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Medical Experimentation on Detainees

In a review of The Torture Papers—a collection of investigations by Physicians for Human Rights (PHR)—Professor Steven Vladeck says that medical personnel’s involvement in the interrogation of CIA detainees might have been of the nature of experimentation.

The report purports that doctors could have been used as a legal shield—that the DOJ Office of Legal Counsel reasoned that medical personnel could ensure that so-called “enhanced interrogation” techniques did not cross the threshold of “severe physical and mental pain.”

However, the PHR report says that physicians were doing more than simply observing, they were collecting data from interrogations, then analyzing that and “sought to derive generalizable inferences to be applied to subsequent interrogations.”  Such action, Vladeck says, could rise to the level of war crimes or crimes against humanity, regardless of whether the interrogation techniques themselves were legal or illegal.  That is, regardless of whether the interrogations rose to the level of torture, both domestic and international law prohibits medical experimentation on prisoners or detainees.

The Common Rule prohibits research without the consent of the subject.  And the Nuremberg Code—the genesis of which was the U.S.-led Nuremberg trial of Nazi doctors—makes medical experimentation that has no “fruitful results for the good of society,” and is conducted without “the voluntary consent of the human subject” a war crime.

Since almost all information surrounding the CIA interrogation program remains classified, “it would be imprudent to speculate on what specifically happened, or who may actually be liable,” Vladeck’s post says.  He continues, “The larger point, though, is that these charges only reinvigorate a point that I’m neither the first nor last to make:  We still don’t know what we don’t know about the EITs, about who was behind them, and about how they were implemented.  Thus, this Report is not about the well-worn debate over whether or not torture was committed, or, alternatively, whether individual techniques constituted ‘torture.’  Regardless of the legality of the individual interrogation techniques, any non-consensual medical experimentation would have been against both federal and international law.”

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