Medical Malpractice

by hilzoy and Katherine

(This is the second in a series of posts addressing specific arguments and statements that Senator Lindsey Graham made in the floor speech in support of his amendment ending habeas for Guantanamo detainees.)

“Can you imagine Nazi prisoners suing us about their reading material? Two medical malpractice claims have come out of this…. Never in the history of the rule of law of armed conflict has an enemy combatant, POW, person who is trying to kill U.S. troops, been given the right to sue those same troops for their medical care"—Senator Lindsey Graham.

Senator Graham seems to imply here that these are garden variety, probably frivolous, malpractice claims.

I don’t know what legal claims or cases he’s referring to, so I can’t speak to that—there may be frivolous claims. If so I doubt the courts will have much trouble throwing them out.

But there may have been real reasons for detainees at Guantanamo to complain about their medical care to the courts. There have been credible reports of medical care for severe injuries being withheld as an interrogation technique, and of doctors and psychologists assisting with abusive interrogations.

Jane Mayer has reported in the New Yorker that “a number of medical and scientific personnel working at Guantánamo—including psychologists and psychiatrists—are not providing care for detainees. Rather, these ‘non-treating’ professionals have been using their skills to ‘assist the interrogators.’”

Mayer continued,

People working in this advisory capacity are members of what are called Behavioral Science Consultation Teams, or bscts. Major General Geoffrey D. Miller—who commanded the Guantánamo Bay detention center between November, 2002, and March, 2004, and who was then sent by Secretary of Defense Donald Rumsfeld to manage Abu Ghraib prison, in Iraq—established a new role for health-care advisers. “These teams, comprised of operational behavioral psychologists and psychiatrists, are essential in developing integrated interrogation strategies and assessing interrogation intelligence production,” Miller explained in an internal report in September, 2003

She describes one particular interrogation that a BSCT doctor approved:

The logs show clearly that a bsct psychologist participated in the interrogation of [detainee Muhammad al Qahtani] and they reveal that, after three days of sleep deprivation, Qahtani became ill. A doctor was summoned, and the coercion stopped, but even then Qahtani was subjected to noise levels that kept him from sleeping. His heart rate dropped. A brain scan was performed. He was given an ultrasound, to check for blood clots; none were found. Stephen Xenakis, a psychiatrist and former brigadier general in the Army medical corps, questioned whether the doctors involved notified authorities about how ill the treatment was making Qahtani, as is required by virtually every code of medical ethics. In an e-mail, Xenakis told me, “The clinical picture indicates that the combined effects of the interrogation over December 4-7 contributed to significant physical and metabolic symptoms such that he required close cardiac monitoring. He is evaluated for ‘blood clots’ . . . which can be fatal.” Xenakis asked whether this carefully monitored interrogation, authorized at the top levels of the Pentagon, put “this patient in danger of dying.”

Long before Mayer wrote that article three English detainees, Shafiq Rasul, Asif Iqbal, and Rhuhel Ahmed, described the withholding of medical care as an interrogation technique.

On page 122 of the linked document (which is a very large PDF file) they state:

“[Mamdouh] Habib himself was in catastrophic shape – mental and physical. As a result of his having been tortured in Egypt he used to bleed from his nose, mouth and ears when he was asleep. We would say he was about 40 years of age. He got no medical attention for this. We used to hear him ask but his interrogator said that he shouldn’t have any. The medics would come and see him and then after he'd asked for medical help they would come back and say if you cooperate with your interrogators then we can do something.”

On page 124 they state:

Asif recollects that “another man who'd be taken to Egypt and tortured there, Saad Al Madini, was also refused medical assistance for the same reason [as Mamdouh Habib]. We know from Al Madini that he had had electrodes put on his knees and that something had happened to his knees and something had happened to his bladder and he had problems going to the toilet. He told us that when he was in interrogation he was told by interrogators that if he cooperated he would be first in line for medical treatment.

According to Burton J. Lee III, a former personal physician to George H. W. Bush and doctor in the Army Medical Corps:

"Reports of torture by U.S. forces have been accompanied by evidence that military medical personnel have played a role in this abuse and by new military ethical guidelines that in effect authorize complicity by health professionals in ill-treatment of detainees. These new guidelines distort traditional ethical rules beyond recognition to serve the interests of interrogators, not doctors and detainees."

And an assessment of DOD policies on doctors' participation in interrogations in the Journal of the American Medical Association finds that:

"while the UN principles forbid participation by health personnel in torture or ill treatment or harmful interrogations in violation of international standards, the DoD guidelines allow physicians to "assist in the interrogation of detainees" and to participate in the certification of the fitness for treatment or punishment so long as it is in accordance with "applicable law." (...) In an inquiry into allegations by US Federal Bureau of Investigation (FBI) agents regarding abuse of detainees at the Guantanamo Bay facility, Lt Gen Randall Schmidt determined that the following interrogation techniques were considered by the DoD to be humane and permitted by its interpretation of law: isolation for more than 5 months, sleep deprivation lasting 48 to 54 days during which interrogation took place 18 to 20 hours per day, degradation, sexual humiliation, military dogs to instill fear, and exposure to extremes of heat and cold and loud noise for long periods—and combinations of these techniques."

And it concludes:

"US military officials’ efforts to promulgate ethical guidelines that enable physician participation in coercive interrogation practices are inconsistent with international principles of medical ethics and, if unanswered by the medical community, establish a dangerous precedent."

As I said, I don't know what these lawsuits actually claim. But I wouldn't automatically assume there's nothing to them. And there’s a more general point here:

if it’s unusual to ask for the right for detainees to sue in the civilian courts, it’s in response to an unusual provocation. The President declared Guantanamo a law-free zone where we could do whatever we want to prisoners, including this. People wanted to stop him. They could hardly override his decision and order the military to follow Geneva. Their only recourse was to the federal courts, and habeas was the only way in the door.

I can’t imagine German POWs suing in federal court. I also can’t imagine President Roosevelt sending them to Stalin’s custody and then withholding medical treatment when they come back with severe injuries, or instructing army psychologists and doctors to draw up interrogation plans that exploit their weaknesses. But that is the brave new world we are living in.

Comments

[Francis / BRGORD]

what are you two doing up at this hour?

thanks for an utterly heartbreaking post.

anyone remember the movie "Marathon Man"? Lawrence Olivier plays a nazi dentist who uses his knowledge of dentistry to torture Dustin Hoffman. (ok, this post is a godwin violation. so i lose.)

how can it be that we have sunk so low that american doctors are using their medical training in the service of torture?

we have truly become that which we abhor.

[Andrew]

I used to admire your country. I hope I will again. This is beyond obscene.

Keep up the good fight people.

[Dianne]

The doctors involved are clearly violating medical ethics and should, at minimum, have their licenses revoked for deliberate, prolonged, and repeated breaking of the Hippocratic oath. That's in addition to civil and criminal penalties they should receive for behaving in a manner not consistent with being a decent human being.

BRGORD: There's a book titled (I think) "The Nazi Doctors" which discusses the role of medical personnel in KZ in detail. It's a frightening book, the moreso for being matter of fact about it. I recommend it if your interested in learning more about the psychology of misuse of medicine.

[liberal japonicus]

Perhaps now would be a good time to read The Sea and Poison by Shusaku Endo. Seems appropriate.

[Gary Farber]

"Lawrence Olivier plays a nazi dentist who uses his knowledge of dentistry to torture Dustin Hoffman."

If I might possibly be excused for a frivolous digression (I do blog rather a lot about torture issues, after all), I always thought that was a bit of genius by Goldman. After all, most people know that, secretly, their demtist actually is a Nazi torturer, if only truth be found out and told. Playing on that fear was brilliant.

(Also, we got the famous anecdote about Dustin Hoffman running around the block many times before a scene, so as to properly produce by the Method the required degree of exhaustion, since his character had been running all night; Olivier supposedly asked him what he was doing, and Hoffman explained; Olivier supposedly replied "my dear boy, why don't you try acting?") (A version of Hoffman's version is here.)

[hilzoy]

What were we doing up so late? In my case at least, being furious.

[Peter G]

I think Sen Graham's snide "malpractice" reference is probably not to the abuses you mention, which are awful enough certainly, but rather to the recent complaints by detainees' counsel that GTMO doctors were inserting feeding tubes into the noses and esophagi of hunger strikers without using the medically indicated muscle relaxers or local anesthetics.

[hilzoy]

Peter G: actually, at least one of the malpractice claims is on behalf of this detainee:

"An Egyptian-born teacher imprisoned at Guantanamo Bay, Cuba, for the past 3 1/2 years recently convinced the U.S. military that he is not an enemy combatant, but rather what he said he was: a pro-democracy English teacher swept up when the military seized fighters and suspected terrorists from the battlefields of Afghanistan.

In newly declassified records of statements to his attorney, Sami Al-Laithi said that as a result of his detention at the U.S. military prison at Guantanamo Bay, he is now confined to a wheelchair with two broken vertebrae. He said military personnel and interrogators stomped on his back, dropped him on the floor and repeatedly forced his neck forward soon after his arrival at the prison."

More details shortly.

[Katherine]

Note that Al-Laithi is no longer at Guantanamo--he was sent to Egypt. Fortunately he was taken to a hospital in Egypt rather than being imprisoned as was feared.

[Peter G]

Katherine: I don't understand your response. The mistreatment of al Laithi you describe was surely unlawful and could qualify as torture, but unless it has to do with how medical personnel treated or failed to treat his injuries after they were inflicted, it is not something that could be called "malpractice." Here's an October 20, 2005, AP story on the accusations that I referenced, btw.

[Katherine]

That was a response to hilzoy, not you--but al-Laithi did file a malpractice claim. A post clarifying this will be up shortly. You're right that some of the suits are also about the hunger strike stuff.

[hilzoy]

Sorry; forgot the crucial third para. from the article, about his being denied an operation needed to save him from paralysis. It's in the new post.

[Kristjan Wager]

There's a book titled (I think) "The Nazi Doctors" which discusses the role of medical personnel in KZ in detail. It's a frightening book, the moreso for being matter of fact about it. I recommend it if your interested in learning more about the psychology of misuse of medicine.

Dainne, I belive that the classic work on the subject is Alexander Mitscherlich & Fred Mielke's Doctors of Infamy - the Story of the Nazi Medical Crimes from 1949, but you might be thinking of Robert J. Lifton's The Nazi Doctors: Medical Killing and the Psychology of Genocide from 1986, which is also regarded as a key work on the subject.

[Edward]

How close to Josef Mengele's practices does this need to become before we make the obvious comparisons? Forget the Hypocratic oath and all that, where are they finding health care professionals who'll go along with this? This is so nightmarish:

military medical personnel have played a role in this abuse and by new military ethical guidelines that in effect authorize complicity by health professionals in ill-treatment of detainees

I want to wake up now. Please.

[WEL]

MAXIDEX WARNING

I had eye surgery and in the post-op pack was MAXIDEX(dexamethasone) drops by ALCON LABS.

Two days later I was BLIND

Use Google and enter EPOCRATES MAXIDEX to verify

[WEL]

MAXIDEX DEXAMETHASONE WArNING

I had eye surgery and in the post-op pack was MAIDEX(dexamethasone) drops by ALCON LABS.

Two days later I was BLIND

Use Google and enter EPOCRATES MAXIDEX REACTION to verify

Or call 800-757-9195