The concept of “divided loyalties” is an inherently perverse one, suggesting that loyalty is negotiable and never trustworthy. This is how many Americans felt about the Japanese-Americans in World War II, and is why Japanese were confined in concentration camps, even though there was no evidence that they were disloyal to the United States.1 The terms “divided loyalty” and “dual loyalty” were used as a rationalization for taking action against them. Something similar is going on when this term is deployed to describe physicians in the United States military: that they have divided or dual loyalties because they face inherent conflicts between their obligations as physicians and their obligations as military officers. My own view is that this is simply false; the entire rationale for having a military medical service is to provide the best medical care possible to the U.S. military—and that such care can only be provided if soldiers trust military physicians to follow medical ethics without exception.2
Military commanders in charge of prisons do, however, attempt to use military physicians for nonmedical, security purposes. In this regard, it is more analytically useful to think about this as a case of “dual use,” in the same sense that medically beneficial products and processes can also be used as weapons to harm people. Physicians, both military and civilian, can also make “dual use” of people when practicing medicine: treating them for their medical condition, and thus as a patient, but also using them as research subjects to test a hypothesis. It is also possible that military physicians could find themselves confronted by both types of dual use; for example, ordered to experiment on their patient-prisoners by their superiors. Thus, it makes sense when reviewing attempts to make dual use of military physicians in prisons that we simultaneously look at the dual use of prisoners—as patients and research subjects—that some physicians propose themselves.3
The primary places where dual use of military physicians has occurred is in the post 9/11 prisons at Bagram Air Force Base, Abu Ghraib, and Guantánamo.4 The first two have been renamed in an unrealistic attempt to rehabilitate them.5 Guantánamo, however, seems likely to stay open and functioning with its original name indefinitely. 6 The role of military physicians there is doubly complicated by the fact, recognized by the U.S. Department of Defense, that the continued force feeding of competent hunger strikers at Guantánamo is a direct violation of medical ethics as articulated by the World Medical Association (WMA) and the American Medical Association.7 This situation (officially requiring military physicians to ignore medical ethics precepts) is unique in American military history, and one that I have written about before.8 In this chapter, I will say more about hunger strikes at Guantánamo, but I will also examine another duality, refuting the claim that military prison at Guantánamo, and the dual use of physicians there, is so unique that it should be seen as an aberration in the American justice system, rather than as a mirror image of the worst aspects of U.S. mainland prisons. The way wardens, physicians, expert commentators, and the courts have justified nonmedical and coercive acts by physicians is bizarre enough to cause vertigo, and this helps explain my title for this chapter. And because the anti-prisoner actions seem to me to be entirely consistent with America’s view of the dangerousness of its large prison population, “American vertigo” seems appropriate as well.
American Vertigo is also the title French philosopher and journalist, Bernard-Henri Levy, gave to his observations of America that he made after retracing the footsteps of Tocqueville.9 Like a leading U.S. expert group that championed doing more medical research on prisoners—the Institute of Medicine’s (IOM) Committee on Prisoner Research (Committee)10—Levy began his journey in 2005. This was four years after 9/11 and the commencement of our “global war on terror,” and three years after Guantánamo was opened. The centerpiece of this war has been to capture would-beterrorists and interrogate them in our greatly expanded global prison system, especially, as previously noted, in Afghanistan, where the most infamous was Bagram Air Force Base; in Iraq, which featured Abu Ghraib; and in Cuba, which features Guantánamo. At all of these prisons, the Central Intelligence Agency and the American military have inflicted tortuous acts and cruel and degrading treatment on prisoners.11 At home, the U.S. prison population continues to grow, and the United States has set a new world-record in terms of the percentage of the civilian population in prison.12
In March 2011, President Barack Obama, reversing his promise and position that he would close the prison in Guantánamo Bay, decided instead to reinitiate military trials there and keep the prison open indefinitely.13 The reason the President originally pledged to close Guantánamo was his belief that it was a uniquely horrible prison, “quite simply a mess, a misguided experiment.”14 He is not the only one to refer to Guantánamo as an experimental prison. A Senate investigation found that commanders at the prison often referred to it as “America’s Battle Lab” where untested methods of interrogation, which were to some degree experimental, were tried out.15 I have also previously suggested that the use of “restraint chairs” by the medical staff at the prison to break the 2005–06 mass hunger strike there could also be seen as “experimental,” since they had never before been used for this purpose.16 In this chapter, I will use this “experimental” designation to explore the question of whether the President was right initially to see Guantánamo as an aberration of American justice and the American prison system, or whether Guantánamo is more properly seen as a logical extension of the American prison system, as Levy maintained, and as President Obama now seems to accept as well. I will approach this question by examining in some depth an IOM report on human experimentation in American prisons issued during the Bush administration, with a view to determine how Guantánamo “fits” into the landscape of American prisons, American justice, and American research.
The IOM Prison Research Committee
The IOM Committee described its charge: “to examine whether the conclusions reached by the national commission [National Commission for the Protection of Subjects of Biomedical and Behavioral Research] in 1976 remain appropriate today.”17 There was no identification of any major problems with prison research in the United States that would have provided a framework for the committee’s work.18 Instead, the structure was to consider changes in prisons and medical research that might lead to a reconsideration of existing rules, and to suggest an approach that would permit more research on prisoners. To oversimplify somewhat, the committee’s report follows a syllogism:
- Research is beneficial.
- Prisoners should have access to that which is beneficial.
- Therefore prisoners should have (more) access to research.
A parallel syllogism seems to have been applied at Guantánamo in response to the hunger strikes:
- Hunger striking risks the prisoner’s life.
- Physicians should prevent prisoners from risking their lives.
- Therefore, physicians should prevent prison hunger strikes.
Both syllogisms have problems. The primary one with the first syllogism is that it conflates research with treatment (usually woefully inadequate in prisons), thereby making a dual use seem like a single use. The same is true of the second syllogism, where force-feeding hunger strikers is equated with medical treatment. But there are others: prisoners are not granted all the benefits of free living people, and prisoners are uniquely situated in ways that compromise their autonomy and make voluntary consent especially problematic.
But even this syllogism structure is grossly oversimplified, as the IOM report itself provides support for almost every position one might have to either promote or restrict research on prisoners. Most often, the goal is stated as expanding research on prisoners, but at other times the stated goal is to protect prisoners from exploitation.19 Sometimes informed consent is seen as too important in current regulations and replaceable, other times it is seen as central and nonnegotiable.20 Sometimes prisons are seen as the new mental health institutions; other times the as yet unadopted regulations on research on the mentally disabled are viewed as irrelevant in the prison setting.21 Children are excluded from the analysis, but the children’s research regulations are sometimes viewed as a model for changing the prisoner regulations.22 No specific language is ever suggested as to how the current prisoner regulations might be modified.
How did the Committee adopt such a confused and internally inconsistent report? My own view is that by abstracting the issue of research on prisoners from the questions of how they became prisoners, why we have more prisoners per capita than any country in the world, why African Americans and Hispanics are so overrepresented in prisons, and what the impact of the global war on terror is on our view of prisoners and their rights, the entire exercise became so disconnected from the real world that it could produce no useful public policy recommendations. As will be addressed later, similar observations apply to breaking the hunger strikes at Guantánamo.
The definition of prisoner is the central issue in any discussion of research on prisoners. The Committee knows this, but nonetheless insists on expanding the definition of “prisoner” from the current one that includes those “involuntarily confined or detained in a penal institution” to include an additional five million non-prisoners (unconfined people on probation and parole).23 This begs the question of why we should have separate rules for prisoners at all (if not because their involuntary confinement makes voluntary consent extremely unlikely), and why we should not just include all potential research subjects under the term “prisoner”? This is the central conceptual problem with the IOM’s report.
Two more concrete operational problems undermine the report’s credibility. The first is that while expanding the definition of prisoner radically, the report simultaneously contracts it by excluding from consideration not only children and involuntarily confined mental patients, but also prisoners held under the U.S.A. Patriot Act.24 The report did not specifically exclude Guantánamo and Abu Ghraib, but nonetheless fails to even mention these two American prisons.25 The second concrete problem with the report is its internal incoherence. There are, for example, only two chapters devoted to “ethics,” and these often read as if they were written by two separate committees (or study directors) that had fundamental disagreements. The report really does induce vertigo. Each of the two major operational flaws merits discussion.
American Prisons at Home and Abroad
Writing a report about research on prisoners without acknowledging the increasing role of prisons and mistreatment of prisoners can only paint a partial picture. By far the most famous prison in the world is Guantánamo Bay, and the most infamous prison in the world is Abu Ghraib. This was also true when the Committee was working on their report.
How is it possible that an IOM committee on the ethics of prison research could proceed as if these prisons did not exist? It was, of course, Bush Administration doctrine that “we do not torture,” that Abu Ghraib was the result of a few bad apples on the night shift, and that Guantánamo only holds the “worst of the worst” and is necessary to prevent another 9/11.26 But IOM study committees should proceed from science and data, not from the political ideology of the administration in power. Nonetheless, these prisons were so central to the Bush Administration’s view of what is and is not acceptable to do to prisoners (both under domestic and international law) that it would be unthinkable to prepare a report on U.S. research on prisoners without at least mentioning, if not analyzing, them.27
The Committee’s chairman, Professor Lawrence Gostin, seems to agree with this assessment. In a summary of the report for the readers of the Journal of the American Medical Association, written in the wake of criticisms of the report, he wrote that “[t]he IOM report recounted the painful history of medical mistreatment in the Tuskegee syphilis trials and Holmesberg prison, as well as prisoner abuse at Guantánamo Bay and Abu Ghraib.”28 I do not believe that Professor Gostin meant to intentionally misrepresent his Committee’s report to an audience of physicians unlikely to ever read the report itself. Rather, I think he was simply reflecting his view that the report would have no legitimacy if it did not include reflection on these prisons; therefore, it must have included them, even though it did not. But there is a logical and reasonable rationale for either not treating Guantánamo at all or treating it as an afterthought: the IOM Committee members really did see Guantánamo as nothing special or different than other U.S. prisons, and thus did not see it as necessary to make any specific comments on it.
Gostin also mentions Nuremberg, Holmesberg prison, and Tuskegee. The latter, of course, did not involve research on prisoners, but on free-living African Americans. It is nonetheless relevant because of its racism, which is mirrored in the American prison population, which is disproportionately comprised of African American males found guilty of drug-related crimes.29 Racial disparities in medicine are now widely condemned, but grossly disproportionate racial distributions in prisons seem well accepted. The IOM report reflects this view. The Committee recognizes the incredibly disproportionate numbers of African Americans and Hispanics in our prisons, but the report never addresses the issue or makes any suggestions of why it might matter, even concerning virtually all-African American prisons like Holmesberg.30
The Nuremberg Code and International Law
Using Tuskegee as a cipher to represent racial injustice without actually dealing with the problem of race may have made it seem reasonable to use Nuremberg as a cipher as well and to ignore its meaning. The Committee writes simply that “[t]he commission’s [National Commission] deliberations took place against a background that included the Nazi experiments with concentration camp prisoners followed by the adoption of a stringent standard of voluntary consent in the Nuremberg Code.”31 There is no discussion of what research was actually conducted by Nazi physicians in the concentration camps, of the prosecution of these physicians by American prosecutors to a court composed of American judges, or of the rationale for the Nuremberg Code and its direct application to the American military, American prisoners, and American researchers. Instead, the Committee seems to view the Nuremberg Doctors’ Trial and its resultant Nuremberg Code as an historical anomaly rather than as the foundational ethical and legal text for the worldwide regulation of all experimentation on humans.32