IT IS 2004. You are a commissioned psychiatric officer in the U.S. Navy stationed at Guantánamo, where a hunger strike is raging among detainees. One detainee has refused food and water for three weeks, leading to vivid auditory hallucinations, listlessness, and occasional episodes of stupor throughout the day. You have been asked to offer your medical opinion as to whether the detainee can continue the hunger strike, given concerns over his impaired decision-making capacity. You are unsure, since he may no longer understand the risks and consequences associated with a hunger strike. Although they do not say it explicitly, commanding officers want you to declare him unable to provide informed consent in line with American government policy to prevent detainee deaths, whereas bioethicists and human rights officials want you to declare him able to provide informed consent since he originally acted out of conscience. Declaring him unable to provide informed consent perpetuates injustices against detainees, but declaring him otherwise jeopardizes your career since you refuse to comply with organizational expectations. What do you do?
It is 2006. You are a clinical psychologist who treats military officers and enemy suspects at Abu Ghraib. An intelligence officer has accessed the records of a suspect whom you have been treating for post–traumatic stress disorder following a raid on his family’s house. Your clinical progress note records that his psychological strengths include a “strong love of family and religion.” The officer has amassed enough evidence to believe that the suspect has high-value intelligence related to al-Qaeda in Iraq. Although the suspect is innocent, his cousin belongs to the organization. The officer enters the interrogation room as you observe through a one-way mirror. Using psychological information to his advantage, the officer threatens to abduct the parents and newborn daughter of the suspect’s cousin unless he provides the cousin’s current address. The suspect before you crumbles and sobs. You feel pulled in opposite directions. Human rights groups increasingly denounce the misuse of confidential patient information, but the American Psychological Association has yet to issue position statements. Not reporting the officer may enable him to further abuse provider-client privacy and destroy therapeutic alliances with other clients, but reporting the officer may lead to your dismissal. What do you do?
In 2004, stories on detainee abuse at the Abu Ghraib and Guantánamo Bay detention facilities began to circulate in the media. Military medical professionals have been accused of sharing detainee medical information with interrogators, raising alarms that detainee medications would be withheld or that mental and physical ailments could be exploited (Slevin and Stephens 2004). Physicians have been accused of falsifying death certificates to claim that detainees killed during interrogations died from natural causes (Contenta 2004; Hotakainen and Marcotty 2004). Physicians have also been accused of supervising “enhanced interrogation” methods such as depriving detainees of sleep for up to one hundred and eighty hours, permitting confinement in small, dark rooms for eighteen hours a day, exposing detainees to cold air, and performing medical exams to clear detainees for simultaneous shackling to floors and ceilings (Rubenstein and Xenakis 2010). Psychologists have confiscated clothes, Qurans, and other personal possessions, stripping detainees to just undergarments, with items progressively returned to incentivize discipline (Gordon 2005). A policy statement dated August 6, 2002, from the United States Southern Command notified medical personnel to “convey any information concerning … the accomplishment of a military or national security mission … obtained from detainees in the course of treatment to non-medical military or other U.S. personnel who have an apparent need to know the information” (Talaga and Palmer 2005). In 2007, the Red Cross concluded that medical personnel participated in interrogations to support interrogators rather than to protect detainee lives based on statements with members of al-Qaeda (Shane 2009). In 2009, Physicians for Human Rights alleged that physicians associated with the Central Intelligence Agency may have exploited detainees in experiments on interrogation methods such as facial slapping, pushing heads against walls, confinement in boxes, and simulated drowning, also known as waterboarding (Pilkington 2009).
The U.S. Department of Defense has forcefully defended its medical officers. Officials have differentiated a treating physician’s duty to care for detainees from a medical consultant’s role to ensure that interrogators do not endanger detainee lives (Stephens 2005). Military officials have also responded that interrogations are ethical and detainees, as enemy combatants, are not covered under the Geneva Conventions (Lewis 2005b).1 In 2006, the military issued guidelines directing physicians to forcefully feed detainees at War on Terror facilities when their lives could be in danger (Waddington 2006).
Prominent bioethicists have condemned these actions and demanded consequences. For example, M. Gregg Bloche (2004) writes: “According to press reports, military doctors and nurses who examined prisoners at Abu Ghraib treated swollen genitals, prescribed painkillers, stitched wounds, and recorded evidence of the abuses going on around them. Under international law—as well as the standards of common decency—these medical professionals had a duty to tell those in power what they saw.” Here, “standards of common decency” and “international law” are depicted as compelling a duty to report abuses among military medical professionals.
Similarly, Bloche laments the passivity of military medical professionals who have “shamed us all” by not coming forward immediately. Canada’s National Post newspaper published an editorial calling for “the non-military medical community to unite in support of their military colleagues and condemn torture and inhumane and degrading practices against detainees” (Munro 2004). Robert Jay Lifton has criticized medical professionals for their cowardice in not reporting torture: “No doctor would have been physically abused or put to death if he or she tried to interrupt that torture. It would have taken courage, but it was a choice they had” (Ross 2004). The decision to report or not report torture is fashioned into a choice. After a tour of Guantánamo, former American Psychiatric Association president Steven S. Sharfstein raised concerns about military psychiatrists advising interrogation units known as Behavioral Science Consultation Teams (BSCT, pronounced “biscuit”): “Psychiatrists should not participate on these biscuit teams because it is inappropriate” (Lewis 2005a). Sharfstein has rebuked psychiatrists who justified their consultations for detainee interrogations through claims of no patient-physician relationship: “You are never not a physician” (Vedantam 2005).
Whereas the American Psychiatric Association has clearly prohibited its members from detainee interrogations, the American Psychological Association has equivocated. In 2006, more than fifteen hundred psychologists signed an online petition against the American Psychological Association’s guidelines that allow psychologists to consult on “interrogation and information-gathering processes for national security purposes” that were drafted by an ethics subcommittee, on which six of ten members had ties to the American military (Fifield 2006; Wasley 2006). In 2007, the American Psychological Association approved consultations from psychologists to keep interrogations “safe and ethical” (Steele and Morli 2007), but banned psychologists from participating in mock executions, simulated drowning, sexual and religious humiliation, stress positions, and sleep deprivation (Vedantam 2007). Critics contended that these restrictions still allowed psychologists to participate in interrogations compared to bans imposed on physicians by the American Medical Association and the American Psychiatric Association (Glenn 2007). By 2008, the American Psychological Association passed a resolution banning all psychologist participation in interrogation programs at detention centers abroad (Goldstein 2008).
The War on Terror has provoked vigorous and occasionally venomous debates regarding the extent to which the practices of mental health professionals in military medical systems defy ethical standards. What type of bioethics can and should prevail in institutions where the military values of discipline and hierarchy trump the medical values of treatment and healing? Can we expect military medical professionals to jeopardize themselves through whistle-blowing when the military construes their behavior to be ethical, as when physicians monitor “enhanced interrogations” to prevent death? How do we understand different professional positions on the participation of medical personnel in detainee interrogations? Can this be done with the American Medical Association and American Psychiatric Association requirements to uphold the Hippocratic Oath, to do no harm, while the American Psychological Association has encouraged psychologists to protect American citizens?
In this chapter, I examine bioethical discourse on the conduct of military psychiatrists and psychologists throughout the War on Terror. Bioethicists employ shared values, beliefs, and interpretive frameworks to debate the meanings of proper and improper professional conduct, offering clear examples of the cultural construction of medicolegal issues. The explanations that bolster their arguments illustrate the second forensic function of medical systems, the establishment of medical and legal standards to support and evaluate medicolegal issues. Based on the premise that culture frames all interpretations of the medical encounter, the bioethical scholarship exudes power as bioethicists introduce medicolegal issues, make authoritative interpretations about current practices, and propose definitive solutions.
SOCIAL SCIENCE, BIOETHICS, AND CULTURAL MODELS OF INTERPRETATION
Bioethics emerged in the 1960s and 1970s to address moral quandaries on prolonged life and altered definitions of death that accompanied the development of new medical technologies (Clouser 1974; Fox 1990; Gaines and Juengst 2008; Jonsen 1999; Pellegrino 1990). Although bioethicists draw upon different methods based on disciplinary training (Turner 2009), the approach of “principlism” advanced by philosophers Tom Beauchamp and James Childress remains a central method. Beauchamp and Childress posited that “a set of principles in a moral account should function as an analytical framework that expresses the general values underlying rules in the common morality” (12), with “the common morality” defined as “the set of norms that all morally serious persons share” and “that bind all persons in all places” (3). These four principles are: (1) respect for autonomy (a norm of respecting the decision-making capacities of autonomous persons), (2) nonmaleficence (a norm of avoiding the causation of harm), (3) beneficence (a group of norms for providing benefits and balancing benefits against risks and costs), and (4) justice (a group of norms for distributing benefits, risks, and costs fairly) (Beauchamp and Childress 2001).
Principlism remains the reigning paradigm in bioethics (Beauchamp 1995; Callahan 2003; Clouser and Gert 1990; Davis 1995; Degrazia 1992). However, social scientists have identified shortcomings in its universalistic postulations. Principlism prescribes reductionist norms for all solutions without considering how bioethical dilemmas are historically, socially, and culturally constructed in local contexts (Marshall 1992). Principlism assumes that all people share “the common morality,” but this assumption overlooks how reasonable people can make value judgments in different ways (Turner 1998, 2003). In this regard, bioethics exhibits its own culture by shaping ethical dilemmas, designating certain parties as responsible, and proposing solutions through principles that prioritize individual autonomy and self-determination (Callahan 2005; Muller 1994). For example, the American principle of individual autonomy contrasts with cultural values that prioritize interconnectedness and social obligations elsewhere (Fox and Swazey 2005, 2010). Moreover, the principle of individual autonomy—for patients and physicians alike—presupposes that ethical problems can be located to the patient-physician relationship without considering institutional or social effects on behavior (Bosk 1999). For these reasons, bioethicists should incorporate studies of culture—the norms, understandings, and practices of any community engaged in interpretative meaning making about the world (Turner 2005)—to elucidate how moral problems are perceived and resolved (Hoffmaster 1992, 1994) “from the inside of experience” in situations characterized by unequal distributions of power, resources, and responsibilities (Kleinman 1994).2
My analysis of how bioethicists have constructed medicolegal issues in the War on Terror builds from insights into the cultural bases of bioethics. In particular, anthropologist Patricia Marshall has noted that moral dilemmas result from “a deep-seated ambivalence in the U.S. value system toward scientific developments and their implications for control over life and death” (1992, 51). Rather than assume norms and values based on predetermined principles, the cultural perspective has viewed ethical problems as “culturally constituted and continually evolving” since “the definition of a medical dilemma and its ethical resolution are seen as inextricably bound to broad cultural circumstances that influence health and illness behavior” (1992, 54). She asserts that the field of bioethics would benefit from greater introspection into the cultural meanings of what is perceived as a medical and moral reality and the values associated with that reality (1992, 58). Marshall and Barbara Koenig foresee that a cultural grounding for bioethics will demonstrate “how bioethics itself is tied into global power structures, perhaps inadvertently serving to maintain the status quo in biomedicine” (2004, 254). Cultural critique necessarily involves a reformulation of principlist bioethics: “Bioethics practices that celebrate only autonomy, with its emphasis on choice, and downplay on social and economic constraints on individual agency, are out of touch with health-care realities in the U.S. as well as globally” (2004, 255). This chapter analyzes how bioethical dilemmas are variously constructed as medicolegal issues and how medical and legal strategies are established within cultural meaning systems connected to global power structures in the War on Terror.
THE CONSTRUCTION OF BIOETHICAL ISSUES IN THE WAR ON TERROR
Below, I analyze texts from a search across all years since 2001 for the terms “Abu Ghraib,” “War on Terror,” or “Guantánamo” paired with the terms “ethics,” “ethical,” “bioethics,” or “bioethical” in PubMed, the most accessed medical database in the world.3 PubMed contains more than 22 million citations in the fields of biomedicine and health, developed through the American National Institutes of Health. The sole criterion guiding this search was that articles had to explicitly address the bioethics of health professionals involved with detainees in the War on Terror. I examined all English-language articles in peer-reviewed journals. I reviewed all titles and abstracts of articles for eligibility. I also reviewed articles that did not have abstracts and those whose abstracts did not seem to clearly address bioethics in the War on Terror. I excluded book reviews, dissertations, letters to the editor, and other formats that are not typically peer-reviewed. I also excluded review articles that relied on the findings of previous articles to make similar arguments. I present text excerpts by medicolegal issue below.
Dual Loyalty
Bioethicists have attempted to clarify the potential dual loyalty conflicts of military medical professionals in the War on Terror. Dual loyalty has been defined as the “clinical role conflict between professional duties to a patient and obligations, express or implied, real or perceived, to the interests of a third party such as an employer, an insurer or the state” (Physicians for Human Rights and the University of Cape Town Health Sciences Faculty 2003). Jerome Singh understands that “civilian medical ethics apply equally to military health professionals as to civilian practitioners” and that “health professionals must put patients’ human rights and wellbeing before the state’s interests” (2003, 573). He then calls on the American medical community to “avoid making the same mistake” of the American government “in rejecting the International Criminal Court and the Optional Protocol to the Convention against Torture” (2003, 573). Steven Miles also maintains that civilian medical ethics apply to military personnel at Abu Ghraib:
Military personnel treating prisoners of war face a “dual loyalty conflict.” The Geneva Convention addresses this ethical dilemma squarely: “Although [medical personnel] shall be subject to the internal discipline of the camp … such personnel may not be compelled to carry out any work other than that concerned with their medical … duties.”4 By this standard, the moral advocacy of military medicine for the detainees of the war on terror broke down.
(2004, 727)
Miles adopts the same position for Guantánamo: “Dual loyalty ethics, like international law, obliges the clinicians who work in environments pressuring them to do otherwise to hold the wellbeing of their imprisoned patients as their primary obligation” (2007, 10). George Annas also recognizes dual loyalty conflicts at Guantánamo:
There seems to be real tension between the physicians at Guantanamo, most of whom are under the command of the Navy at the hospital, and the Army commanders who are in charge of the prisoners and their interrogations. It is often argued that a physician in the military should rarely have to decide whether to be a military officer first and a physician second or a physician first and a military officer second. At Guantanamo, however, the choice is stark.
(2006, 1381)
In contrast, military bioethicists have implied that the needs of the military trump all other considerations. Laura Sessums and colleagues write:
Scholars in military medical ethics acknowledge that both military physicians and soldiers have an implicit understanding that the mission comes first and there will be instances where military medical officers must put the needs of society or the mission ahead of their patients’ needs. At the same time, there is an obligation to serve the patient’s best interests, to tell the truth, protect confidential medical information, and empower their patients with knowledge and guidance to make informed decisions about their medical care.
(2009, 442)
Sessums and colleagues contend that many reasons can underlie “questionable practices” at certain times: “First, although the law forbids torture, what constitutes torture is not always clear. … Physicians may be inadequately trained to know how to recognize mistreatment or intervene. Some physicians may believe that participation may be acceptable when no doctor-patient relationship has been established” (2009, 443). Current standards may not adequately guide physicians: “Physicians face situations that are not covered by existing laws but involve a potential medical ethical violation. The correct response in such circumstances is less clear” (2009, 444). In all circumstances, complaints of unethical practices should follow military hierarchy: “Once a deployed physician determines that it is necessary to report a problem up the chain of command, the initial report should start at the lowest level. … Beyond these options, physician may go outside the system to the press, but risk significant adverse professional and personal consequences” (2009, 445). Similarly, Edmund Howe and colleagues promote the needs of the military over those of individual patients:
The single value that prevails over all others in the military is achievement of mission. This includes keeping the country safe from harm and, in some contexts, protecting other endangered persons as well. In giving its mission highest value priority, the military is not serving its needs as an independent, separate entity. Rather, ultimately it is serving the Nation and perhaps also indirectly persons throughout the world.
(2009, iv)
Howe and colleagues ultimately conclude: “It may be that those asserting that a military value should prevail over traditional medical needs should have the ‘burden’ of making the case that the needs of the mission should prevail. This may be the case in regard to issues that arise for military health professionals that involve interrogations and force feeding” (2009, vi). Dual loyalty conflict therefore emerges as a medicolegal issue underpinning other bioethical debates.
Force-Feeding Detainees
Many authors agree that military health professionals should not forcefully feed detainees. Annas notes that unique conditions at Guantánamo account for force-feeding:
To the extent that military commanders are making the decisions about force-feeding, the rules of the Bureau of Prisons are not being followed at Guantanamo.5 This may be why the immediate past commander of the medical group responsible for prisoner health care, Navy Captain John S. Edmondson, said that military health care personnel are screened before they are deployed to Guantanamo “to ensure that they do not have ethical objections to assisted feeding.”
(2006, 1380)
Nonetheless, Annas holds that military medical professionals must refuse to force-feed detainees: “American military physicians always have the obligation to disobey an unlawful order and the option to disobey an order that is contrary to medical ethics” (2006, 1381). Leonard Rubenstein and Annas chastise the American government for not following prison policies at Guantánamo:
In US prisons, when prisoners have been tried, convicted, and sentenced, physicians have exclusive authority to make a final decision, and everything done to prisoners in the USA must be consistent with the US Constitution (not the Geneva Conventions). Prisoners are fed in their cells, and not taken to a central area by guards. In February, 2009, a judge at a US federal district court accepted the US military’s position that forcefeeding individuals on hunger strike in restraint chairs did not violate the Eighth Amendment of the US Constitution,6 but the judge did not decide whether force-feeding constitutes torture or cruel, inhuman, or degrading treatment according to the Common Article 3 of the Geneva Conventions.7 Since January, 2009 [sic], there have been 25–50 prisoners on hunger strikes at any time. How many, if any, of the hunger strikers are mentally incompetent or how many, if any, are being coerced by other prisoners to stop eating is not known. Neither of these circumstances, however, would justify force-feeding them in restraint chairs.
(2009, 354)
Annas and colleagues warn military physicians about the legal consequences of force-feeding: “Physicians at Guantanamo cannot permit the military to use them and their medical skills for political purposes and still comply with their ethical obligations. Force-feeding a competent person is not the practice of medicine; it is aggravated assault” (2013, 2).
Military bioethicists agree that detainees should not be forcefully fed, but also permit a broader range of opinions. Howe and colleagues state:
Force feeding, because of this irresolvable ethical conflict between saving detainees’ lives and respecting their autonomy, may create a moral problem for some military providers, regardless of what policy is adopted. Some may find feeding detainees against their will in at least this context unconscionable. Others may find it unconscionable to not force feed these detainees.
(2009, xi)
However, Howe and colleagues ultimately agree that the forced feeding of detainees moves beyond the military’s stewardship responsibilities to preserve life and death: “In regard to force feeding at least, it may be instead that this obligation would be best fulfilled by respecting detainees’ autonomy” (2009, xii).
Health Professionals and Interrogations
All authors agree that health professionals should not be involved in interrogation. Certain authors cite international standards. Miles lists bioethical offenses: “At the operational level, medical personnel evaluated detainees for interrogation, and monitored coercive interrogation, allowed interrogators to use medical records to develop interrogation approaches, falsified medical records and death certificates, and failed to provide provide [sic] basic health care” (2004, 728).
Elsewhere, Miles details how clinician participation in interrogations led to the abuse of detainee Mohammed al-Qahtani:
Medics regularly assessed al-Qahtani’s vital signs, hydration, skin integrity and constipation. They attended to edema that appears to have resulted from a combination of prolonged restraint, recumbency and (perhaps) nutritional insufficiency. Physicians came to the interrogation cell to assess or treat dehydration, inanition, pain, edema and potential trauma from prolonged restraint to a metal chair. A physician told interrogators over the telephone that interrogation could continue despite bradycardia.
(2008, 7)
Miles notes that the American government deliberately reinterpreted international agreements in January 2002 based on al-Qaeda’s status as a non-state terrorist group: “Since al-Qaeda was not a national signatory to international conventions and treaties, these obligations did not apply” (2004, 725).8 The American government has bypassed the Geneva Conventions: “Although the United States Supreme Court upheld the Geneva Convention in its Hamdan decision (Hamdan v. Rumsfeld, 124 S. Ct. 2633 [2004]),9 the recently enacted Military Commissions Act denies prisoners the right to invoke the Geneva provisions (Military Commissions Act of 2006)” (Miles 2008, 8).10
Miles cautions military medical professionals against violating the Geneva Conventions: “War crimes attract universal jurisdiction” (2007, 722). Bloche and Marks also cite international standards to protect clinical information from interrogations: “The laws of war defer to medical ethics. Additional Protocol I to the Geneva Conventions provides that medical personnel ‘shall not be compelled to perform acts or to carry out work contrary to the rules of medical ethics’”11 (2005, 7). Nevertheless, Bloche and Miles acknowledge that the United States has not signed the Geneva Conventions: “Although the protocol has not been ratified by the United States, this principle has attained the status of customary international law” (2005, 7). Rubenstein additionally appeals to international law by citing the World Medical Association’s amendment to the Declaration of Tokyo to dissuade health professionals from participating in interrogations “in preserving ethical standards, protecting the integrity of the profession, and, just as important, assuring the society at large that the health professions are acting in accordance with moral expectations” (2007, 747).
Other authors have relied on reports to condemn the involvement of health professionals in detainee interrogations. Susan Okie narrates how BSCT members at Guantánamo provided interrogators information about prisoners’ psychological weaknesses from “a confidential report by the International Committee of the Red Cross, received by the U.S. government in July 2004 and subsequently leaked to the media” (2005, 2531). However, Major General Jay Hood, then camp commander, disputed these findings: “‘Medical care has no connection to intelligence gathering,’ Hood said. ‘Zero. None’” (Okie 2005, 2532).
A related medicolegal issue has been the role of psychologists in interrogations. Some authors fault the American government for exploiting professional differences between psychiatrists and psychologists to involve psychologists in detainee interrogations. Nancy Sherman (2006) disputes the Pentagon’s reasoning in employing psychologists in interrogations since they are not bound to the Hippocratic teaching to “do not harm” as physicians: “They [psychologists] should not be involved, directly or indirectly, in situations that may lead to the breach of confidential medical records; to torture or to cruel, inhumane, and degrading treatment; or to exploitation of fears or phobias” (200). Rubenstein and Annas (2009) also condemn the involvement of psychologists in interrogations: “The professions and ethical standards, however, have no such distinction: all health professionals are bound by the ethics of their specialty no matter what roles they have” (354). Military bioethicists have additionally advised psychologists against interrogations, but reasoned differently than civilian bioethicists in noting the unique needs of information gathering. The singularity of this viewpoint in bioethical discourse warrants a full exposition of this line of reasoning:
To the extent that interrogators, with or without BSCs help, try to form a positive relationship with detainees so that (inadvertently or otherwise) detainees will then give them more information, this uses detainees and their interrogators’ relationships with them as a means to help the military (and, thus, this country and others), as opposed to “treating” them more as ends in themselves. This is ethically problematic for both interrogators and care providers. In the case of care providers, this risks violating their implicit professional medical obligations to give their patients’ needs the highest moral priority and to not exploit their vulnerability for others’ ends.
(Howe et al. 2009, viii)
Others have accused the American Psychological Association of collaboration with the American government. Kenneth Pope and Thomas Gutheil castigate the American Psychological Association for promoting the participation of psychologists in interrogations, contended to be “inherently a psychological endeavor” in “preventing violence and protecting our nation’s security” (2009, 162). Pope has questioned the claims of the American Psychological Association: “What evidence did APA rely on in making these confident assurances about all interrogations? Were the claims subjected to critical scrutiny before placing the authority, prestige, trust, and influence of the organization behind them?” (2011a, 152). Nonetheless, Pope admits that aside from its health-care identity, “psychology is a military and national security profession” and that “a role in detainee interrogations seems consistent with psychology’s history and range of professional identities (2011b, 164).
A DISCOURSE ANALYSIS OF BIOETHICS TEXTS ON MILITARY MENTAL HEALTH PROFESSIONALS
Texts from bioethicists confirm Marshall’s contention that medical dilemmas and their ethical resolutions stem from cultural circumstances. In this case, circumstances that influence detainee health and professional behavior come from the War on Terror. Although they may construct medicolegal issues slightly differently, all authors agree that the content of medical moral reality concerns the detainee-clinician relationship. The values associated with this reality call for the protection of detainees and greater ethical practices from military mental health professionals. However, the medical and legal strategies used to evaluate this reality differ. Through discourse analysis and close textual readings, we can attend to these similarities and differences.
For example, certain authors frame bioethical dilemmas around dual loyalty conflicts. Singh (2003) asserts that “civilian medical ethics apply equally to military health professionals as to civilian practitioners,” thus equating standards from two different health-care sectors. By constructing dual loyalty conflicts, Singh extends values from civilian medical ethics to military professionals in writing that “health professionals must put patients’ human rights and wellbeing before the state’s interests.” The use of the modal tense “must” displays authority and the vocabulary of “human rights” broadens dual loyalty beyond bioethics and into civic responsibilities. In pressing American health professionals to “avoid making the same mistake” of the American government “in rejecting the International Criminal Court and the Optional Protocol to the Convention against Torture,” Singh supposes that individuals can act freely and autonomously. The rhetorical move of pitting the International Criminal Court against the American government emphasizes the isolated position of the United States, and the Optional Protocol to the Convention Against Torture becomes the legal strategy to evaluate dual loyalty. Singh’s choice of the word “mistake” indicates that he views this as an issue of individual immorality, compared to other words such as “tactic” or “strategy” that would reflect general state policy.
Miles (2004) similarly invokes the Geneva Conventions as the legal strategy to evaluate dual loyalty conflicts: “the Geneva Convention addresses this ethical dilemma squarely.” Miles then quotes the Geneva Convention for impeachable authority. In writing “by this standard, the moral advocacy of military medicine for the detainees of the war on terror broke down,” Miles assumes that the circumstances of internal camp discipline at Abu Ghraib permitted medical personnel to only have to carry out work related to medical duties. The violation of this legal standard does not become an issue for courts to prosecute, but one of “moral advocacy.” On the issue of Guantánamo, Miles (2007) turns to “international law” to “oblige” clinicians who “work in environments pressuring them to do otherwise to hold the wellbeing of their imprisoned patients as their primary obligation.” International law becomes the legal standard to evaluate dual loyalty. The verb “oblige” imposes an authority upon clinicians who must actively “hold the wellbeing of their imprisoned patients” with the inference that clinicians possess the individual autonomy to act. In contrast, Annas (2006) frames dual loyalty as an issue with less clear resolution: “It is often argued that a physician in the military should rarely have to decide whether to be a military officer first and a physician second or a physician first and a military officer second.”
Military bioethicists have also addressed dual loyalty conflicts, but utilize other strategies to evaluate this issue. Sessums and colleagues (2009) write about “scholars in military medical ethics” who understand that “the mission comes first and there will be instances where military medical officers must put the needs of society or the mission ahead of their patients’ needs.” Authority in this instance lies not with general international laws but with “scholars in military medical ethics” (i.e., academic opinion without reference to laws). “The needs of society” outweigh “patients’ needs,” implying that utilitarian values of the greater good for the greater number of people outweigh individual patients’ rights. While Sessums and colleagues agree that “the law forbids torture,” they argue that “what constitutes torture is not always clear.” Sessums and colleagues do not dispute the authority of the law. Rather, they concentrate on questions of interpretation, since physicians may not know how “to recognize mistreatment or intervene,” especially since “physicians face situations that are not covered by existing laws but involve a potential medical ethical violation.” In this line of reasoning, bioethical violations are not always clear (“potential”) and violations may result from ignorance rather than moral culpability. The interconnectedness and social obligations of military medical professionals manifest through reports of problems that follow “up the chain of command” lest the reporter “risk significant adverse professional and personal consequences” (Sessums et al. 2009). The words “risk,” “significant,” and “adverse” leave no room for ambiguity on the “consequences.” Howe and his coauthors (2009) also stress that “the single value that prevails over all others in the military is achievement of mission,” emphasizing military utilitarian values. They convert “Nation” into a proper noun to make this point. However, even they express ambivalence about this ethical stance: “It may be that those asserting that a military value should prevail over traditional medical needs should have the ‘burden’ of making the case that the needs of the mission should prevail” (Howe et al. 2009). Ironically, having asserted that the military value should prevail over traditional medical needs, the authors concede that this point is a “burden” that calls for “making the case.” Whereas civilian bioethicists have regarded dual loyalty as an issue of clinicians’ exerting individual autonomy within a framework of morality governed by international laws, military bioethicists counter that institutional obligations govern individual clinicians, and bioethical infractions may not be intentional.
The assumption that civilian bioethics and laws remain operational in military contexts also pervades publications on the force-feeding of detainees. Annas (2006) discerns that Guantánamo officials do not follow American prison policies: “To the extent that military commanders are making the decisions about force-feeding, the rules of the Bureau of Prisons are not being followed at Guantanamo.” The Bureau of Prisons serves as the legal strategy to support the position that clinicians, not military commanders, should make decisions about force-feeding. Annas applies policies from the Bureau of Prisons that regulate conduct in federal institutions to Guantánamo, which is not in federal jurisdiction, as it is a military installation. Annas also underscores that “American military physicians always have the obligation” to “disobey an order that is contrary to medical ethics,” prioritizing the value of individual autonomy within an institution that supports hierarchy and social interconnectedness. Rubenstein and Annas (2009) affirm that “everything done to prisoners in the USA must be consistent with the US Constitution,” but then acknowledge that an American federal judge ruled that “force-feeding individuals on hunger strike in restraint chairs did not violate the Eighth Amendment of the US Constitution.” Nonetheless, they argue that concerns about detainees’ possible mental incompetence and coercion do not “justify force-feeding them in restraint chairs.” Here, Rubenstein and Annas seem to suggest that bioethical violations can occur in the absence of breaking the law. Elsewhere, Annas, Crosby, and Glantz (2013) value individual autonomy and assert that “physicians at Guantanamo cannot permit the military to use them and their medical skills for political purposes.” The language used is moral and evaluative: “Force-feeding a competent person is not the practice of medicine; it is aggravated assault.” The phrase “aggravated assault” refers to criminal charges within American law, though they have not clarified how American criminal law could be applied at Guantánamo, which is under military jurisdiction.
Rather than bioethical arguments that focus on the autonomy of military medical professionals, military bioethicists concentrate on the autonomy of detainees. Howe and colleagues (2009) write of the “irresolvable ethical conflict between saving detainees’ lives and respecting their autonomy” which will “create a moral problem … regardless of what policy is adopted.” In this formulation, military physicians face a bioethical conflict despite their decisions. This implies that military physicians grasp that some will charge them with bioethical violations regardless of their decision to force-feed or not. Howe and his colleagues then reason that “the responsibilities of stewardship [which] usually are to preserve the life and health of those for whom others have responsibility” may “be best fulfilled by respecting detainees’ autonomy.” They do not share why they think a responsibility to preserve life and health of detainees could be best fulfilled by respecting the detainees’ autonomy during hunger strikes, which raises questions about whether the authority of this statement rests in the sole fact that military bioethicists adhere to this position.
The value of individual autonomy also suffuses concerns about the involvement of health professionals in military interrogations, but the relationship of this value to enforceable legal standards is also unclear. Miles (2004) writes that medical personnel “evaluated detainees for interrogation, and monitored coercive interrogation, allowed interrogators to use medical records to develop interrogation approaches, falsified medical records and death certificates, and failed to provide basic health care.” In this list of offenses, medical personnel are implicated as independent agents without greater discussion about the structures of military hierarchy. Miles reports that legal strategies to evaluate the behavior of military medical professionals have shifted as the U.S. Department of Justice interpreted that since “al-Qaeda was not a national signatory to international conventions and treaties, these obligations did not apply.” Miles (2008) also presents the paradox of how the “United States Supreme Court upheld the Geneva Convention” and yet the “Military Commissions Act denies prisoners the right to invoke the Geneva provisions.” Bloche and Marks (2005) similarly note the paradox that the protocol of the Geneva Conventions “has not been ratified by the United States,” but “has attained the status of customary international law.” It would seem that Bloche and Marks want to apply legal strategies from the Geneva Conventions to evaluate potential bioethical violations, but find themselves in a conundrum in that the United States has not officially signed them. Elsewhere, Rubenstein (2007) applies strategies from the Declaration of Tokyo, but does not address the extent to which international guidelines can be legally enforced. Okie (2005) invokes a “confidential report by the International Committee of the Red Cross” charging that “medical personnel, through BSCT members, had provided interrogators with information about prisoners’ psychological vulnerabilities” but this is refuted by then camp commander Jay Hood, who declared, “Medical care has no connection to intelligence gathering.” Okie relies on the authority of the International Committee of the Red Cross to evaluate suspected bioethical offenses that are then categorically refuted by a military official.
Notably, the divide between moral outrage and legal infractions widens in discussions on the role of psychologists in interrogations. Sherman (2006) believes that “it is hair-splitting” whether psychologists “can ethically be involved in interrogations that may involve coercive techniques or torture.” Sherman responds that “the answer is clearly no,” though it is not at all clear why they cannot be involved, since she wrote this before the American Psychological Association clarified its position on banning psychologists from interrogations. Similarly, Rubenstein and Annas (2009) condemn the involvement of psychologists in BSCTs since “all health professionals are bound by the ethics of their specialty no matter what roles they have,” but psychologists do not have the same responsibilities as psychiatrists or other physicians to always act in the best interests of patients, a clear demonstration of different types of “ethics of their specialty.” Ironically, military bioethicists such as Howe and colleagues (2009) write that psychologists should avoid “violating their implicit professional medical obligations to give their patients’ needs the highest moral priority and to not exploit their vulnerability for others’ ends,” which also assumes that psychologists act in a medical capacity. This distinction is important because, as Pope and Gutheil (2009) have pointed out, the American Psychological Association has “stressed that ‘[c]onducting an interrogation is inherently a psychological endeavor’” and that psychologists can protect “our nation’s security.” Pope’s moral and evaluative outrage manifests in his condemnation of the APA’s “confident assurances about all interrogations” and “blanket assurances” (2011a), but he must ultimately agree that “psychology is a military and national security profession” in addition to a health profession (2011b).
Based on Foucault’s concepts of discourse analysis, bioethical scholarship constitutes a true discourse on the professional responsibilities of military health professionals.
The limits and forms of the sayable by authors: civilian bioethicists prioritize the value of individual autonomy in positing that military health personnel should avoid and report bioethical violations, though military bioethicists espouse values of hierarchy and social connectedness, pointing to the lack of clear legal guidance on bioethical issues. Each group seems to comprehend the patient-provider relationship differently, as civilian bioethicists disagree with military bioethicists on its degree of independence within a military command structure.
The domain for this discourse: an audience of bioethicists and general health practitioners conversant with bioethical principles. In no case do we see ethical dilemmas shaped to discuss effects on detainees rather than health professionals. Cultural assumptions pivot on the principle to do no harm.
The conservation of specific themes: the supposition that civilian medical ethics applies to military professionals or that military bioethics is somehow exempt from civilian standards due to unique institutional values.
The memory of prior bioethical utterances: that new scientific developments in enhanced interrogation methods and restraint chairs elicit ambivalence over who controls life and death. If bioethics emerged to discuss moral quandaries from the growing application of medical technologies to problems throughout the life span, the concerns here are about medical technologies extended to different practice settings such as military services. The common discursive memory is the misapplication of scientific developments.
The reactivation of recurrent reasoning: the contention that bioethical violations from military medical professionals can be resolved through the patient-clinician relationship. Authors focus on the ethical dilemmas faced by these professionals, rather than scrutinizing the wartime situations or institutional settings that catalyze such dilemmas.
The appropriation of evidence: previous international laws and treaties that have mandated acceptable bioethical practices as global power structures. Using existing legal codes are seen as a remedy for safeguarding ethical practice. The question arises: Does a civilian bioethical focus on individual autonomy in the patient-clinician relationship unintentionally perpetuate the status quo by not addressing ethics based on values of hierarchy and obedience prized by military bioethicists?
My analysis of the bioethics scholarship should not be read as support for health professionals who elevate military interests above individual patients, forcefully feed detainees, or participate in interrogations. Rather, medical discourse analysis reveals the chasm in cultural values between civilian and military bioethicists and their legal strategies to evaluate bioethical issues. Civilian bioethicists tend to argue that military health professionals have violated laws or medical ethics that prevail in civilian institutions, but they must ultimately concede that laws have been reinterpreted in the War on Terror. Indeed, former president George W. Bush has written that he selected Guantánamo as a detention facility on counsel from the Justice Department, so that prisoners at Guantánamo would not be entitled to rights granted in the American legal system (Bush 2010). This has led experts to call Guantánamo a “legal black hole” that negates global power structures in human rights and humanitarian law since World War II (Steyn 2004) and a “state of exception” in which the law must be broken in one specific instance of Guantánamo to defend it elsewhere in the United States (Agamben 2004). Whether civilian bioethics applies in military settings has also reignited debates since state professional and licensing bodies in Louisiana, New York, Ohio, and Texas have dismissed charges brought against military psychologists (Gaskin, Jenny, and Clark 2012). Civilian bioethicists may need to reconsider legal strategies and arguments if the laws they invoke have been reinterpreted and military bioethical violations cannot be prosecuted in civilian jurisdictions. At the same time, military bioethicists who emphasize institutional hierarchy and social obligations over individual autonomy may need to clarify their own strategies for evaluating bioethical issues. The standards of medical ethics cannot remain hostage to the whims of military policy that negate precedents of international law (Miles 2011).
Notably, social theorists who have critiqued the situation of human rights at Guantánamo have also adopted cultural assumptions and language similar to those of bioethical discourse. For example, Giorgio Agamben points to the USA Patriot Act of 2001 to conclude that “it radically erases any legal status of the individual, thus producing a legally unnamable and unclassifiable being” (2004, 3). Agamben asserts that the detainee and his detention “is entirely removed from the law and from judicial oversight,” comparing the situation of the Taliban at Guantánamo to Jews in Nazi camps (2004, 4). Similarly, Judith Butler has called “indefinite detention” a “broader tactic to neutralize the rule of law in the name of security” in which “the extra-legal exercise of state power justifies itself indefinitely” (2004, 67). However, these characterizations are inaccurate. As we shall see in chapter 3, detainees do have a legal status as “enemy combatant.” Detainees do not exist removed or neutralized from the law and judicial oversight, but in a hyper-regulated military legal environment with its own cultural values, assumptions, meanings, and practices. Agamben and Butler seem to equate the civilian and military justice systems in the War on Terror, as do many civilian bioethicists. This leads them to reason that civilian legal and ethical codes apply in settings such as Abu Ghraib and Guantánamo without recognizing the cultural realities of military institutions in the War on Terror. It also leads them to make assumptions about prisoner autonomy and sovereignty in liberal democracies that the War on Terror shatters.
This raises the question of what type of bioethics we can imagine for our colleagues in military health. After all, the point of this medical discourse analysis is not merely to analyze cultural meanings, but also to propose tangible solutions. One suggestion is to treat military medical ethics as a subset of medical ethics and military ethics, whose goals and strategies may differ (Gross 2010). For example, rather than view dual loyalty as the conflict in professional roles between physician and soldier, a new frontier could consider the challenges faced by seeing the ethics of the physician-soldier as a single actor (Gross 2013). Other areas of fruitful investigation may be to explore the limits of bioethical practice in light of—not in spite of—new legal interpretations in the War on Terror. We have seen how reasoning through historically accepted legal codes such as the Geneva Conventions has failed to safeguard ethical practice. The time has come to address each ethical question on its own terms. The final determinant of ethical practice may need to be adherence to new legal interpretations erected in the War on Terror rather than to precedents that the American government has rendered obsolete.
Finally, bioethicists should rationalize safeguards to protect military health personnel who report bioethical violations, risking significant personal and professional consequences. Those of us who are civilian health professionals would best help our military colleagues by developing ethical standards that incorporate the unique cultural military setting into our reasoning. We should ask ourselves about the ethics of demanding that military personnel confront grave consequences when we do not have to, and then chastising them without offering practical alternatives. In fact, primary accounts of military health professionals at Guantánamo reveal consternation among psychologists who have been forced to craft enhanced interrogation tactics and among nurses and physicians who were powerless to stop confidential medical records being shared with interrogators (James 2008). Perhaps bioethicists should turn to these individuals to understand the unique cultural circumstances in safeguarding ethical practices throughout military installations in the War on Terror.