The most broadly applicable is the World Medical Association’s International Code of Medical Ethics prohibition against using “medical knowledge to violate human rights and civil liberties, even under threat.” The AMA Code of Medical Ethics states, “A physician shall be dedicated to providing competent medical care, with compassion and respect for human dignity and rights.” The American Psychiatric Association buttressed this mandate in 2006 with the precept that “no psychiatrist should participate directly in the interrogation of persons held in custody by military or civilian investigative or law enforcement authorities.”12 Similarly, the AMA has since mandated that “physicians must neither conduct nor directly participate in an interrogation.”13
The American Psychological Association (APA), however, has trod a slightly different path. Although its code mandates that “psychologists take reasonable steps to avoid harming their patients or clients,” the organization voted in 2002 that when ethical precepts run afoul of legal rules, “psychologists may adhere to the requirements of the law, regulations, or other governing authority.14 That precept allowed what the APA has since termed “the so-called Nuremberg Defense” to support the conduct of psychologists participating in interrogation.15
In August 2008, the APA membership resolved that psychologists “may not work in settings where persons are held outside of, or in violation of” international or domestic law. Two months ago the APA Council of Representatives voted to direct the APA Ethics Committee to amend the organization’s Ethical Standard 1.02 to reflect the resolution. The council’s directive has been presented to the APA membership for comment. In February 2010, the ethics committee will vote on the measure. Should the committee approve the amendment by a requisite two-thirds vote, the amended standard will go into its ratification by the APA Board of Directors.
Medical personnel involved in interrogations not only forgot the then-existing ethics codes, but they also seemed to have forgotten about the Geneva Conventions, although 94% reported being familiar with their proscriptions against torture. Or, perhaps, they were mindful that the Commander in Chief had concluded that the Conventions were inapplicable to their conduct. If so, then they might have known that his decision also eliminated the protections of Protocol 1: “Under no circumstances shall any person be punished for carrying out medical activities compatible with medical ethics, regardless of the person benefiting therefrom.”
Perhaps this last point is the crux. Health care professionals were in a position to stop what the Administration and its lawyers had promoted, but the promoted position threatened not only the dignity of the detainees, but also the independent professionalism of health care providers.
As the investigation announced by current Attorney General Eric Holder proceeds, maybe we in the legal and health care professions can find reason to hope that the past 8 years will provide incentive for our professional organizations to work together in support of both medical ethics and international human rights laws.
1. Counterterrorism Detention and Interrogation Activities (September 2001-October 2003) (2003-7123-IG), May 7, 2004. http://www.freedominfo.org/documents/20090824cia.pdf. Accessed October 9, 2009.
2. Dept of the Army, Office of the Surgeon General, Final Report, Assessment of Detainee Medical Operations for OEF, GTMO, and OIF (April 13, 2005). http://www.globalsecurity.org/military/library/report/2005/ detmedopsrpt_13apr2005.pdf. Accessed October 9, 2009.
3. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85. http://untreaty.un.org/english/treatyevent2001/pdf/ 07e.pdf. Accessed October 9, 2009.
4. Dept of Justice. Legal Standard Applicable Under 18 U.S.C. §§ 2340-2340A, December 30, 2004. http://www.usdoj.gov/olc/18usc23402340a2.htm. Accessed October 9, 2009.
5. Isikoff M. We Could Have Done This the Right Way. Newsweek. May 4, 2009. http://www.newsweek.com/id/195089. Accessed October 9, 2009.
6. Dept of the Army, Office of the Surgeon General. Final Report Assessment of Detainee Medical Operations for OEF, GTMO, and OIF (April 13, 2005). http://www.globalsecurity.org/military/library/report/2005/ detmedopsrpt_13apr2005.pdf. Accessed October 9, 2009.
7. Memorandum from John Yoo, Deputy Assistant Attorney General, to Timothy E. Flannigan, Deputy Counsel to the President (September 25, 2001). Reprinted in: Greenberg KJ, Dratel JL, eds. The Torture Papers: The Road to Abu Ghraib.New York: Cambridge University Press; 2005.
8. Memorandum from Alberto R. Gonzales, White House General Counsel to President George W. Bush, Re: Decision Re Application of the Geneva Conven- tion on Prisoners of War to the Conflict With Al Qaeda and the Taliban. January 25, 2002. http://www.humanrightsfirst.com/us_law/etn/gonzales/memos_dir/memo_20020125_Gonz_Bush.pdf. Accessed October 9, 2009.
9. Memorandum from Office of the Assistant Attorney General, to Alberto R. Gonzales, Counsel to the President (August 1, 2002). http://image.guardian.co.uk/sys-files/Guardian/documents/2009/04/16/bybee_ to_rizzo_memo.pdf. Accessed October 9, 2009.
10. Mayer MJ. Outsourcing Torture: The Secret History of America’s “Extraordinary Rendition” Program. New Yorker. February 14, 2005. http://www.newyorker.com/archive/2005/02/14/050214fa_fact6#Replay. Accessed October 9, 2009.
11. Smith CM. Origin and uses of primum non nocere—above all, do no harm! J Clin Pharmacol. 2005; 45:371-377.
12. American Psychiatric Association. Psychiatric Participation in Interrogation of Detainees: Position Statement. Approved by the Board of Trustees, May 2006. http://archive.psych.org/edu/other_res/lib_archives/ archives/200601.pdf. Accessed October 9, 2009.
13. American Medical Association. Opinion 2.068: Physician Participation in Interrogation. http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/opinion2068.shtml. Accessed October 9, 2009.
14. American Psychological Association. Ethical Standard 1.02, Conflicts Between Ethics and Law, Regulations, or Other Governing Legal Authority. http://www.APA.org/ethics/standard-102/provisions-codes.html. Accessed October 9, 2009.
15. American Psychological Association. APA Council of Representatives Directs Change in Its Ethics Code to Prevent So-Called Nuremberg Defense. August 5, 2009. http://www.APA.org/releases/ethical-standard.html. Accessed October 9, 2009.