Prisoners of War, Article 13.
Geneva, 12 August 1949. Web. 01 Jun 2010. 08d9b287a42141256739003e63bb/6fef854a3517b75ac125641e004a9e68>.
may have engaged in torture during interrogations, it would
also apply to the grave breach of biological experimentation
that is listed as a war crime.
Regardless of whether the rationale for legislative amend-
ments undertaken by the Bush administration is ever fully
known, it is important to note that human subject protec-
tions have not been restored to their previous state. Despite
President Obama’s Jan. 22, 2009, executive order barring the
use of almost all “enhanced interrogation techniques,” Bush
administration revisions to the WCA remain in effect. As
long as weakened statutory language exists that may permit
experimentation on detainees in US custody, the risk remains
that current and future detainees could be subjected to seri-
ous violations of human rights.
Conclusions and
Recommendations
This report identifies evidence of unethical and illegal hu-
man subject experimentation conducted by US health profes-
sionals on detainees. Human experimentation, in the form of
systematic medical monitoring and subsequent transforma-
tion of the data obtained into generalizable knowledge, ap-
pears to have been used to justify practices previously recog-
nized as torture, to inform specific “enhanced” interrogation
practices, and to serve as a part of the US government’s legal
defense against criminal liability for torture.
It is evident from this analysis that the premise and prac-
tice of what was erroneously claimed to be “safe, legal and
effective” torture depended on what appears to be research
and experimentation on detainees, which could rise to the
level of war crimes and crimes against humanity. This pro-
gram engaged in violations of the detainees’ health and hu-
man rights that are explicitly prohibited by international hu-
man rights agreements to which the United States is party —
including the United Nations Conventions Against Torture,63
the International Covenant on Civil and Political Rights,64
and the Universal Declaration of Human Rights.65
The claim that health professionals served to ensure the safety
of the detainees through the systematic monitoring of intentionally
63. Convention Against Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment. G.A. Res. 39/46. U.N. GAOR. 39th Sess. Supp. No.
51. 1984:197. Entered into force June 26, 1987. U.N. Doc. A/Res/39/46. Web.
17 May 2010. .
64. International Covenant on Civil and Political Rights, opened for signature
December 16, 1966. Article 7. 999 U.N.T.S. 171. Entered into force March 23,
1976. Web. 17 May 2010. .
65. Article 5 of UDHR states: “No one shall be subjected to torture or to
cruel, inhuman or degrading treatment or punishment.” Universal Declaration
of Human Rights, G.A. res. 217A (III), U.N. Doc A/810, at 71. (1948). Web.
17 May 2010. .
16
Experiments in Torture
harmful practices is not only inherently contradictory but also a
perversion of centuries of health professional ethics.66
Those who authorized, designed, implemented, and su-
pervised this regime of human experimentation — whether
health professionals, uniformed personnel, or civilian na-
tional security officials — must be held to account if further
in-depth investigation confirms that they have violated ethi-
cal and legal strictures on professional behavior in ways that
previously have been found to constitute war crimes and
crimes against humanity by international tribunals.
Physicians for Human Rights calls on the White House
and Congress to investigate thoroughly the full scope of the
human experimentation designed and implemented in the
post-Sept. 11 period. The War Crimes Act must be amended
to restore the previous language protecting detainees from
being subjects of experimentation. Any victims of research
and experimentation perpetrated as part of the CIA’s “en-
hanced” interrogation program who may be found through
further investigations must be offered compensation and
health care services to address ongoing health effects related
to the experimentation, as well as a formal apology by the
United States.
Recommendations
Based on the findings of this investigation, the United
States should take the following actions:
President Obama must order the attorney general to
1.
undertake an immediate criminal investigation of alleged
illegal human experimentation and research on detainees
conducted by the CIA and other government agencies
following the attacks on Sept. 11, 2001.
The secretary of the Department of Health and Human
2.
Services must instruct the Office for Human Research
Protections (OHRP) to begin an investigation of
alleged violations of the Common Rule by the CIA and
other government agencies as part of the “enhanced”
interrogation program.
Congress must amend the War Crimes Act to eliminate
3.
changes made to the Act in 2006 which weaken the
prohibition on biological experimentation on detainees,














66. See appendix 2.
and ensure that the War Crimes Act definition of the
grave breach of biological experimentation is consistent
with the definition of that crime under the Geneva
Conventions.
Congress should convene a joint select committee com-
4.
prising members of the House and Senate committees re-
sponsible for oversight on intelligence, military, judiciary
and health and human services matters to conduct a full
investigation of alleged human research and experimen-
tation activities on detainees in US custody.
President Obama should issue an executive order
5.
immediately suspending any federally funded human
subject research currently occurring in secret —
regardless of whether or not it involves detainees.
The Department of Justice’s Office of Professional
6.
Responsibility should commence an investigation into
alleged professional misconduct by OLC lawyers related
to violations of domestic and international law and
regulations governing prohibitions on human subject
experimentation and research on detainees.
President Obama should appoint a presidential task force
7.
to restore the integrity of the US regime of protections
for human research subjects. This task force, compris-
ing current and former officials from the Department
of Health and Human Services, the Food and Drug
Administration, the National Institutes of Health, the hu-
man rights community, and leading health professional
associations, should review current human subject pro-
tections for detainees, and recommend changes to ensure
that the human rights of those in US custody are upheld.
States should adopt policies specifically prohibiting
8.
participation in torture and improper treatment of
prisoners by health care professionals. Such participation
is considered professional misconduct and is grounds
for loss of professional licensure. Proposed legislation in
New York State provides a model for such policy.
The United Nations special rapporteur on torture should
9.
undertake an investigation of allegations that the United
States engaged in gross violations of international human
rights law by engaging in human subject research and
experimentation on detainees in its custody.
Evidence of Human Subject Research and Experimentation in the “Enhanced” Interrogation Program 17
Glossary of Abbreviations and Terms
APA: . . American Psychological Association
CIA: . . . Central Intelligence Agency
CTC: . . CIA Counter-Terrorism Center
DoD: . . Department of Defense
DoJ: . . . Department of Justice
EI: . . . . Enhanced interrogation, the Bush administration’s euphemism for its program of physical
and psychological torture
EIT: . . . Enhanced interrogation techniques. These include isolation, sensory deprivation,
sensory bombardment, stress positions and waterboarding, among many others
EIP: . . . Enhanced interrogation program
Experimentation: . . . To carry out experiments or try out a new procedure, idea, or activity
HHS: . . Department of Health and Human Services
IRB: . . . Institutional Review Board
JPRA: . . Joint Personnel Recovery Agency
MCA: . . 2006 Military Commissions Act
OGC: . . CIA Office of General Counsel
OHRP: . HHS Office for Human Research Protections
OIG: . . . CIA Office of Inspector General
OLC: . . DoJ Office of Legal Counsel
OMS: . . CIA Office of Medical Services
OPR: . . DoJ Office of Professional Responsibility
OTS: . . CIA Office of Technical Services
SERE: . “Survival, Evasion, Resistance and Escape.” A survival training program for US soldiers
at high risk for capture and torture by enemies. Also the setting for clinical research done
on US soldiers with their informed consent
WCA: . . War Crimes Act
18
Experiments in Torture
Appendix 1
The Nature of Experimentation:
Health Professional Monitoring of the
“Enhanced” Interrogation Program
The involvement of health professionals in a torture
program was clearly illegal prior to the issuance of legal
memoranda by the Department of Justice’s Office of Legal
Counsel (OLC). It was also unethical by standards of the
medical profession. The task of keeping subjects of the “en-
hanced” interrogation program “safe” was also illegitimate
in that it placed health professionals in the role of calibrating
pain and injury in a non-therapeutic act. But, beyond that,
a program in which health professionals were tasked with
keeping subjects of “enhanced” interrogation safe was by
its very nature experimental, in that it was based on untested
ideas or techniques not yet established or finalized.
One example of the lack of prior knowledge and estab-
lished procedure for the “safe” administration of the so-
called “enhanced” interrogation techniques (EITs), in this
case waterboarding, is found in the 2004 CIA OIG (Office
of Inspector General) Report:
In retrospect based on the OLC extracts of the OTS
(Office of Technical Services) report, OMS (Office of
Medical Services) contends that the reported sophistica-
tion of the preliminary EIT review was exaggerated, at
least as it related to the waterboard, and that the power
of this EIT was appreciably overstated in the report.
Furthermore, OMS contends that the expertise of the
SERE (Survival, Evasion, Resistance, Escape) psycholo-
gist/interrogators on the waterboard was probably mis-
represented at the time, as the SERE waterboard experi-
ence is so different from the subsequent Agency usage
as to make it almost irrelevant. Consequently, according
to OMS, there was no a priori reason to believe that ap-
plying the waterboard with the frequency and intensity
with which it was used by the psychologist/interrogators
was either efficacious or medically safe.1
At the time when the program was being designed and
approved, there was no established or accepted way to keep
an interrogation using EI techniques safe. Any medical
monitoring by a health professional to keep the subject safe
was therefore by its very nature experimental.
The Belmont Report2 acknowledged that there is a gray
zone in medical certainty between accepted medical prac-
tice and experimental practice. In distinguishing between
accepted practice and research, the National Commission
1. Central Intelligence Agency, Office of Inspector General. Counter-
terrorism Detention and Interrogations, Special Review. Central Intelligence
Agency (2004): 22. Web. 11 Mar. 2010. torture_archive/20040507.pdf>.
2. See footnote 51, main text.
for the Protection of Human Subjects of Biomedical and
Behavioral Research examined two factors:
the level of risk to the subject, and
1.
the intent of the physician.
2.
3
Schuchardt interprets the Belmont Report as follows:
The most important difference between “research” and
“practice” is the degree of risk each procedure entails.
Research, by its very nature, involves procedures that
are new and not well understood. The risk to the human
subject is that the procedure will be unnecessarily ap-
plied, performed in a negligent manner, or cause anoma-
lous injuries due to the ignorance about the procedure.
Practice, on the other hand, involves therapies that are
standard or performed frequently because their risks
are known and the procedure is expected to benefit the
patient.4
In addressing physician intent as it relates to the distinction
between research and practice, Schuchardt comments:
Physicians engage in practice when they seek to benefit
the patient and patient alone through the best-known
treatment. On the other hand, physicians engage in re-
search whenever they intend to develop new knowledge
through their dealings with the patient. The intent of the
physician is important because it determines whether the
physician has a conflict of interest between the patient
and the research.5
This conflict is important to note in this context, because
the primary goal of health professionals working in US
interrogation programs was supporting the interrogation
process. Patient care and treatment duties were made a sec-
ondary priority to the operational objective of implement-
ing the techniques in a manner that limited legal liability for
torture.
In reviewing the proposed use of experimental drugs
to protect US troops from biological weapons, Annas and
Grodin have argued, however, that it is “the investigational
nature of the intervention, not the intent of the physician or
researcher, that determines whether or not an intervention is
research or therapy,” and they note that “the absence … of
effective alternatives does not convert an existing investiga-
tional intervention into a therapeutic one.”6
The Belmont Report does note that a procedure does
3. Boyce, Ross M. “Waiver of Consent: The Use of Pyridostigmine Bromide
during the Persian Gulf War.” Journal of Military Ethics 8.1 (2009): 8. Print.
4. Schuchardt, Elliott J. Walking a Thin Line: Distinguishing Between
Research and Medical Practice during Operation Desert Storm. 26 Colum.
J.L. & Soc. Probs. 77 (1992): 6. Print.
5. Schuchardt, Elliott J. Walking a Thin Line: Distinguishing Between
Research and Medical Practice during Operation Desert Storm. 26 Colum.
J.L. & Soc. Probs. 77 (1992): 6. Print.
6. Annas, George J., and Michael A. Grodin. “‘Treating the Troops’:
Commentary.” The Hastings Center Report 21.2 (1991): 25. Print.