Prisoners of War:

The Role of Psychologists and

Psychiatrists in Interrogation and Torture

Donald H.J. Hermann

Professor of Law and Philosophy

DePaul University

The question of the participation of physicians, including psychiatrists, and psychologists taking part in torture on its face seems simple. The relevant medical and professional associations – the American Medical Association, the American Psychiatric Association, and the American Psychological Association – all have adopted categorical prohibitions against their member’s participation in torture. The AMA principles state that “physicians must oppose and not participate in torture for any reason.” The Madrid Declaration on Ethical Standards for Psychiatric Practice provides: “Psychiatrists shall not take part in any process of mental or physical torture, even when authorities attempt to force their involvement in such acts.” The American Psychological Association Council of Representatives has declared: “There are no exceptional circumstances whatsoever induced by a state of war or threat of war, internal political instability or any other public emergency, that may be invoked as a justification for torture, including the invocation of laws, regulations, or orders.”

These categorical prohibitions would seem to end this discussion on the participation of health care professionals in torture. These prohibitions would seem to bar a contextual approach that could, for instance, differentiate participation in torture depending on the purpose for which the practice is being employed. For instance, historians of torture have distinguished torture applied as punishment from torture employed to compel confessions, and torture used in interrogation particularly in war or an armed conflict. The use of torture as punishment came under scrutiny with the Enlightenment. The United States Constitution directly confronted the issue of torture as punishment particularly with the Eight Amendment prohibition on “cruel and unusual punishment.” The imposition of death, however, generally has not itself been considered torture. For example, the development of the guillotine in France was considered a merciful device for carrying out a death sentence without torture. The legal historian, John Langbein, chronicled the elimination of torture in English criminal prosecutions suggesting this was a result of the development of juries as evaluators of evidence with such standandles as “proof beyond a reasonable doubt.” The role of torture in interrogation, however, has continued to be considered by some as legitimate on the basis that such interrogation may be necessary to protect the public or to maintain the security of the state. In the context of interrogation, the proscribed methods of torture are often viewed as including the most abusive and intrusive measurers, while legitimate interrogation methods of eliciting information are often viewed as including physical and psychological techniques for eliciting information that may be viewed as harsh or aggressive, but thought to be necessary and effective in obtaining information about threats to the public and the state.

The prohibition of torture both in ethical codes and in laws and treaties appears clear and unequivocal. However, the definition of torture or a criteria for determination of what practices are included in torture is not so clear. There is a tendency to use the word torture to condemn any practice that is disapproved. The opposite approach is noted by Edward Peters in his monograph Torture where he wrote: “The term torture now exists almost wholly in a generalized vocabulary. And because it does, it is easy for torturers to deny that what they do is torture.”

Michael Kerrigan in his book The Instruments of Torture set out the traditional narrow understanding of torture as imposition of physical abuse and infliction of bodily harm when he identified a range of torture techniques including stretching on the rack, suspension of the body, applying pressure such as thumb screws, burning or boiling, water torture including drowning or forced drinking, using animals such as bees to sting victims smeared with honey, beatings, cuttings, and piercings. By contrast, a broad understanding of torture was adopted by the United Nation’s Declaration Against Torture which states: “Torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for such purpose as obtaining from him or a third person information or confession, punishing him for an act he has committed, or intimidating him or other persons.” This broad range of understanding of torture established by the UN Declarations Against Torture, is important for its influence on the definitions of torture adopted by the various medical and professional associations in their ethical codes. For example, the American Medical Association’s principles of medical ethics states that “[t]orture refers to the deliberate, systematic, or wanton administration of cruel, inhuman, degrading treatments or punishments during imprisonment or detainment.” More recently, the American Psychological Association Council of Representative adopted a resolution which endorsed the definition of torture included in the United Nations Declaration and Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment which will be discussed later in this paper.

The definitional disputes about the meaning of “torture,” or a determination of what practices are included within the definition of torture, are of particular significance in the current debate about the appropriateness of a range of practices directed at detainees and prisoners of war who have been held by the United States in prisons at Abu Ghraid in Iraq, Bagram in Afghanistan, and Guantanamo, the United States base in Cuba. A principal issue raised by the U.S. treatment of detainees in these facilities is what interrogation practices constitute torture. The question is whether there are interrogation practices that may be aggressive, intimidating or coercive that fall outside the concept of torture. From ancient times, torture has been a technique of interrogation. The Roman jurist Ulpian viewed physical suffering or torture as an appropriate device used as a technique of interrogation; he wrote that: “By torture, we are to understand the torment and suffering of the body to elicit the truth.”

An expansive understanding of torture as linked to interrogation was adopted by the World Medical Association’s Guidelines for Medical Doctors Concerning Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in Retention or Detention and Imprisonment which were directed at limiting health care professional’s participation in interrogation. These Guidelines implicitly include a broad range of interrogation techniques in their concept of torture which is defined as “the deliberate, systematic or wanton infliction of physical or mental suffering by one or more persons acting alone or on the order of any authority, to force another person to yield information, to make a confession, ,or for any other reason.” A relevant question to be explored as one considers the experience of the United States in dealing with interrogation of imprisoned combatants and prisoners of war is whether there are lawful coercive interrogation practices consistent with the ethical practices of physicians, including psychiatrists, and psychologists because such practices fall outside the prohibitions on torture. Are there harsh or aggressive methods that fall short of torture which are permitted practices of interrogation?

The American public’s exposure to photographs of mistreated detainees held at Abu Ghraid first broadcast on CBS 60 Minutes on April 28, 2004, provided not only visual evidence of abusive practices but quickly was equated with the interrogation techniques used by U.S. authorities to elicit information from imprisoned combatants and prisoners of war. For example, Craig Whitney of the New York times wrote: “[These photographs show] American soldiers, male and female, grinning and pointing at the genitals of naked, frightened Iraqi prisoners; an Iraqi-man unclothed and leashed like a dog, groveling on the floor in front of a female guard, a prisoner standing on a box with a sandbag over his head and wires attached to his body beneath a poncho. These were not enemy propaganda pictures; these showed real atrocities actually inflicted by Americans.” Ultimately, only the soldiers who were directly associated with this physical and mental torture were held responsible for the abuses revealed in those photographs. Nevertheless, an Independent Panel investigating Abu Ghraid abuses chaired by James Schlesinger, a former Secretary of Defense, concluded that these abuses were in part a result of Department of Justice opinions, Presidential declarations, and the Department of Defense policies. It is these opinions, declarations, and policies that currently raise the issue of what constitutes torture on the one hand; and what, on the other hand, may be characterized as permitted interrogation techniques. One of the fundamental propositions held by those who would permit health care professions to assist military or investigative authorities in questioning prisoners or detainees is that: torture may not be used as a method of interrogation, but interrogation per se is not torture. A related issue is: that while physicians, including psychiatrists, and psychologists may not take part in or conceal evidence of torture, they can play a role in interrogation which employs methods that fall short of torture.

United States policy regarding treatment of detainees and prisoners, following the 9-11 attack in 2001 on the United States, was to maintain that the Geneva Convention Relative to the Treatment of Prisoners of War did not apply to individuals captured in Afghanistan. Since al-Qaeda was not a signatory to international conventions, its personnel was not protected, and because al-Qaeda personnel controlled Afghanistan, the country could not be considered a party to treaties so that Taliban detainees were not protected. In February 2002, President Bush signed an executive order declaring that the Geneva Convention did not apply to al-Qaeda or Taliban detainees; nevertheless, the United States would “continue to be a strong supporter of Geneva and its principles [and] shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity in a manner consistent with the principles of Geneva.” Obviously, this statement is not a categorical prohibition on otherwise prohibited measures directed against detainees and prisoners since the statement allows exception to the prohibitions provided by the Conventions when dictated by military necessary. This presidential order raises questions about the basis of presidential power to authorize torture. Second, the presidential order raises the question of what methods of interrogation are permitted when torture is not authorized nor permitted as a matter of military necessity.

In August 2002, a Justice Department Memorandum authored by Assistant Attorney General Jay S. Bybee (incorporated into a Department of Defense memorandum of March 2003) declared that the President had inherent constitutional authority to manage any military action and that any prohibition against torture must be construed as inapplicable to interrogations undertaken pursuant to the authority of the Commander-in-Chief. Moreover, the argument was made in the memorandum that any effort by the Congress to regulate the interrogation of unlawful combatants would violate the Constitution’s sole vesting of the Commander-in-Chief’s authority in the President.

Both Justice and Defense Departments’ memoranda adopted narrow definitions of torture and prohibited methods of interrogation. The Justice Department memorandum maintained that to be torture, treatment of a prisoner must inflict more than moderate or fleeting pain; torture “must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”

The March 2003 Defense Department memorandum emphasized that to constitute psychological torture, any method must result in prolonged and profound disruption of the personality. According to this view: “in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm cause by or resulting from (1) the intentional infliction or threatened infliction of severe physical pain or suffering, (2) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (3) the threat of imminent death; or (4) the threat that another person will imminently by subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.”

Neither the Justice Department’s nor Defense Department’s memoranda distinguished between coercive interrogation involvement of medical as opposed to non-medical personnel or experts. This is important since the memoranda appears to authorize use of drugs that do not profoundly disrupt the personality. Nor do the memoranda address the involvement of medical personnel in assisting in the development of interrogation techniques, training interrogation personnel, or evaluating prisoners as candidates for particular methods of interrogation.

On December 2, 2002, Secretary of Defense Donald Rumsfeld authorized a number of “Counter Resistant Techniques” that could be used during interrogations at Guantanamo Bay. These permissible methods of interrogation included: yelling at a detainee (but not directly in his ear or to the level that would cause physical pain or hearing problems); use of stress positions (like standing) for a maximum of five hours; use of falsified documents or reports; use of isolation for up to thirty-days; deprivation of light and auditory stimuli; placement of a hood over a prisoner’s head during questioning (so long as the hood does not restrict breathing); use of twenty hour interrogation; removal of all comfort items (including religious items); denying the detainee hot rations; removal of clothing; forced grooming (shaving of facial hair); and using detainees individual phobias (such as fear of dogs) to induce stress.

In January 2003, Secretary Rumsfeld rescinded his general authorization of these techniques for future interrogations; instead, he now required a specific request warranted by the individual case in order to employ a specific technique. Secretary Rumsfeld directed that “in all interrogations, you should continue the humane treatment of detainees, regardless of the type of interrogation technique employed.”

One April 16, 2003, Secretary Donald Rumsfeld issued a memorandum to the Commander of the U. S. Southern Command identifying counter-resistance techniques (or interrogation) methods authorized for use on prisoners held at Guantanamo Bay, Cuba. These techniques ranged from direct or straight forward questioning to a broad range of interrogation methods using various forms of psychological manipulation, including:

providing a reward or removing an incentive
playing on the love a detainee has for an individual or group
significantly increasing the fear level in a detainee
boosting the ego of a detainee
attacking or insulting the ego of a detainee
invoking the futility of a detainee
convincing the detainee that the interrogator knows the answer to questions asked the detainee
convincing the detainee that the interrogator has mistaken the detainee for someone else
continuously repeating the same question to the detainee
convincing the detainee that the interrogator has damning information about or an inaccurate file on the detainee
employing a team consisting of a friendly and a harsh interrogator [the Mutt and Joff technique]
questioning in rapid succession without allowing the detainee to answer
staring at the detainee to encourage discomfort
removing the detainee from the standard interrogation setting and placing him in a setting that may be less comfortable
changing the diet of a detainee
altering the environment to create moderate discomfort by adjusting the temperature or introducing an unpleasant smell
adjusting the sleeping times of a detainee, for example reversing sleep cycle from night to day
convincing a detainee that individuals from a country other than the United States are interrogating him
isolating a detainee from other detainees

These guidelines called for participation of medical personnel. At a minimum the guidelines involved health care professionals in ongoing medical and psychological review. It should also be noted that the guidelines recognized that the use of the listed techniques might be inconsistent with the requirements of the Geneva Conventions. However, the Administration’s position remained that the Geneva Conventions were inapplicable.

Following the public outrage at the publication of the Abu Ghraid photograph in late 2004, the Justice Department rescinded the August 2002 [Bybee] memorandum “Standard of Conduct for Interrogation” which had provided the foundational basis for the authorization of the various interrogation techniques that were judged to fall short of prohibited acts of torture, although not necessarily permitted by the Geneva Convention for treatment of prisoners of war. In June 2004, the CIA suspended its use of enhanced interrogation techniques including feigned drowning or refusal of pain medication for injuries as a result of the Justice Department review of interrogation process. The rescinding and modifying of Defense Department policy on permissible interrogation techniques followed legal, ethical, and practical objections to the authorized techniques of interrogation. It should be noted that objections to the use of harsh interrogation techniques by military personnel pre-dated the publication of the Abu Ghraid photographs. For instance, some personnel including health care professionals involved in or observing interrogations reported to their superiors that they found some of these techniques to be repulsive and illegal.

On December 30, 2004, the Office of Legal Counsel of the Department of Justice issued a replacement policy statement for the August 2002 memorandum authored by Jay Bybee. The new memorandum declared: “Torture is abhorrent both to American law and values and to international norms.” The Document rescinded the earlier memorandum’s equation of torture with severe pain or organ failure. Nevertheless, the new memorandum seemly affirmed a wide ambit of psychological methods of interrogation. However, the memorandum rejected justification for torture done either for national security or on the grounds that an individual could avoid torture by cooperation with interrogators. The new memorandum also eliminated the claim of the commander-in-chief’s authorization to ignore laws limiting torture including the Geneva Conventions.

At the end of 2005, the United States Congress enacted the Detainee Treatment Act of 2005 which provides in part: No individual in custody or under the physical control of the United States government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.” The statue does not use the word “torture” in setting out is prohibition, but instead, the statute uses the terms “cruel, inhuman, or degrading treatment or punishment” which the statute equates with conduct prohibited by the Fifth, Eighth, and Fourteenth Amendment to the Constitution of the United States and with the terms defined in the United States assent to the 1984 United Nations Convention Against Torture and other Forms of Cruel, Inhuman or Degrading Treatment or Punishment.

In addition to prohibiting torture, the Detainee Treatment Act of 2005 sets out standards for the interrogation of detainees by military authorities. The act provides that no person in the custody of or control of a Defense Department facility “shall be subject to any treatment or technique of interrogation not authorized by or listed in the United States Army Field Manual on Intelligence Interrogation.”

In September 2006, the United States Army issued an unclassified field manual on interrogation techniques. After setting out the terms of the Detainee Treatment Act of 2005, the Field Manual set out a non-exclusive list of prohibited interrogation techniques including the following:

· forcing a detainee to be naked, perform sexual acts, or pose in a sexual manner

· placing hoods or sacks over the head of a detainee; using duct tape over the eyes

· applying beatings, electric shock, burns, or other forms of physical pain

· using water boarding [or simulating drowning]

· using military working dogs [to instill fear]

· inducing hypothermia or heat injury

· conducting mock executions

· depriving the detainee of necessary food, water, or medical care

The field manual acknowledges that there is a practical difficulty in delineating with precision the line between torture and permissible interrogation techniques, that certain applications and techniques may approach the line between permissible and prohibited actions. The manual suggests that often it may be difficult to determine where permissible actions and prohibited actions begin.”

The Field Manual sets out two criteria for considering whether a particular interrogation technique is permitted:

· if the technique being applied were used by an enemy against a U.S. solider, would the conduct be considered abuse

· could the technique being applied be considered unlawful or a violation of a law or regulation

While the Field Manual acknowledges the difficulty in specifying a comprehensively complete catalogue of prohibited practices, the manual attempts to provide a broad statement providing appropriate guidance to interrogators. The Field Manual provides the following statement of “Caution”:

Although no single comprehensive source defines impermissible coercion, certain acts are clearly prohibited. Certain prohibited physical coercion may be obvious, such as physically abusing the subject of the screening or interrogation. Other forms of impermissible coercion may be more subtle, and may include threats to turn the individual over to others to be abused; subjecting the individual to impermissible humiliating or degrading treatment; implying harm to the individual or his property. Other prohibited actions include implying a deprivation of applicable protections guaranteed by law because of a failure to co-operate; threatening to separate parents from their children; or forcing a protected person to guide U.S. forces in a dangerous area

By its term, the Detainee Treatment Act of 2005 extended its prohibitions on “torture” or “cruel, inhuman, or degrading treatment or punishment” to the entire federal government. However, the provisions of the Act dealing with interrogation applied only to the Department of Defense even though other governmental agencies and contractors may hold persons in custody. Given this limitation of applicability of the Act, it is significant that on July 20, 2007, the President issued an executive order addressing interrogations by the CIA. This executive order bars the CIA from interrogation practices that constitute acts of cruel, inhuman, or degrading treatement or punishment prohibited by the Military Commissions Act and the Detainee Treatment Act of 2005.

As early as 2002, questions were raised about the appropriateness of medical personnel assisting in torture of prisoners. A letter to the British Medical Journal published on January 26, 2002 was captioned: “Doctors in Guantanamo Bay are at risk of being accessories to torture.” A hypothetical letter requesting guidance for a physician assigned to a facility where detainees were to be interrogated was submitted by Tom Marshall, a lecturer in public health medicine in England. The letter read as follows: “Editor – I have been posted to the U.S. military base at Guantanamo Bay. I will be expected to provide medical care to the hundreds of prisoners being relocated from Afghanistan. I am told that they are coming to Cuba for intensive interrogation. I am under no illusion; this is a euphemism, for brutal treatment and torture. It is widely believed – in Central and South America at least – that interrogations sponsored by the CIA and U.S. military incorporated violence ranging from beatings to cycles of drowning. As a doctor, should I resuscitate prisoners so that they might be retortured? I would appreciate your advice.”

Following the publication of the Abu Ghraid photographs and release of documents relating to U.S. policy on interrogation of detainees, a number of physicians argued in various medical journals and general publications for the need to determine the proper role of medical personnel in interrogation and handling of detainees and prisoners. An article by Robert Jay Lifton, author of The Nazi Doctors: Medical Killing and the Psychology of Genocide was published in the July 29, 2004 issue of the New England Journal of Medicine. Dr. Lifton wrote that: “There is increasing evidence that U.S. doctors, nurses, and medics have been complicit in torture and other illegal procedures in Iraq, Afghanistan, and Guantanamo Bay.” Lifton noted that much of the evidence of abuse at Abu Ghraid came from medical documents. From an examination of published reports, Lifton concluded: “We know that medical personnel have failed to report to higher authorities wounds that were clearly caused by torture and that they have neglected to take steps to interrupt this torture. In addition, they have turned over prisoner’s medical records to interrogators who could use them to exploit the prisoner’s weaknesses or vulnerabilities. We have not yet learned the extent of medical involvement in delaying and possibly falsifying the death certificates of prisoners who have been killed by torture.” Further, Lifton observed that: “other reports, though sketchier, suggest that death certificates of prisoners who might have been killed by various forms of mistreatment have not only been delayed, but may have camouflaged the fatal abuse by attributing deaths to conditions such as cardiovascular disease.”

Only a year later, M. Gregg Bloche, a physician and law professor, and Jonathan Marks, a barrister and bioethisist, published an article in the July 7, 2005 issue of the New England Journal of Medicine documenting assistance of medical personnel including psychologists assisting interrogation at Guantanamo Bay. The authors also reported that U.S. policy did limit the role of caregivers in direct intelligence gathering by barring them from acting as interrogators. Bloche and Marks reported that health information was made available routinely to behavioral science consultants and others who were directly responsible for designing and implementing interrogation strategies. Not only did interrogators have access to medical records, but Bloche and Marks reported that “psychiatrists and psychologists have been part of a strategy that employs extreme stress, combined with behavior-shaping rewards, to extract actionable intelligence from resistant captives.

One of the most significant developments involving medical personnel assisting in the development and execution of interrogation techniques took place in late 2002 when the commander at Guantanamo, Major General Geoffrey Miller, authorized the creation of the first “Behavioral Science Consultation Team” (BSCT, pronounced “Biscuit”) which was directed to develop strategies to obtain and to assess intelligence obtained from interrogation. According to Bloche and Marks: “A psychiatrist and a psychologist staffed the Guantanamo BSCT. Those initially assigned to this team both come from health care backgrounds.…BSCT consultants prepared psychological profiles for use by interrogators; they also sat in on some interrogations, observed others from behind one-way mirrors, and offered feedback to interrogators.”

In a subsequent article, The Silence of Doctors published in the December 26, 2005 issue of The Nation, Jonathan Marks reported further on the operation of BSCTs. Health care personnel assigned to BSCT’s were trained at Fort Bragg, North Carolina in a program “Survival, Evasion, Resistance, and Escape” (SERE) which focused on measures developed to assist U.S. soldiers in resisting their captors, which it seems could be used to develop techniques that could be employed at Guantanamo to make interrogation effective. According to Marks: “At SERE school, Biscuit [BSCT] healthcare personnel acquired a grounding in the now well publicized techniques of hooding, prolonged isolation, stress positions, sleep deprivation, and exposure to loud noise and temperature extremes – techniques often used in combination.”

Internal Army reports established that medical personnel associated with BSCTs provided opinions on the character and personalities of detainees, advised on interrogation plans and approaches, and provided feedback on interrogation techniques. Marks provided an account of the interrogation of one detainee at Guantanamo who was questioned for eighteen to twenty hours a day for forty-eight out of fifty-four consecutive days while being subjected to various interrogation techniques including exposure to temperature extremes, barking military dogs, strip searches, stress positions, being led around on a leash and being forced to stand naked in front of women. During this period, a medical corps-man forcibly administered three and a half bags of intravenous fluid.

In another article published in December 2005 in the New England Journal of Medicine, Susan Okie, a physician who was a member of a group of doctors, psychologists and ethicists invited to visit Guantanamo in October 2005, reported on the practice of health care providers at Guantanamo forced feeding or providing assistance in the feeding of hunger strikers. Dr. Okie noted that the World Medical Association in 1975 declared that prisoners who refused food, and whom doctors consider capable of understanding the consequences of refusing food, should not be feed artificially. Dr. Okie concluded: “the force-feeding has become the latest issue in an ongoing debate among medical professionals and ethicists about practices at Guantanamo – a debate that has also covered the use of psychiatrists and psychologist to monitor military interrogations of prisoners, [and] the reported use of information from detainee’s records.”

The ultimate question in this discussion is whether it is ethical for physicians, including psychiatrist, and psychologist to assist in interrogation of detained individuals. There may be general agreement that medical personnel should not participate in designing or implementing torture. There is disagreement in what constitutes “torture” and what are otherwise “permitted practices” that may involve coercive interrogation that fall short of torture. Because of lack of consensus on the meaning of the concept of torture, the question has been reformulated as to whether it is ethical for physicians including, psychiatrists, or psychologists to assist in designing or implementing interrogation of military detainees.

A clear position of proscribing participation of psychiatrists in any involvement in interrogation was taken by the American Psychiatric Association in November 2005. The assembly of the American Psychiatric Association adopted the position that psychiatrists should never participate in or serve as consultants for the coercive interrogation of prisoners, involving methods such as degradation, threats, isolation, imposition of fear, humiliation, sensory deprivation or excessive stimulation, sleep deprivation, exploitation of phobias, or inflicting of physical pain such as prolonged stress positions. There is a consensus among the members of the American Psychiatric Association that it is and remains unethical for a psychiatrist to be involved in the interrogation of detainees in Afghanistan, Iraq, or Guantanamo.

While the American Medical Association always has been clear that its ethical standards preclude a physician from taking part in or indirectly assisting any act of torture, the AMA has been slower in opposing physician involvement in interrogation of military detainees. The AMA has clearly stated that “physicians must oppose and not participate in torture for any reason.” However, in a report issued in June 2005, the AMA stated: “Questions about the propriety of physician participation in interrogations and in the development of interrogation strategies may be addressed by balancing obligations to individuals with obligations to protect third parties and the public.” The AMA’s position distinguished prohibited practices of torture from permitted interrogation activity and associated techniques which involve appropriate or justified concern about the public and society by defining appropriate interrogation as questioning related “to military and national security intelligence gathering, designed to prevent harm or danger to individuals, the public, or national security.” Physicians could consult on interrogations so long as the interrogation does not involve torture and as long as their activity does not mix the roles of health-care provider and consultant. The AMA report stated that physicians may consult to interrogators by developing interrogation strategies that do not threaten or cause physical injury or mental suffering.

In June 2006, the AMA adopted a more refined position on the participation of physicians in interrogation. The AMA ethical rules now provide that “[t]o be appropriate, interrogations [involving physicians] must avoid the use of coercion – that is, threatening or causing harm through physical injury or mental suffering.” According to the current AMA, ethical principles, physicians may perform physical and mental assessments of detainees to determine the need to provide medical care. Examining physicians must disclose to the patient the extent to which others may have access to the information in medical records. However, physicians may not conduct or participate directly in interrogation of a detainee. The AMA now takes the view that participating in interrogation undermines the role of the physician as healer and erodes trust in the physician and the medical profession. The AMA goes farther holding that physicians may not monitor interrogations with the intention of intervening in the process; because, according to the AMA, this involvement constitutes direct participation in interrogation. The AMA also imposes a duty on physicians to report cases where they believe coercion has been used; and where military authorities failed to act on these reports, physicians are ethically obligated to report such coercive conduct to independent authorities that have the power to investigate in adjudicate such allegations. While the current AMA position severely restricts the role of physicians in direct participation in interrogations of detainees, the AMA continues to recognize a role of physicians in developing interrogation programs and determining the effectiveness of interrogation techniques. The current AMA ethical principles provide: “Physicians may participate in developing effective interrogation strategies for general training purposes.” This permissive position is limited by the caveat that these strategies must not involve the imposition or threat of physical injury or mental suffering and must be humane and respect the rights of individuals.

Similar to the earlier AMA, the American Psychological Association has taken the position that it is consistent with the APA Ethics Code for a psychologist to serve in consultative roles to interrogation and information-gathering processes for national security related purposes, although psychologists should not support, facilitate, or offer training in torture or other cruel inhumane or degrading treatment. The APA has stressed a significant role of psychologists to guard against what is labeled “behavioral drift” by interrogators which involve a deviation from professional or ethically acceptable behavior on the part of interrogations to abusive or injurious conduct. This “behavioral drift” arguably occurs where there is a lack of guidance and oversight and can lead to coercive interrogation techniques which amount to torture. According to the APA, psychologists are trained in human behavior, and are able to observe and intervene to prevent “behavioral drift.” This position, of course, may permit psychologists to participate directly or minimally to intervene in interrogation, but this participation is allowed on the grounds that the presence of psychologists can ensure that interrogations are conducted in a safe and ethical manner.

At the August 2008 meeting of the American Psychological Association in Boston, there was continuing debate on whether the APA’s ethical rules should forbid participation of psychologists in interrogation activity, particular as military behavioral science consultants and as participants in BSCT (Biscuits). On August 16, 2008, the New York Times reported that: “Defenders of that role [in military interrogations] insist that the [BSCT] teams are crucial in keeping interrogation safe, effective, and legal. Critics [however] say the primary purpose [of these interrogations with the assistance of psychologists] is to help break detainees, using methods that might violate international law.” The New York Times quoted a critic of the current permissive APA position as stating: “In this kind of environment [where coercive interrogation techniques are used] health professionals bound by strong ethical imperatives to do no harm, may become calibrators of harm.” Echoing the APA’s emphasis on the role of psychologist as proactive monitors of interrogation, the Times quoted another psychologist who stated: “There is no doubt that the psychologist’s presence can be abused, but if there’s no accountability, and you walk away feeling noble and righteous, but you haven’t done a damned thing.” The current guidelines provide that: “it is consistent with the APA ethics code for psychologists to serve in consultative roles to interrogation and information gathering processes for national security-related purposes” so long as they do not participate in any of a list of specified prohibited coercive practices including mock executions, water-boarding, or any other form of simulated drowning or suffocation, sexual humiliation, rape, cultural or religious humiliation, exploitation of phobias or psychopathology, induced hypothermia, the use of psychotropic drugs or mind-altering substances, hooding, forced nakedness, stress positions, the use of dogs to threaten or intimidate, physical assault including slapping or shaking, exposure to extreme heat or cold, threats of harm or death, and isolation, sensory deprivation and over stimulation and or sleep deprivation in a manner that represents significant pain or suffering or in a manner that a reasonable person would judge to cause lasting harm.”

I would like to suggest there a number of significant questions that arise when considering whether there is a role properly undertaken by health professionals in the interrogation of military detainees and prisoners of war. (1) Is there a bright line that distinguishes torture from other interrogation techniques that are coercive but fall short of torture as suggested by the positions taken by the U.S. Department of Justice and the Defense Department? Does international law and U.S. federal law provide definitive guidance? (2) Is there a standard for medical personnel, establishing what contact with a detainee is permitted (or perhaps required) that will not implicate health care personnel in the interrogation, or possible torture, of that person? (3) Is there a duty of professionals with relevant training to assist authorities in the defense of the nation including participation in investigation and interrogation to develop information vital to the defense of the country? If there is such a duty, how is it reconciled with the obligation of health care personnel to “do no harm” by providing appropriate or needed medical care while avoiding inflicting prohibited mental or physical suffering?

The guidance provided by legal authority suggests there is not a bright line for determining what constitutes torture. The principal international authority is so broad that any interrogation techniques intended in any way to compel a response from a detainee would constitute torture. The United Nationals Convention Against Torture or Other Cruel, Inhumane or Degrading Treatment or Punishment defines torture as “any act by which severe pain or suffering, whether physical or mental, [which] is intentionally inflicted by or at the instigation of a public official on a person for such purposes as obtaining from him or a third person, information or confession, punishing him for an act he has committed or is suspected of having committed or intimidating him or other persons.” The prohibition of “any act by which pain or suffering is inflicted on a person” without regard to duration or significant injury for purposes of obtaining information or intimidation effectively excludes almost all coercive interrogation techniques. For example, the European Commission found the interrogation techniques used by British security forces against suspected terrorists in Northern Island to constitute torture; the techniques used by the British included wall standing in a stress position, hooding, subjection to noise, deprivation of sleep, food and drink for a significant time.

By contrast, United States federal law provides that torture requires severe physical or mental pain and with prolonged injury or profound effect on the personality. Chapter 18 U.S.C.A. §2340 provides in part: “‘torture means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering… ‘severe mental pain or suffering’ means prolonged mental harm resulting from…the administration or application, or threatened administration or application , of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality [or] the threat of imminent death.”

A federal district court, as one might predict, has held that infliction of significant physical harm on a person constitutes torture ruling that: “Allegations that Nigerian citizens were shot, raped, beaten with various instruments, stripped of their clothing, tied up, forced to lie for hours in the tropical sun, sprayed with chemicals and denied adequate food, medical care, and sanitary facilities, when gathered together, if not alone, were sufficient to state an actionable claim for torture” under federal law. There are no reported cases of prosecution under Section 2340. Civil suits have been filed under the Torture Victims Protection Act (TVPA). In suits brought under the TVPA, courts have not provided any substantial analysis of what acts constitute torture. It is significant that almost all of the cases brought under the TVPA have involved significant physical abuse, especially cruel and sadistic acts including severe beatings; threats of death, such as mock executions; threats of removing extremities; burning, and especially burning with cigarettes; electric shocks to genitalia; and rape or sexual assault. Interrogation that falls far short of such physical abuse involving significant bodily injuries might not be found by a federal court to constitute torture under federal law.

In determining what constitutes torture in terms of psychological injury, the opinion of a federal district court in Georgia is instructive, the court determined that a Bosnian Muslim had established he had been tortured by a Bosnian Serb. The court found that both the threat of severe physical pain and the treat of imminent death were present and persistent. The court concluded that the plaintiff established the existence of prolonged mental harm since the plaintiff continued to experience long-term psychological harm, including recurrent nightmares, as a result of the defendant’s acts. If there is a requirement of prolonged mental harm or long term harm of a substantial duration to constitute torture, however it can be argued that many of the psychological techniques employed by military interrogators may fall short of torture. In any case, it appears that it is not possible to draw a bright line on what conduct constitutes torture and what interrogation techniques fall short of torture.

Physicians providing health care to detainees are obligated to provide detainees with physical and mental examinations and to provide appropriate care. Similarly, physicians presented with patients who have been injured are obligated to provide appropriate treatment. Inevitably, physicians will be asked to assist military personnel wishing to interrogate detainees by determining or establishing a detainee’s fitness or suitability for interrogation. Likewise, treating a detainee may result in making the detainee eligible for reinterrogation. While a standard prescribing direct participation in torture may be easily formulated and executed, a prohibition on indirect participation seems much more problematic. Of course, there is additional argument that the presence of medical personnel not only provides for appropriate medical care, but also can provide assurance that interrogations are conducted in a safe, ethical and legal manner. On the other hand, the presence of physicians and other health care personnel in the guise of protecting detainees can result in legitimating the conduct of the interrogator. In his article in the New England Journal of Medicine raising concern about a physician’s presence at or participation in military interrogations, Robert Jay Lifton observed: “In studying various forms of abuse, I have found that the participation of doctors can confer an aura of legitimacy and can even create an illusion of therapy and healing.”

Finally, there is the question of whether there is a duty on the part of health care professionals to provide society their expertise in pursuit of social protection and maintenance of national security. Is there an ethical obligation to society on the part of health care providers to aid interrogations involving questioning related to military and national security intelligence gathering, designed to prevent harm or danger to individuals, the public or national security? This is the issue now facing the American Psychological Association. Can interrogation techniques be developed that do not constitute torture, can interrogation be conducted in a way that is not categorically unethical from a medical point of view and still be effective in producing useful information?

There clearly are troubling ethical issues raised by the participation of physicians, including psychiatrists, and psychologists in the interrogation programs undertaken by the military in Afghanistan, Iraq, and Guantanamo. Certain conduct such as breaching confidentiality of medical records, falsifying death certificates, and direct participation in clearly delineated torture can be condemned as breeches of professional ethics. Still, there seems to be a range of unresolved issues including a determination of what constitutes legitimate and lawful interrogation techniques; the establishment of any range of appropriate indirect participation in interrogation; and a proper balancing of the obligation of health care professionals “to do no harm” and the responsibility of health care professionals to society in preventing harm or dangers to the public or national security by providing assistance in interrogation undertaken in support of the national interest.