Clinical Ethics in Anesthesiology. A Case-Based Textbook

6. Anesthesiologists, the state, and society

48. Physician facilitation of torture and coercive interrogation

David B. Waisel

The Case

A suspect informs police that he has buried a 5 year-old girl in a box with a limited air supply. Standard interrogation techniques have failed to ascertain the girl’s location and it is believed she may have only several hours to live. A judge authorizes torturing the suspect to obtain the girl’s location. The proposed method of torture is to have an anesthesiologist administer a paralytic drug to the awake prisoner, and then allow the prisoner to experience periods of awake paralysis without respiratory support. This will result in acute hypercarbia, severe dyspnea, and an experience of awake suffocation. After a period of time, time the anesthesiologist will be instructed to ventilate him with a bag and mask, reverse the paralytic, and allow him to answer questions. The technique will leave no lasting physical disfigurement or disabilities.

This type of scenario, known as the “ticking time bomb scenario” is often proposed as one in which torture might be justified. Some authors suggest that in cases of “ticking time bomb scenarios,” not only is torture possibly justified, but that it should be regulated by judicial warrant and oversight.1

Torture is the deliberate infliction of mental and physical suffering in order to overcome resistance or to sufficiently disorient prisoners so that the torturer can intimidate, extract information, and obtain confessions. Methods of physical torture include, but are by no means limited to, beating, choking, stressful positioning, “simulated drowning”a and use of electric shock. Methods of psychological torture involve sensory manipulation, sleep deprivation, exploitation of phobias, and humiliation. Torture is performed during peace and wartime – by state policy or by individual decision. “Participation in torture” is not necessarily confined to administration of the coercive technique itself. Historically, medical personnel have participated in torture by evaluating prisoners for interrogation, monitoring coercive interrogation, allowing interrogators access to medical records of the prisoners to develop their interrogative approaches, falsifying medical records and death certificates, and failing to provide even basic healthcare.2

All mainstream medical ethicists unwaveringly reject torture as an affront to the fundamental and absolute right of all humans to dignity. We shall consider the morally impermissible nature of torture (as well as of coercive interrogation), the ethical prohibition of physician participation in torture, and the dilemma of dual loyalties facing physicians requested or mandated to participate in such universally condemned activities.

International statements banning torture

Arguments prohibiting torture are straightforward and powerful. Perhaps the most potent argument is the psychological, emotional, cultural and legal prohibition to treat people inhumanely. For that reason, a number of agreements and statements ban torture.3 For example, the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment from the United Nations4 states:

Torture and other cruel, inhuman or degrading treatment or punishment are particularly serious violations of human rights and, as such, are strictly condemned by international law.

The Convention declared that no “exceptional circumstances” and no legal authority may supersede this absolute prohibition.

For long periods of history, torture was legal, and physician participation was common. Following revelations about atrocities during World War II, Western nations condemned torture through documents such as the Geneva Conventions and statements from the international medical tribunal at Nuremberg. In 1982, the United Nations reiterated the foundational ethical medical principle of nonmaleficence (primum non nocere – first do no harm), imploring physicians to adhere to this dictum when requested – or ordered – to participate in medical interventions that are not intended to be beneficial:

It is a great contravention of medical ethics, as well as an offence under applicable international instruments, for health personnel, particularly physicians, to engage, actively or passively, in acts which constitute participation in, complicity in, incitement to, or attempts to commit torture or other cruel, inhuman or degrading treatment or punishment.5

The World Medical Association has repeatedly made declarations against physician participation in torture as well as in other cruel, inhumane or degrading practices. In particular, it iterated that:

Medical ethics in times of armed conflict is identical to medical ethics in times of peace … [and that] … if, in performing their professional duty, physicians have conflicting [dual] loyalties, their primary obligation is to their patients.

The American Medical Association lends even further support by calling upon physicians to support victims of torture, reject the use of torture, and endeavor to change situations in which torture is practiced.6

Treaties and statements prohibiting torture encourage states not to torture so that their enemies also will not torture. For example, the prohibition on gas warfare was effective in World War II because each side feared that initiating gas warfare would result in a similar enemy response. The moral clarity provided by statements may enable states to refrain from torture regardless of enemy actions. In addition, torture rents the fabric of both the torturer and the community. If torture were to become acceptable within society, it may become psychologically easier to permit other immoral acts.

Some commentators suggest that torture may be acceptable under certain conditions,7 but that torture should be a last resort only after other less intrusive measures have failed. They further declare that interrogators would need robust reasons for believing that the prisoner has the desired information, and that such information must have immediate benefits for reducing or preventing imminent harm. Under these specific conditions, they contend, torture may be worth its associated harms. However, these authors further opine that torture should not be used to force confessions or to uncover unspecified, future crimes. Other gross considerations may include the likelihood that the information is accurate and the potential benefits such as lives saved from the information.

No studies confirm or deny the relative accuracy of torture in extracting accurate information, or how often information obtained from torture has saved lives. Many experienced interrogators believe that torture is less likely to lead to accurate information than other techniques such as relationship building. If the rate of success is relevant in deciding whether to torture, however, this implies that the decision to torture should be based on risks and benefits. From an ethics point of view, if torture is wrong because it is an affront to human rights and dignity, then it is always wrong, regardless of the rate of success.

Returning to the case example at the beginning of this chapter, we find that the kidnapped girl in the box is an example of a scenario that fulfills many of these aforementioned requirements. The confessed perpetrator has provided sufficient evidence to prove his participation and knowledge of the crime (to help rule out coerced confession), less invasive methods have failed, and time-sensitive results will immediately benefit the kidnapped girl. Presumably acting in good faith, interrogators desired to avoid torture, but feel compelled by their obligation to help the girl. Importantly, the judge, a formal authority operating within her jurisdiction of protecting others, has approved proceeding, so there is no legal impediment. False leads will not cause a misallocation of limited resources that otherwise might expose society to other harms, and the information can be quickly confirmed or disproven.

While there may be no tangible losses in this case, there may be meaningful societal losses. Torturing that leads to rescuing the girl may nudge society toward being more accepting of torture. If society were to choose to sanction torture, then the policy and process ideally would be wholly transparent, inviting public discussion and review. But, no matter what precautions are taken, permitting torture – even under limited circumstances – likely will lead to abuses. Moreover, a declaration removing the taboo of the unethical nature of torture would give other countries (and terrorists) a public relation’s safe harbor to perform torture.b

Should physicians participate in torture?

The American Medical Association (AMA) Opinion on Torture states, “Physicians must oppose and must not participate in torture for any reason.”8 The argument, in part, is that torture is antithetical to the physician’s primary responsibility to help patients as they define help. Moreover, the AMA’s Code of Medical Ethics states, “Physicians may treat prisoners or detainees if doing so is in their best interest, but physicians should not treat individuals to verify their health so that torture can begin or continue.” This “best interest” phrase has laid the basis for a distinct minority of commentators who believe that traditional medical values mandate at least minimal physician participation in hostile interrogation even though this theoretically could prepare the prisoners to undergo further hostile interrogation. However, the AMA condemns coercive interrogation as well as torture.

Countervailing the argument that physicals should only act in the patients interest is that number of physicians work for the public good and do not prioritize helping individual patients. Consider, for example, the specialties of forensic psychiatry, public health and occupational health in which physicians often incorporate an investigative component when providing services to the public. In this sense, it has been suggested that legally sanctioned torture is similar in that it would claim that it serves the public good. This specious argument ignores the critical factual difference that forensic psychiatrists and public health and occupational health physicians do not directly physically or psychologically harm individual patients, either. Furthermore, although physicians may make it easier to accomplish torture, their participation is in fact not necessary for torture to happen. Torture can be accomplished in many other ways.9

The military physician

A newly deployed physician must decide whether to post physician assistants and medics behind a one-way mirror during interrogations. A military police commander tells the physician that “the way this worked with the unit here before was: We’d capture a guy; the medic would screen him and ensure he was fit for interrogation. If he had questions he’d check with the supervising doctor. The medic would get his screening signed by the doc. After that, the medic would watch over the interrogation from behind the glass.”10

In this scenario, coercive interrogation is designed to find general information, not specific, time-sensitive information. Moreover, there would be a limited ability to immediately validate the confession, leading to a much higher likelihood of wasting resources while pursuing false leads.

The US military has stated that they perform coercive interrogation but not torture. Military conflicts usually lead to the detention and interrogation of adversaries, but whether hostile “stress and duress” tactics are tantamount to torture is debatable. The military further argues that the physicians assisting in devising or performing coercive interrogation strategies do not have doctor–patient relationships with the prisoners because other physicians not participating in coercive interrogation provide the medical care for the prisoners. In fact, they argue, physicians participating in coercive interrogation are using medical skills outside of functioning in the role of a physician. Many consider this interpretation as a dubious one, arguing that physicians are, indeed, acting as physicians by virtue of using medical knowledge and skills in their interaction with the prisoners.

Military physicians are faced with balancing what is simplistically known as “dual loyalty” when deciding whether they have an obligation to participate in coercive interrogation as part of their military and societal obligation.11 Military medicine is a mingling of the military and the medical professions. Under most circumstances, the military physician serves primarily as a physician, and to a lesser degree as a member of the military. However, on occasion, the two positions can be contradictory. On one hand, military physicians have obligations to fellow soldiers, the military and the nation’s military units to perform what is necessary to achieve the goals of the military and their country. On the other hand, these physicians have an obligation to honor personal values and beliefs as well as their obligation to society of not harming the image of the physician. To advise military physicians, commentators mostly declare that one of the two obligations has absolute hegemony over the other. While dogma may be helpful to some physicians, others appreciate having a process to resolve these dilemmas.

The International Dual Loyalty Working Group (IDLWG) guidelines call for education of physicians to recognize dual loyalty situations involving human rights and international law. They suggest that an independent group should set standards for behavior in dual loyalty situations, and, additionally, that a formal appeals process and whistle-blower protections be instituted. Their proposals center on the premise that population-based interventions of standards through oversight and statements of professional organizations will change behavior and provide support for the individual physician.

Notwithstanding the recommendations of the IDLWG, commentators generally insist that military and civilian physicians must hew to the same standards of ethical behavior because medical ethics are universal.12 In addition, they argue, the military benefits by adhering to civilian standards because it is more consistent with the mindsets of physicians. Both arguments, however, have been challenged. While possibly true in theory, in reality medical ethics are not universal. And given that the unique experiences and obligations of military physicians are not often encountered in civilian settings, the ethical principles of the civilian physician may not always be appropriate – or practicable – to apply to military medical standards.

A danger in excusing the military physician lies in the possibility that torture for the purposes of the state may be viewed without the same critical eye as torture by law enforcement agencies within a state. Furthermore, participation in torture leads to degradation of the physician, whether civilian or military, by allowing him or her to become “socialized to atrocity.”13

As Annas stated:

Preventing torture is everyone’s business – but three professions seem to be especially well suited to prevent torture: medicine, law and the military. Each profession has particular obligations. Physicians have the obligations of the universally recognized and respected role of healers. Lawyers have the obligations to respect and uphold the law, including international humanitarian law. And military officers have the obligation to follow the international laws of war, including the Geneva Conventions.14

Physician participation in torture harms the integrity of the medical profession and societal trust in physicians, and physicians must consider the societal consequences of such behavior. Statements by organized medicine provide some reflection of the potential for such public harm. The ethical analysis of statements written during peacetime is often superior to the impromptu analysis made in the heat of battle. Physicians under considerable stress may want to consider the limitations of their ability to perform ethical analysis and may want to defter to such statements.

Key points

• Every treaty, international agreement, national policy, and medical association code of ethics declares that torture is not morally permissible and that physicians should not be involved in coercive interrogations.

• Commentators disagree about distinctions between torture and coercive interrogation.

• There is similar disagreement about distinctions between when a physician is acting as a physician and when a military officer, who happens to be a physician, is not acting as a physician.

• Nearly all commentators prohibit any physician participation in any aspect of coercive interrogation or torture.

• Dual loyalty decisions by physicians about torture and interrogation are emotionally charged and highly stressful, and should not be made by the individual in the moment, but rather based on central policies with fervent oversight.

Notes

a It should be noted that in this usage, “simulated drowning” refers to the creation of a sensation of drowning, often through the submersion in and aspiration of water.

b Author’s note: If a judge were to come to me as a physician and ask me to torture a confessed suspect in order to try to save the little girl’s life in a time-limited situation, then I would find it difficult to refuse to participate. If the girl were a child I knew, then I suspect that I might even find it quite easy to torture the suspect. While emotions in the heat of the moment are understandable, such emotionally based behaviors are precisely why society prohibits vigilante justice. I want to convey that we should not leave emotional, stressful, and even dual loyalty decisions about torture or coercive interrogation to the individual (in this case, a physician) in the moment. These decisions should be based on central policies guarded with fervent oversight.

References

1 Dershowitz, A.M. (2002). Why Terrorism Works: Understanding the Threat, Responding to the Challenge. New Haven, CT: Yale University Press

2 Miles, S.H. (2004). Abu Ghraib: its legacy for military medicine. Lancet364, 725–9

3* World Medical Association Declaration Concerning Support for Medical Doctors Refusing to Participate in, or to Condone, the Use of Torture or Other Forms of Cruel, Inhuman or Degrading Treatment.1997.

4 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. United Nations. 1984.

5 United Nations General Assembly resolution 37/194, Principle 2. 111th plenary session, 18 December 1982 www.un.org/documents/ga/res/37/a37r194.htm

6 Council on Ethical and Judicial Affairs, American Medical Association. E-2.067-Torture.

7* Kennedy, R.G. (2003). Can interrogatory torture be morally legitimate? Presented at JSCOPE 2003: A Joint Services Conference on Professional Ethics

8 Council on Ethical and Judicial Affairs, American Medical Association. E-2.067-Torture.

9* Benatar, S.R. and Upshur, R.E. (2008). Dual loyalty of physicians in the military and in civilian life. Am J Public Health98, 2161–7.

10* Singh, J.A. (2003). American physicians and dual loyalty obligations in the “war on terror.” BMC Med Ethics4, E4.

11 International Dual Loyalty Working Group. Dual Loyalty and Human Rights in Health Professional Practice: Proposed Guidelines and Institutional Mechanisms. New York and Cape Town, South Africa: Physicians for Human Rights and the School of Public Health and Primary Health Care, University of Cape Town, Health Sciences Faculty; 2002.

12* Annas, G.J. (2008). Military medical ethics – physician first, last, always. N Engl J Med359, 1087–90.

13* Lifton, R.J. (2004). Doctors and torture. N Engl J Med351, 415–6.

14 Annas, G.J. (2005). Unspeakably cruel – torture, medical ethics and the law. New Eng J Med352: 2127–32

Further reading

Bloche, M.G. and Marks, J.H. (2005). When doctors go to war. N Engl J Med352, 3–6.

Silove, D.M., and Rees, S.J. (2010). Interrogating the role of mental health professionals in assessing torture. BMJ340, c124.

Walzer, M. (2006). Just and Unjust Wars: A Moral Argument with Historical Allusions. 3rd ed. New York: Basic Books