A Badly Broken (Ethical) Code: Thinking About Operational Medicine in a Post-9/11 USA

Since the infamous terror attacks on the United States of September 11, 2001, the US has been engaged in a protracted, haphazard, and complicated national conversation about the ethics of bodily treatment.  This discourse has encompassed many aspects of how the bodies of others are and should be treated, among them racial/ethnic profiling, mandatory body scans or searches, apprehension of suspected terrorists, the holding and treatment of prisoners, and, perhaps most vividly, interrogation and torture.  All of this has taken place in a time in which intense emotions of urgency, panic, xenophobia, and (nominally defensive) aggression have frequently gripped military leaders, legislators, and the public alike.  Almost all of the discussion, for reasons which are intimately connected with the emotional and urgent tenor of the times, has been reactive, that is to say, it has centered around revelations of ethical and human rights abuses born of the reactive “war on terror” declared by former President George W. Bush.   Amidst the headlines about waterboarding, “enhanced interrogation,” and the US’s global network of CIA “black sites” and military installations, however, are a set of crucial questions about the medical profession and its practitioners.  They center specifically around the use of medical knowledge as “intelligence” in the pursuit of the politically motivated mistreatment of human beings, most pointedly with regard to torture.

These are not new questions; no questions about medical involvement in the inhumane treatment of human bodies can be considered so at least since the Holocaust and subsequent Nuremburg trials.  But they are fiendishly persistent and seemingly resistant to resolution.  International agreements and professional regulation have demonstrably failed to consistently create positive ethical responses among medical providers in “intelligence” and military or “national security” settings.  New moves toward conceptualizing “operational” medicine and “dual loyalty” ethics are compromised from inception.  What, if anything, can bioethics take from all this that might help ameliorate this profoundly unsettling and evidently wicked dilemma?

Let us begin at the top, as most pieces on the topic in the bioethical literature do: the United States has both robustly ignored and baldly circumvented international diplomatic agreements and regulatory guidelines about the treatment of bodies, particularly those of detainees. Particularly since the George W. Bush administration, the United States’ military and intelligence organizations have openly flouted the Geneva Conventions, World Medical Assembly guidelines (Declaration of Tokyo), and the United Nations Convention against Torture in any number of ways.[1]  Not least of these has been the audacious sophistry of creating a new category for “war on terror” prisoners, “unlawful combatants,” deliberately creating a method by which (suspected) members of groups not signatory to international conventions and treaties  need not be treated by the terms of said agreements, thus removing the nominal barrier to human rights violations by medical personnel.[2]

Despite our shock at these revelations there is little percentage, from a bioethics standpoint, in rehashing the particulars; that train has already left the proverbial station.  Rather we might, in relation to this, consider the significant historical and political science literature on American exceptionalism and the century of precedent that begins with the Congressional refusal to permit the United States to become signatory to the League of Nations in the wake of World War I.  American violation of international human rights agreements is often compared to that of Nazi Germany, but as Michael Ignatieff argues, the pattern of U.S. refusal of international pacts has a longer history of its own that continues to inform present-day practice and thus warrants a deep critique.[3]  Applied bioethics exists in culturally and historically specific contexts, not in the convenient and supposedly universal vacuum of philosophical thought experiments, and clearly no amount of high-minded and well-intentioned international treatymaking can make it otherwise.  It seems reasonable in this arena to call on bioethics to expand its understanding of ways historical precedent shapes expectations of US participation in international agreements, and perhaps also influences a sense of indemnity, for some, in their nonparticipation.

The range of roles professional associations have played in this ongoing ethical failure similarly call on bioethicists to become cannier about Realpolitik.  While it is of course the job of bioethics to try to evaluate and maintain normative – which is to say ideal – visions and versions of how bodies will be treated by individuals and institutions, the bioethics literature that commented on the now-infamous 2005 American Psychological Association ethical guidelines betrays some troublesome lack of discernment on the part of some bioethicists.  To wit, although the problematically open-ended language of the APA’s 2005 ethical guidelines – created with the explicit input of important Department of Defense officials, as it turned out[4] — attracted the critique of a few ethicists such as Kenneth Pope and Thomas Gutheil, who blasted them as overly permissive and devoid of enforceable restrictions in the September 2008 Psychiatric Times.[5] Some, such as Harvard’s Mildred Solomon, went on the record describing the 2005 APA guidelines as “impressive” and “unambiguous.”[6]  On the heels of the 2015 Report to the Special Committee of the Board of Directors of the American Psychological Association: Independent Review Relating to APA Ethics Guidelines, National Security Interrogations, and Torture, which confirmed APA collusion with the Department of Defense to create loose ethical guidelines the Department of Defense could exploit,[7] one is left combing the acknowledgements footnotes of bioethics papers, working out the presence of factions within the ranks of commentators.[8]  This seems, particularly given the fact that as of January 2016 the Pentagon has asked the APA to reconsider its post-expose ban on the involvement of psychologists in “national security” interrogations, to call for a vastly heightened awareness and watchfulness on the part of bioethicists of the political and disciplinary pressures potentially and actually being placed on healthcare practitioners.[9]

Quis custiodiet ipsos custodies? becomes an even more important question for bioethicists in light of the developing literature on “dual loyalty.”  There are of course multiple ways in which loyalty to the nation-state may complicate loyalties to professional and international humanitarian ethics: emotion, fear, economics, simple expedience.  Dual loyalty scholarship, however, approaches this set of complications as if it were inevitable rather than an artifact of particular operations of the state.  “Operational” psychology and medicine, a new way of describing practitioners who work “in support of national security, public safety, and corrections,” takes dual loyalty and a related concept, “mixed agency” (having professional obligations to two or more entities simultaneously, such as a branch of the military and also the American Psychological Association) as its baseline.[10]  The presumption that such dilemmas will inevitably exist for practitioners is an artifact of the Second World War and its Cold War aftermath, the institutionalization of social science and medical authority as part of both military-industrial machine and the welfare state.[11]  Given that this is an arguable reality for many practitioners, it seems reasonable to ask bioethicists to critically include both the presumption of plural loyalties and the acknowledgement of dual loyalty’s potentially irreconcilable demands.  That this will inevitably generate criticisms of situational ethics cannot be helped, only clearly and uncompromisingly addressed: bioethics’ role as arbiter and provider of normative standards depends upon a willingness to aggressively seize that role in the face of acknowledged and explicated conflicted priorities.

 

 

[1] See e.g. M. Gregg Bloche and Jonathan Marks, “Doctors and Interrogators at Guantanamo Bay,” New England Journal of Medicine vol. 353 no. 1 (2005), 6-8; Peter Clark, “Medical Ethics at Guantanamo Bay and Abu Ghraib: The Problems of Dual Loyalty” Journal of Law, Medicine, and Ethics (Fall 2006), 570-580; Vincent Iacopino and Stephen Xenakis, “Neglect of Medical Evidence of Torture in Guantanamo Bay: A Case Series” PLoS Medicine 8(4) (2011) doi:10.1371/ journal.pmed.1001027; Steven Miles, “Medical Ethics and the interrogation of Guantanamo 063” American Journal of Bioethics vol. 7 no. 4 (2007), 5-11; Jerome Singh, “American Physicians and Dual Loyalty Obligations in the ‘War on Terror’” BMC Medical Ethics vol. 4 no. 4 (2003), DOI: 10.1186/1472-6939-4-4.

[2] Peter Clark, “Medical Ethics at Guantanamo Bay and Abu Ghraib: The Problems of Dual Loyalty” Journal of Law, Medicine, and Ethics (Fall 2006), 572.

[3] Michael Ignatieff, American Exceptionalism and Human Rights (Princeton: Princeton University Press, 2009).

[4] Michael McCarthy, “American Psychology Association Colluded with Pentagon and CIA to Protect Interrogation Program, Report Finds” The British Medical Journal 351 (July 2015), doi:10.1136/bmj.j3805.

[5] Kenneth Pope and Thomas Gutheil, response to “Detainee Interrogations: American Psychological Association Counters, but Questions Remain,” Psychiatric Times vol. 25 no. 10 (September 2008), 58-59.

[6] Mildred Solomon, “Healthcare Professionals and Dual Loyalty: Technical Proficiency is Not Enough,” MedGenMed vol. 7 no. 3 (2005), 14.

[7] David Hoffman, Danielle Carter, Cara Viglucci Lopez, et al., Report to the Special Committee of the Board of Directors of the American Psychological Association: Independent Review Relating to APA Ethics Guidelines, National Security Interrogations, and Torture (September 4, 2015).  Accessed at http://www.apa.org/independent-review/revised-report.pdf, October 30, 2016.

[8] To wit, Mildred Solomon thanks Stephen Behnke, sitting ethics director of the American Psychological Association at the time of the creation of the 2005 ethics guidelines, by name in one footnote. A footnote in Psychiatric Times, on the other hand, explains that Kenneth Pope resigned from the APA after the issuance of the 2005 guidelines after 29 years of membership, citing an inability to support the new guidelines in good conscience.

[9] James Risen, “Pentagon Wants Psychologists to End Ban on Interrogation Role” New York Times (online) January 24, 2016.  Accessed at http://www.nytimes.com/2016/01/25/us/politics/pentagon-wants-psychologists-to-end-ban-on-interrogation-role.html?partner=bloomberg October 28, 2016.

[10] Carrie Kennedy and Thomas Williams, eds., Ethical Practice in Operational Psychology: Military and National Intelligence Applications (Washington, D.C.: American Psychological Association, 2011)

[11] Timothy Jeffrey, Robert Rankin, and Louise Jeffrey, “In Service of Two Masters: The Ethical-Legal Dilemma Faced by Military Psychologists,” Professional Psychology: Research and Practice vol. 23 no 1 (1992), 91-95; Frederick McGuire, Psychology Aweigh: A History of Clinical Psychology in the United States Navy, 1900-1988 (Washington, D.C.: American Psychological Association, 1990).

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