Laying the Groundwork for a Defense against Participation in Torture?

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Dec 10, 2007
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Laying the Groundwork for a
Defense against Participation
in Torture?

by Matthew K. Wynia

policy & politics

12 HASTINGS CENTER REPORT January-February 2008
merely by declining to torture our captives,
but by treating them with humanity
and dignity—and the policy has had
good results.12
But since 2001, the rather straightforward
understanding of what constitutes
torture has been, dare I say, tortured
by the Bush administration and its
Department of Justice. The details of
the administration’s wrangling about redefining
torture are beyond the scope of
this essay because—regardless of what
other techniques might or might not be
allowed under varying definitions of “severe”
pain and suffering, or whether
they meet standards for “cruel, inhuman
or degrading” treatment—waterboarding
has long been a clear-cut case. As
Senator John McCain bluntly noted, “It
was used in the Spanish Inquisition. It
was used in Pol Pot’s genocide in Cambodia.
. . . It is not a complicated procedure.
It is torture.” In 1983, a Texas
sheriff was sentenced to ten years in
prison for subjecting prisoners to “water
torture” to obtain confessions (this entailed
“placement of a towel over the
nose and mouth of the prisoner and the
pouring of water in the towel until the
prisoner began to move, jerk, or otherwise
indicate that he was suffocating
and/or drowning.”).13 When a U.S. soldier
was photographed using waterboarding
in 1968 on a North Vietnamese
soldier, it reportedly sparked an
Army investigation.14 In 1947, we successfully
prosecuted Japanese officers for
waterboarding.15 As far back as the 1898
Spanish-American War, U.S. soldiers
were court-martialed for using the
“water cure” to question Filipino guerrillas.
This long history is one reason why
Senators were taken aback when attorney
general nominee Judge Michael
Mukasey refused to acknowledge that
waterboarding is torture. But they
should not have been. With approvals
for waterboarding allegedly extending to
the highest reaches of the administration,
one can understand his reluctance
to label it as torture. What some people
might not realize is that his refusal was
not just a matter of serving notice that
he would not prosecute waterboarding
under U.S. federal law—that option
had already been, for all practical purposes,
precluded by passage of the Military
Commissions Act of 2006, which
explicitly granted immunity to prosecution
under the federal War Crimes Act
to anyone who followed administration
advice regarding interrogations.17 Instead,
it was a necessary step to establishing
a possible defense against participation
in torture under civil and, perhaps
more importantly, international
law. Because, as George Annas puts it,
“no one country (even the US) can
make or change international law,”18 the
United States cannot pass a law granting
immunity for torture, and the president
cannot pardon those who participate in
it. Instead, to avoid guilty verdicts in any
future international tribunal, the president
must do two things: try to avoid
such trials to begin with and, if that fails,
be ready to mount a plausible defense.
Since the victor generally sets the
terms of postwar tribunals, avoiding an
international tribunal will probably be
much easier than crafting a plausible defense,
since the latter are extremely limited.
One defense is that the participant
was acting under duress. As the Nuremberg
trials established, however, it is not
enough to say that one was ordered to
do something illegal; one must have had
no meaningful choice in the matter—
that is, there must have been no “moral
choice” available. The charter of the
Nuremberg tribunals famously reads:
That a soldier was ordered to kill or
torture in violation of the international
law of war has never been recognized
as a defense to such acts of
brutality, though, as the Charter
here provides, the order may be
urged in mitigation of the punishment.
The true test, which is found
in varying degrees in the criminal
law of most nations, is not the existence
of the order, but whether
moral choice was in fact possible.
. . . A soldier could be relieved of
personal responsibility for the soldier’s
acts only if the soldier could
show that he or she did not have a
moral choice to disobey his or her
superior’s oders.19
In the case of medically monitoring
waterboarding, this defense would certainly
fail. U.S. physicians could not
claim to have had no choice but to follow
illegal orders to medically monitor
waterboarding. Although they have not
yet come forward publicly, presumably
many physicians, like many other military
professionals, have refused to go
along with various abuses of detainees,
and none have been formally punished
for following ethics and the law in this
regard. This is not to underestimate the
weight of informal punishments that
can befall those who blow the whistle on
official wrongdoing. Military lawyers
have effectively ruined their careers by
zealously representing detainees, and the
Abu Ghraib whisleblower has been
forced to live under military protective
custody.20 But this level of coercion does
not rise to the level of precluding a
moral choice.
Another potential defense is called a
“mistake of the law” or a “good faith interpretation
of the law” defense. This
seems to be where the administration is
putting its efforts. The idea is that, “If
the illegality of the order was not known
to the inferior, and he could not reasonably
have been expected to know of its
illegality, no wrongful intent necessary
to the commission of a crime exists and
the inferior will be protected.”21 The
way to support this defense is to promote
the notion that there is actually
legal uncertainty about the status of waterboarding;
only a highly trained lawyer
with detailed knowledge of the technique
could possibly know if and when
it constitutes torture. Whether this defense
will work is, of course, uncertain.22
In some ways, Judge Mukasey has
been surprisingly open about this. He
wrote, for example, “I would not want
any uninformed statement of mine
made during a confirmation process to
present our own professional interrogators
in the field . . . with a perceived
threat that any conduct of theirs, past or
present, that was based on authorizations
supported by the Department of
Justice could place them in personal
legal jeopardy.”23 According to Scott L.
Silliman, an expert on national security
law at Duke University School of Law,
January-February 2008 HA S T INGS CENT E R R E POR T 13
any international tribunal would pursue
not just those who carried out and monitored
waterboarding, but those who
“approved it,” theoretically “all the way
up to the president of the United
States.”24 This may also explain why the
president has been laying the groundwork
for his own defense on these same
grounds. In 2006, on the Today show,
the president defended his approvals of
coercive interrogations by deferring to
his lawyers’ expertise, saying, “We had
lawyers look at it and say, ‘Mr. President,
this is lawful.’ That’s all I can tell you.”25
So that’s the legal defense, as I understand
it. Ignorance of the law might be
an excuse, if the law is murky enough.
For professional ethics, however—for
doctors who might have monitored the
waterboarding of detainees—this cannot
possibly suffice. Ignorance of the
law among doctors is certainly plausible.
But given the history and prominence of
the Nuremberg doctor trials, the fundamental
tenets of medical ethics—in particular,
“First, do no harm”—and the
obligation of physicians to understand
both, it would be unacceptable for
physicians to claim ignorance of medical
ethics around any abuse of prisoners, let
alone abuse that rises to the level of torture.
Physicians simply cannot use their
medical knowledge and skills to hurt
What should the medical profession
do about this? Because participation in
abusive interrogations would constitute
such an egregious violation of medical
ethics, and since the likelihood of an international
tribunal being formed is
probably low, it is my personal view
(which, I hasten to add, appears not yet
to be shared by most U.S. physicians27)
that the medical profession should not
wait for the international community to
investigate the possibility of U.S. physician
involvement in torture. Instead, the
best, fastest, and perhaps only way to restore
the credibility and moral leadership
of U.S. medicine is for the profession
to undertake its own, independent
investigation. Even if the law were truly
unclear, medical ethics in this regard is
not: participation in waterboarding
would be blatantly unethical. Under an
independent investigation into breaches
of ethics—not law—the “mistake of the
law” excuse that Mr. Mukasey seems intent
to help establish would be irrelevant.
The views expressed are those of the author
and should in no way be ascribed to
the American Medical Association.
1. M. Nance, “Waterboarding Is Torture . . .
Period,” Small Wars Journal blog, October 31,
2. Testimony of German General Wilhelm
Keitel during the Nuremberg trials, quoted in
G.J. Annas, “Human Rights Outlaws: Nuremberg,
Geneva, and the Global War on Terror,”
Boston University Law Review 87 (2007): 427-
66; at 431.
3. J.M. Arrigo, “A Utilitarian Argument
against Torture Interrogation of Terrorists,” Science
and Engineering Ethics 10, no. 3 (2004): 1-
4. Testimony of German General Wilhelm
Keitel, quoted in Annas, “Human Rights Outlaws.”
5. M.K. Wynia, “Consequentialism and
Harsh Interrogations,” American Journal of
Bioethics 5, no. 1 (2005): 4-6.
6. Doctors involved in the SERE training
might face some ethical challenges, but they are
hardly insurmountable. The ethical dilemmas
confronted by doctors of professional athletes
can be analogous. People often voluntarily undertake
significant risks in their work, especially
in the military; a doctor serving individuals
doing dangerous work is obliged to try to minimize,
but not eliminate, those risks.
7. D. Ephron and M. Isikoff, “Drowning in
Questions,” Newsweek, November 3, 2007;
8. Memorandum from Donald Rumsfeld to
Commander, U.S. Southern Command,
“Counter-Resistance Techniques in the War on
Terrorism (April 16, 2003),” in K.J. Greenberg
and J.L. Dratel, eds., The Torture Papers: The
Road to Abu Ghraib (Cambridge, U.K.: Cambridge
University Press, 2005), 364.
9. N.A. Lewis, “Red Cross Finds Detainee
Abuse in Guantanamo: U.S. Rejects Accusations,”
New York Times, November 30, 2004.
10. Annas, “Human Rights Outlaws.”
11. S. Horton, “A Tale of Two Georges”;
screen (accessed November 10, 2007).
12. P. Dvorak, “Fort Hunt’s Quiet Men
Break Silence on WWII: Interrogators Fought
‘Battle of Wits,’” Washington Post, October 6,
13. E. Wallach, “Waterboarding Used To Be
a Crime,” Washington Post, November 4, 2007.
14. W. Pincus, “Waterboarding Historically
Controversial: In 1947, the U.S. Called It a
War Crime; In 1968, It Reportedly Caused an
Investigation,” Washington Post, October 5,
15. H. Hertzberg, “Hearts and Brains,” New
Yorker, November 6, 2006, 45.
16. Wallach, “Waterboarding Used To Be a
17. Annas, “Human Rights Outlaws,” 460.
18. G. Annas, personal communication,
November 9, 2007.
19. France et al. v. Goering et al. 1946 22
IMT 203, quoted in Annas, “Human Rights
Outlaws,” at 466.
20. “The Cost of Doing Your Duty” (editorial),
New York Times, October 11, 2006; “Abu
Ghraib Whistleblower: ‘I Lived in Fear,’”
CNN Anderson Cooper blog, August 15,
whistleblower-i-lived-in.html (accessed
November 10, 2007).
21. Trials of War Criminals before the
Nuremberg Military Tribunals under Control
Council No. 10, 1946-1949, vol. XI (1950),
1236; quoted in L.N. Norene, “Obedience to
Orders as a Defense to a Criminal Act,” thesis
presented to the Judge Advocate General’s
School, U.S. Army, March 1971, 50, footnote
59; at
22. George Annas and Leonard Rubenstein
both say it would provide little or no defense in
an international war crimes case. G. Annas,
personal communication, November 9, 2007;
L. Rubenstein, personal communication, November
20, 2007.
23. S. Shane, “Nominee’s Stand May Avoid
Tangle of Torture Cases,” New York Times, November
1, 2007.
24. Ibid.
25. Today, September 11, 2006; quoted in
Annas, “Human Rights Outlaws.”
26. AMA Council on Ethical and Judicial
Affairs, “Physician Participation in Interrogations,”
Report 10, A-06, http://www.amaassn.
06.pdf, accessed December 4, 2007.
27. At the AMA’s Interim Meeting in November
2007, a resolution calling for a Congressional
investigation was debated but not
adopted. Its original text can be found at
mm/469/002i07.doc, accessed December 4,

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