December 13, 2012
Examining the role of lawyers and doctors in detainee torture in U.S. Military Prisons:
|Professor Michael Grodin and Suzanne Lachelier|
The BU International Law Society, a student organization, partnered with Physicians for Human Rights (PHR) and Psychologists for Social Responsibility to host a film screening of “Doctors of the Dark Side” followed by a panel discussion. The audience of BU Law students and professors, medical students, and health care professionals was quick to join the discussion with the panel members—U.S. Navy Commander Suzanne Lachelier (’92); BU Professors of Health Law, Bioethics and Human Rights Dr. Michael Grodin and George Annas; and Director of PHR’s Anti-Torture Program Kristine Huskey. The film and discussion explored the post-9/11 development of lawyers covering for doctors supervising detainee torture.
A handout entitled “Take Action, Massachusetts!” was among the literature in circulation at the event. This handout provided online links to sign two petitions—the first to support a Massachusetts bill that would penalize health care professionals who assist in torture, and the second to annul the 2005 Report of the Presidential Task Force on Psychological Ethics and National Security for its support of doctor participation in detainee interrogation. Before the film even began, these petitions sent the clear message that doctors compromise their professional commitment to patient welfare when they supervise interrogations involving physical and mental duress. As Huskey later described, “We think they’re there to stop the pain, but they calibrate the pain to the individual . . . just short of organ failure.”
“Doctors of the Dark Side” gave a snapshot of detainee treatment from Abu Ghraib prison to Guantanamo Bay Naval Base. The film focused on enhanced interrogation techniques, the euphemism for how military interrogators sought information from suspected al-Qaeda operatives. For example, President Bush’s Office of Legal Counsel (OLC) protocols required supervision for simulated drowning known as waterboarding by doctors who recorded the amount of water used, how much ran off versus how much was inhaled, and how much was expelled. In practice, medical supervision emboldened interrogators to push closer to organ failure because the doctor could employ an emergency tracheotomy kit.
OLC manipulation of the legal definition of torture from the U.S. Torture Convention Implementation Act of 1994 enabled these enhanced interrogation techniques. The narrowed definition only proscribed “pain” associated with “death, organ failure, or serious impairment of body functions.” Then doctors with additional legal immunity provided a safety net for interrogators. During the panel discussion, Annas emphasized, “if doctors stood up and resisted, that would have been the end of it.” But he also acknowledged that professional licensing boards are ineffective to sanction members even if the boards have official policies against doctor participation—“they don’t have jurisdiction at the state level over national security issues.”
Commander Lachelier works to unearth details of detainee treatment at Guantanamo in her role as defense counsel. The Classified Information Procedures Act blocks her access to medical records before 2006, and suppression hearings are unavailable to expand her inadequate access during discovery before trial. Doctors have limited familiarity with records because they rotate out of supervision every six months to prevent building a rapport with detainees who are identified only by serial numbers. Defending in this context is “a minefield for lawyers, a very dangerous practice.”
She knows what would improve doctor accountability—declassifying medical records, providing an anonymous reporting hotline for medical abuse, and establishing independent commands for doctors and interrogators instead of blending their command under Joint Task Force Guantanamo. But a Pew Research Center national survey in 2009 found that 49 percent of the U.S. public does not want torture off the table. For that half, “Doctors of the Dark Side” wants to change their minds.