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Recent Developments in Health Law
Accountability after Guantanamo: The Role of U.S. Health Professionals
Published online by Cambridge University Press: 01 January 2021
Extract
Health professionals around the world have played an integral role in state-sponsored torture during numerous historical episodes, at times providing “expertise and a veneer of legitimacy to a process that involved violations of basic human rights.” These incidents demonstrate why legal and ethical standards among health professionals should be upheld, no matter the context. For example, health professionals during the Third Reich in Germany notoriously worked with the Nazi government to perform painful medical experiments on individuals without their consent and to supervise systematic killings. During the dictatorships in Brazil, Chile, and Uruguay and during apartheid in South Africa, medical professionals also participated in torture. In recent years, government documents, news reports, articles, books, and testimonies by detainees and health professionals have exposed the involvement of health professionals in the abuse and torture of detained individuals at U.S. detention facilities around the world.
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References
Pope, K. S. Gutheil, T. G., “Psychologists Abandon the Nuremberg Ethic: Concerns for Detainee Interrogations,” International Journal of Law and Psychiatry (2009):161–166, at 161.CrossRefGoogle Scholar
See Lifton, R. J., “Doctors and Torture,” New England Journal of Medicine 351 (2004): 415–416, at 416. See also Powell, A., “Why Good Doctors Do Bad Things,” Harvard Gazette, March 3, 2005; Annas, G. J., “Unspeakably Cruel – Torture, Medical Ethics, and the Law,” New England Journal of Medicine 352 (2005): 2127–2132, at 2127.CrossRefGoogle Scholar
See Volkmer, S., “Sanctions for Torture: Domestic Medical Associations Take Action,” June 2010, When Healers Harm Website, available at <http://www.law.berkeley.edu/files/SanctionsforTorture(final)11June10.pdf> (last visited February 1, 2012). See generally When Healers Harm website, available at <http://whenhealersharm.org/category/resources/> (last visited February 1, 2012).+(last+visited+February+1,+2012).+See+generally+When+Healers+Harm+website,+available+at+
See, e.g., Miles, S. H., “Abu Ghraib: Its Legacy for Military Medicine,” Lancet 364, no. 9435 (2004): 725–729.CrossRefGoogle Scholar
See Clark, P. A., “Medical Ethics at Guantanamo Bay and Abu Ghraib: The Problem of Dual Loyalty,” Journal of Law, Medicine & Ethics 34, no. 3 (2006): 570–580, at 574.CrossRefGoogle Scholar
See, e.g., Bloche, M. G. Marks, J. H., “Doctors and Interrogators at Guantanamo Bay,” New England Journal of Medicine 353, no. 1 (2005): 6–8, at 6.CrossRefGoogle Scholar
Recent literature has discussed the behavior of health professionals at Guantánamo and Abu Ghraib, the ethical issues that arise when health professionals have dual loyalty to both institutional clients (the military) and individual clients (the detainees), and whether or not health professionals should ever participate in interrogations. Indeed, one author, Kenneth S. Pope, compiled a list of over 320 articles. That list is available at <http://kspope.com/interrogation/index.php> (last visited February 1, 2012). Articles have provided recommendations for reform, calling for independent investigations into the role of military health professionals in the abuse of detainees, and the development of further guidelines for health professionals. See, e.g., Costanzo, M. Gerrity, E. Lykes, M. B., “Psychologists and the Use of Torture in Interrogations,” Analysis of Social Issues and Public Policy 7, no. 1 (2007): 7–20, at 16.Google Scholar
Dr. Reisner is currently a professor of clinical psychology at New York University School of Medicine and a supervisor at the International Trauma Studies Program. See Center for Justice & Accountability Website, “Dr. Steven Reisner, PhD,” available at <http://www.cja.org/article.php?id=798> (last visited February 1, 2012).+(last+visited+February+1,+2012).>Google Scholar
The author is currently involved in a matter, Bond v. Ohio State Bd. of Psychology, involving a former military psychologist in Ohio, Dr. Larry C. James, who was a chief psychologist at Guantánamo.Google Scholar
Licensing Complaint Against Dr. John Francis Leso State of New York, License number 013492, available at <http://cja.org/article.php?id=876> [hereinafter cited as Complaint].+[hereinafter+cited+as+Complaint].>Google Scholar
Id., at 1, 20–29.Google Scholar
Letter from Louis J. Catone to Kathy Roberts, Esquire, Center for Justice & Accountability (July 2010), at 2, available at <http://www.cja.org/downloads/No._2._OPD_Denial_of_Jurisdiction.7.28.10.pdf> [hereinafter cited as OPD Response].+[hereinafter+cited+as+OPD+Response].>Google Scholar
See Letter from Kathy Roberts to Louis J. Catone, Director (August 2010), available at <http://cja.org/article.php?id=909> (last visited February 1, 2012).+(last+visited+February+1,+2012).>Google Scholar
See generally Verified Petition, available at <http://www.cja.org/downloads/Verified%20Petition%20Leso.pdf> (last visited February 1, 2012). This is an Article 78 proceeding, like a mandamus action, which is used to challenge final decisions by state officers. See N.Y. CVP. LAW § 7801.+(last+visited+February+1,+2012).+This+is+an+Article+78+proceeding,+like+a+mandamus+action,+which+is+used+to+challenge+final+decisions+by+state+officers.+See+N.Y.+CVP.+LAW+§+7801.>Google Scholar
Id., at 11.Google Scholar
See Memorandum of Law in Support of the Respondents' Cross-Motion To Dismiss the Verified Petition, available at <http://www.cja.org/downloads/NYAGMTD%201.14.pdf> (last visited February 1, 2012) [hereinafter cited as Respondents' Motion to Dismiss]. (last visited February 1, 2012) [hereinafter cited as Respondents' Motion to Dismiss].' href=https://scholar.google.com/scholar?q=17+See+Memorandum+of+Law+in+Support+of+the+Respondents'+Cross-Motion+To+Dismiss+the+Verified+Petition,+available+at++(last+visited+February+1,+2012)+[hereinafter+cited+as+Respondents'+Motion+to+Dismiss].>Google Scholar
See Reisner v. Catone, 929 N.Y.S.2d 403 (N.Y. Sup. 2011).Google Scholar
Furthermore, an appeal is possible. Dr. Reisner has not yet announced whether he will be appealing the decision.Google Scholar
See Complaint, supra note 10, at 1.Google Scholar
Memorandum on BSCT Standard Operating Procedures (November 11, 2002) at 1, available at <http://cja.org/article.php?id=910> (last visited February 1, 2012).+(last+visited+February+1,+2012).>Google Scholar
Senate Armed Services Committee, Inquiry into the Treatment of Detainees in U.S. Custody (November 20, 2008), at 52 (quoting a BSCT Counter-Resistance Strategies memo at 4–5), available at <http://documents.nytimes.com/report-by-the-senate-armed-services-committee-on-detainee-treatment> (last visited February 1, 2012).+(last+visited+February+1,+2012).>Google Scholar
See Complaint, supra note 10, at 5. The Complaint specified that this behavior violated New York professional statutes and regulations that prohibit “gross incompetence and negligence, unprofessional conduct, conduct exhibiting moral unfitness to practice the profession, unauthorized treatment, neglect of a patient in need of immediate care, and willful abuse and harassment.” Id. The Complaint cites N.Y. Educ. Law §§ 6509 (2), (9) and Rules of Regents §§ 29 (b)(5), (11), 29.2(a)(1), (2), (7).Google Scholar
U.S. Department of Justice Office of the Inspector General, A Review of the FBI's Involvement in and Observations of Detainee Interrogations in Guantanamo Bay, Afghanistan, and Iraq (May 2008), at 171, available at <http://cja.org/article.php?id=833> (last visited February 1, 2012). (last visited February 1, 2012).' href=https://scholar.google.com/scholar?q=24+U.S.+Department+of+Justice+Office+of+the+Inspector+General,+A+Review+of+the+FBI's+Involvement+in+and+Observations+of+Detainee+Interrogations+in+Guantanamo+Bay,+Afghanistan,+and+Iraq+(May+2008),+at+171,+available+at++(last+visited+February+1,+2012).>Google Scholar
See Complaint, supra note 10, at 17.Google Scholar
Woodward, B., “Guantanamo Detainee Was Tortured, Says Official Overseeing Military Trials,” Washington Post, January 14, 2009.Google Scholar
“The fact that Dr. Leso may have possessed special knowledge gained through his education, training, and/or experience as a psychologist that made him useful to the military in developing interrogation techniques does not mean that Dr. Leso's conduct in that regard constituted the practice of psychology.” See OPD Response, supra note 13, at 2.Google Scholar
See OPD Response, supra note 13, at 3 (“I can only interpret the phrase 'modification of behavior for the purpose of … eliminating … undesired behavior' in the definition of the practice of psychology as referring to behavior undesired by one's patient, not behavior undesired by third parties.”); see also Respondents' Motion to Dismiss, supra note 17, at 21 (“The statutory language focuses on therapeutic, healing type activities. … Nothing in the statute remotely suggests that it extends to the type of activity alleged in this case – providing assistance for the aggressive interrogation of military detainees.”).Google Scholar
See OPD Response, supra note 13, at 2.Google Scholar
See Lewis, N. A., “Interrogators Cite Doctors' Aid at Guantánamo Prison Camp,” New York Times, June 24, 2005 (explaining the views of Bryan Whitman, a Pentagon spokesman, who “suggested that the doctors advising interrogators were not covered by ethics strictures because they were not treating patients but rather were acting as behavioral scientists”), available at <http://www.nytimes.com/2005/06/24/politics/24gitmo.html?pagewanted=all> (last visited February 1, 2012); see also Bloche, M. G. Marks, J. H., “When Doctors Go to War,” New England Journal of Medicine 352, no. 1 (2005): 3–6, at 3 (describing Dr. David Tornberg's, Deputy Assistant Secretary for the Defense for Health Affairs, views: “Physicians assigned to military intelligence, he contended, have no doctor-patient relationship with detainees and, in the absence of life-threatening emergency, have no obligation to offer medical aid.”)Google Scholar
Memorandum of Law in Support of Petitioner's Verified Petition, at 6, available at <http://www.cja.org/downloads/reisner%20v%20catone%20memorandum%20of%20law.pdf> (last visited February 1, 2012) [hereinafter cited as Memo in Support of Verified Petition]. In response to Dr. Resiner's argument that even if the statute did require that relationship (a point he disputes), the detainees were Dr. Leso's patients under the meaning of the statute, the OPD claimed that this “def[ed] … reality – They were suspected terrorists. … Dr. Leso obviously was not acting as … counselor, therapist or health care provider when his alleged role was to devise ‘harmful and abusive psychological techniques.’” See Respondents' Motion to Dismiss, supra note 17 at 19 (citing Verified Petition ¶19). (last visited February 1, 2012) [hereinafter cited as Memo in Support of Verified Petition]. In response to Dr. Resiner's argument that even if the statute did require that relationship (a point he disputes), the detainees were Dr. Leso's patients under the meaning of the statute, the OPD claimed that this “def[ed] … reality – They were suspected terrorists. … Dr. Leso obviously was not acting as … counselor, therapist or health care provider when his alleged role was to devise ‘harmful and abusive psychological techniques.’” See Respondents' Motion to Dismiss, supra note 17 at 19 (citing Verified Petition ¶19).' href=https://scholar.google.com/scholar?q=32+Memorandum+of+Law+in+Support+of+Petitioner's+Verified+Petition,+at+6,+available+at++(last+visited+February+1,+2012)+[hereinafter+cited+as+Memo+in+Support+of+Verified+Petition].+In+response+to+Dr.+Resiner's+argument+that+even+if+the+statute+did+require+that+relationship+(a+point+he+disputes),+the+detainees+were+Dr.+Leso's+patients+under+the+meaning+of+the+statute,+the+OPD+claimed+that+this+“def[ed]+…+reality+–+They+were+suspected+terrorists.+…+Dr.+Leso+obviously+was+not+acting+as+…+counselor,+therapist+or+health+care+provider+when+his+alleged+role+was+to+devise+‘harmful+and+abusive+psychological+techniques.’”+See+Respondents'+Motion+to+Dismiss,+supra+note+17+at+19+(citing+Verified+Petition+¶19).>Google Scholar
Id., at 9–10.Google Scholar
Memorandum of Law in Opposition to Respondents' Cross-Motion To Dismiss The Verified Petition, at 14, available at <http://www.cja.org/downloads/Response%20MTD%202.1.pdf> (last visited February 1, 2012) [hereinafter cited as Memo in Opposition to Motion to Dismiss]. (last visited February 1, 2012) [hereinafter cited as Memo in Opposition to Motion to Dismiss].' href=https://scholar.google.com/scholar?q=35+Memorandum+of+Law+in+Opposition+to+Respondents'+Cross-Motion+To+Dismiss+The+Verified+Petition,+at+14,+available+at++(last+visited+February+1,+2012)+[hereinafter+cited+as+Memo+in+Opposition+to+Motion+to+Dismiss].>Google Scholar
Court Transcript of Oral Argument at 5:21–26, available at <http://www.cja.org/downloads/No.%2013.reisner%20v.%20catone.oral%20arg%20transcript.04.06.11.pdf> (last visited February 1, 2012) [hereinafter cited as Court Transcript].+(last+visited+February+1,+2012)+[hereinafter+cited+as+Court+Transcript].>Google Scholar
See Respondents' Motion to Dismiss, supra note 17, at 19.Google Scholar
Reisner v. Catone, 929 N.Y.S.2d at 406 (citing Roberts v. Health & Hosps. Corp., 928 N.Y.S.2d 236, 242 (1st Dep't. 2011) quoting New York State Assn. of Nurse Anesthetists v. Novello, 2 N.Y.3d 207, 211 (2004)).Google Scholar
See Memo in Opposition to Motion to Dismiss, supra note 35, at 16.Google Scholar
See Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 778 (1991) (holding that a plaintiffs must show a “cognizable injury” that is “different in kind or degree from the public at large.”)Google Scholar
See Respondents' Motion to Dismiss, supra note 17 at 11–14.Google Scholar
Id., at 11.Google Scholar
Matter of Hebel v. West, 25 A.D.3d 172, 176 (3d. Dept. 2005). See also Memo in Opposition to Motion to Dismiss, supra note 35 at 18 (“Individual citizens have standing to sue despite the absence of strict injury in fact ‘where the matter is one of general public interest.’”) (citing Police Conference of N.Y. v. Municipal Police Training Council, 405 N.Y.S.2d 511, 512 (3d Dept 1978)).Google Scholar
See Memo in Opposition to Motion to Dismiss, supra note 35, at 18.Google Scholar
See Respondents' Motion to Dismiss, supra note 17, at 14.Google Scholar
Resiner v. Catone, 929 N.Y.S.2d at 409.Google Scholar
See Huggins, A. W., “APA Wants James Mitchell, Psychologist Who Helped CIA Torture, Stripped of His License,” Huffington Post, July 10, 2010, available at <http://www.huffingtonpost.com/2010/07/10/apa-wants-james-mitchell-_n_641961.html> (last visited February 1, 2012).+(last+visited+February+1,+2012).>Google Scholar
Harvard International Human Rights Clinic Blog Website, “Larry James, Psychologist,” available at <http://harvardhumanrights.wordpress.com/criminal-justice-in-latin-america/u-s-health-professionals-involved-in-torture/psychologists/larry-james-psychologist/> (last visited February 1, 2012).+(last+visited+February+1,+2012).>Google Scholar
See, e.g., Letter from Carolyn Knauss, Investigator to Beth Collins (January 26, 2011) available at <http://harvardhumanrights.files.wordpress.com/2011/04/james-letter3.pdf> (last visited February 1, 2012). See also “Texas Will Not Discipline CIA Psychologist Despite ‘Thousands of Pages of Evidence,’” Pysch Crime Report, February 28, 2011, available at <http://psychcrimereporter.wordpress.com/2011/02/28/texas-will-not-discipline-cia-psychologist-despite-thousands-of-pages-of-evidence/> (last visited February 1, 2012).+(last+visited+February+1,+2012).+See+also+“Texas+Will+Not+Discipline+CIA+Psychologist+Despite+‘Thousands+of+Pages+of+Evidence,’”+Pysch+Crime+Report,+February+28,+2011,+available+at+
See Court Transcript, supra note 37, at 24.Google Scholar
See generally Sanctions for Torture: Domestic Medical Associations Take Action, supra note 3.Google Scholar