Sunday, January 30, 2011

Al Jazeera English: Live Stream for News on Egyptian Uprising

Al Jazeera English: Live Stream

The U.S. media has largely boycotted AJE. See Ryan Grim's story at Huffington Post: 
Other than in a handful of pockets across the U.S. - including Ohio, Vermont and Washington, D.C. - cable carriers do not give viewers the choice of watching Al Jazeera. That corporate censorship comes as American diplomats harshly criticize the Egyptian government for blocking Internet communication inside the country and as Egypt attempts to block Al Jazeera from broadcasting.

The result of the Al Jazeera English blackout in the United States has been a surge in traffic to the media outlet's website, where footage can be seen streaming live. The last 24 hours have seen a two-and-a-half thousand percent increase in web traffic, Tony Burman, head of North American strategies for Al Jazeera English, told HuffPost. Sixty percent of that traffic, he said, has come from the United States.

Monday, January 24, 2011

Amnesty International Panel Discussion with Former Guantanamo Detainee

An exciting and important event in Berkeley this week:
Amnesty International USA would like to invite you to attend an exceptional panel discussion on Torture and Guantanamo Bay.  In recognition of the two years that have passed since the Presidential Order to close Guantanamo, the goal of this event is to bring attention to the human rights violations that have occurred at Guantanamo Bay and to discuss its intended closure.

This expert speakers' panel will feature Omar Deghayes, a former Guantanamo detainee, who will participate via video conference from Brighton, England; Attorney Candace Gorman, whose Civil and Constitutional Rights work has included representing two Guantanamo detainees; and Professor Almerindo Ojeda from the UC Davis Center for the Study of Human Rights in the Americas, which hosts the Guantanamo Testimonials Project.  There will be a short Q&A session after the panel discussion.

The event will be held at the University of California Berkeley on Wednesday, January 26th from 7:30pm - 9:00pm at 2050 Valley Life Sciences Building. 

The event is co-sponsored by the UC Berkeley Human Rights Center, Health Professionals Against Torture, Survivors International, United Nations Association USA East Bay Chapter and the Boalt Alliance Against Torture.  The event is free and open to the public.

For more information about the event please contact William Butkus, Amnesty International Field Organizer or 415-288-1800

Sunday, January 23, 2011

Outrageous Provocation Keeps Manning Supporters from Visiting Him in Prison

The owner of Firedoglake, well-known political blogger and commentator Jane Hamsher, and David House, were harassed and prevented today from visiting high-profile prisoner, Bradley Manning, held at the Marine Corps brig in Quantico, Virginia. House has been cleared to see Manning, and has visited before.

From a "statement of events" posted by FDL's Michael Whitney:
At roughly 1:00 pm, upon driving onto the base at Quantico, David House and blogger Jane Hamsher were detained by military guards. House, who is on the Quantico Brig’s visitation list, has been visiting Bradley Manning in confinement since last September.

In December 2010, House came forward with testimony that he witnessed a deterioration in Manning’s physical and mental state due to the conditions of Manning’s solitary confinement. House traveled to the Quantico brig to check up on Bradley’s well-being after a week in which Manning’s lawyer filed an Article 138 complaint over Manning’s mistreatment at Quantico. House and Hamsher also planned to deliver a 42,000-signature strong petition calling for an end to the inhumane conditions that Manning is being held. Upon arriving at the main entrance at Quantico, House and Hamsher were stopped and detained by military police who provided no explanation for detainment aside from a statement from one MP that his orders to detain had “come from the top.”

.... In past visits, Hamsher and House have had no problem driving onto the base to visit Manning. This is the first time House has been denied access to Manning. House and Hamsher’s detainment comes on the heels of Amnesty International calling for an investigation into the conditions of Manning’s confinement. The UN Special Rapporteur on Torture has also announced that the UN will be starting an investigation and Manning’s attorney has filed an article 138 complaint citing inhumane and overly harsh conditions on part of the Brig. Now House, Manning’s primary visitor outside of his attorney, who has provided public testimony about Manning’s deteriorating conditions as a result to his solitary confinement, has effectively been denied access to Manning.
Almost Arrested for Going to McDonalds

Here's how it went down, from Hamsher's Twitter feed:
At Quantico w @DavidMHouse to deliver 42,000 sigs 4 Bradley Maning to brig. Holding us at gate, never happened before: 39 minute ago

Called Lt Brian Villiard of Quantico on Friday and again today as courtesy to say we were coming re: Bradley Manning, never called me back. 38 minutes ago

Demanding my social security number before they'll let me on Quantico base, but won't say why. Never happened before 37nminutes ago

Guess Lt Villiard better at reading FDL than returning phone calls. For first time, made us sign letter saying we won't deliver any pkgs. 25 minutes ago

Quantico guards say I'll be arrested if I go to McDonalds while @davidmhouse visits Manning. "That privilege has been withdrawn." 22 minutes ago

Now been here at Quantico gate for 30 min. Will not let us leave base, holding us. 22 minutes ago

Gunny Foster Military Police #1715 writing me ticket for not hving latest insurance card. Sorry to 42,000 people who signed Manning petition 20 minutes ago

Can't leave base, can't go 2 brig, can't get my driver's license, Gunt Foster threatening 2 arrest us. Haven't done a thing. 19 minutes ago

Now Quantico guards want @davidmhouse driver's license back for 2nd time. 19 minutes ago

I go 2 McDonalds every time we come 2 Quantico while @davidmhouse visits Manning @TheTonyLee bc guards told me 2. Now "tresspassing." 17 minutes ago

The guards absolutely knew we were coming @auerfeld & told to harass us. "This was what I was told to do" said Gunny Foster. 15 minutes ago

McDonalds wasn't trespassing any other time, but now it will get me arrested @UKFriendsofBM. Won't let us off OR on base. 14 minutes ago

We're literally being detained without any explanation at Quantico 40 min now. Won't let us leave 12 minutes ago

When Gunny Foster asked 4 my SS# I said "what if I refuse?" He said he's Military Police & he can arrest me. Is that true? 10 minutes ago

Now Military Police asking @DavidMHouse 4 his SS# AGAIN. 10 minutes ago

We've been coming 2 Quantico 4 months @chrisvcb, @DavidMHouse has official permission 2 visit Bradley Manning 9 minutes ago

We're at the guard gate @SundevilSal, but question is whether they can arrest us 4 refusing to provide SS# rather than let us leave. 7 minutes ago

Question not whether we can get on base @FirstTeamTommy, that is their discretion. They won't let us OFF & won't say why. 7 minutes ago

We gave SS# @JavaJoeX . They still won't let us leave OR allow @DavidMHouse 2 go 2 brig even though he is on visitor list 4 Bradley Manning 4 minutes ago

Gunny Foster towing my car bc they won't accept my electronic proof of insurance, demanding paper. 4 minutes ago

Escorting us off base, hooking my car up to tow truck now. 4 minutes ago

Me "you won't accept electronic proof of insurance." SGT: "has to be printed." Me: "it was printed off that." "Unless u have a printer."

Forcing @DavidMHouse 2 go 2 court. Wouldn't give ticket, gave him a summons 2 appear in court.

Quantico guards didn't give registration back 2 me, but demanding it again.

Now guards going 2 inventory vehicle.

Military police searching & impounding my car. Won't let @DavidMHouse on 2 see Bradley Manning, won't say why.

It's 28 degrees, forcing us 2 stand outside

Quantico Guard: "are u leaving anything in your car" Me: "I can't check when they're driving it on to tow truck."

I called Lt Villard on Friday 2 say we were coming 2 Quantico, give courtesy head's up we were coming. I guess I know he got the message.

Me: "Can I go 2 store I can see fm [from] here & print out insurance if u won't accept electronic?" Foster: "No." 15 min ago, could've had by now

In tow truck, waiting 2 b escorted off Quantico base. No idea how @DavidMHouse & I get back to DC.

Still holding us, my car on tow truck but Quantico guards still won't let us leave.

Even though @DavidMHouse on approved list 2 see Bradley Manning, Quantico guards refusing 2 let him do so w no explanation. Still detained.

Some offers have now entered guard house.

Some officers have now entered the guard house & are talking 2 military police. @DavidMHouse & I detained w no explanation for 1 hr 20 min.
Who's Behind Efforts to Harass Manning's Visitors?

The effect of all this is to isolate Bradley Manning even further, and punish both him and his supporters for daring to speak out against his onerous and abusive incarceration. While the government claims its imposition of solitary confinement and other highly restrictive conditions under a so-called Prevention of Injury (POI) order are for Manning's own protection, in fact, it is aimed at psychologically breaking him down.

In such a high-profile case such as Manning's, linked to the Wikileaks controversy, it seems highly unlikely that Brig Commander James Averhart has acted on his own in this manner. What directions did he get from higher up, and from whom? Was it Marine Commandant and Joint Chiefs of Staff member, General James Amos? Secretary of Defense Robert Gates? Or did this come from the Commander-in-chief, President Obama himself?

Word is that Manning's stymied and harassed visitors will try again next week. As Twitter commenter MMFlint noted: "Time 2 join the 42K who've signed petition calling 4 humane treatment of Manning:".

Sunday, January 9, 2011

On Torture and Forcible Deportations from Guantanamo

Every once in a while, a commenter at one of my articles at Firedoglake writes a comment that deserves wider recognition, and longer shelf-life, because it deepens coverage of the story or adds something special and important for the reader's consideration. That's the case with powwow's comment from my Firedoglake story the other day on the Obama administration's forcible deportation ("refoulement"), against all international law and precedent, of Algerian national and Guantanamo detainee Farhi Saeed bin Mohammed (reposted here at Invictus).

It was the Obama's second such unlawful deportation from Guantanamo in the last six months. While human rights groups took notice and protested, the story dropped into the black hole of current American indifference to the torture story. I'd add that FDL commenter, ondelette, at the same story also added a great link to the ICRC document, Transfers of detainees: legal framework, non-refoulement and contemporary challenges (PDF), where, as she explains, the document shows "how the doctrine came to be, and where it occurs in the laws of war as opposed to Human Rights Law (which is important in this case)."

Powwow's comment:
Well, it inexplicably took six months, but the other shoe has indeed dropped, just where the Supreme Court cleared the way for it to fall...

Tellingly, too, right after the Supreme Court granted the DOJ a last-minute month-long extension of time in which to file its response to Farhi bin Mohammed’s attempted challenge of the U.S. government’s handling of his imprisonment and then-pending release after more than eight years of his unlawful detention by two U.S. presidents. [What's the hurry, eh, Supreme Court? Must be some more corporate favors you can do instead, in the carefree interim...]

Thank you so much for covering this, Jeff. I was hoping that you’d be on the case, and you didn’t disappoint. Your evidence of Congressional complicity in these acts is key to understanding where responsibility for them lies.
…the Pentagon presented “evidence” from unreliable informers to frame Mr. Mohammed as a supporter of Al Qaeda. Presumably, Judge Kessler was unimpressed by this evidence. - Jeff
“Unreliable informers” such as, primarily, the tortured British resident Binyam Mohamed, about whose “evidence” Judge Gladys Kessler minced few words, stating in her November, 2009 habeas decision ordering the release of Farhi bin Mohammed (a release order which the Obama administration did not appeal, but failed to honor until more than a year later, and then only by forcing the detainee to move to Algeria against his will):
In October of 2008, the Government dropped allegations that [witness against bin Mohammed] Binyam Mohamed was involved in any bomb plot.
In the criminal context, confessions or testimony procured by torture are excluded under the Due Process Clause [of the Fifth Amendment] because such admissions would run contrary to “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.”
First, Binyam Mohamed’s lengthy and brutal experience in detention weighs heavily with the Court.
The difference, of course, is that Binyam Mohamed’s trauma lasted for two long years. During that time, he was physically and psychologically tortured. His genitals were mutilated. He was deprived of sleep and food. He was summarily transported from one foreign prison to another. Captors held him in stress positions for days at a time. He was forced to listen to piercingly loud music and the screams of other prisoners while locked in a pitch-black cell. All the while, he was forced to inculpate himself and others in various plots to imperil Americans. The Government does not dispute this evidence.
In this case, even though the identity of the individual interrogators changed (from nameless Pakistanis, to Moroccans, to Americans, and to Special Agent [censored]), there is no question that throughout his ordeal Binyam Mohamed was being held at the behest of the United States. Captors changed the sites of his detention, and frequently changed his location within each detention facility. He was shuttled from country to country, and interrogated and beaten without having access to counsel until arriving at Guantanamo Bay, after being re-interrogated by Special Agent [censored]. See JE 72 (declaration of Binyam Mohamed’s attorney, Clive Stafford Smith, stating that he did not meet with client until May of 2005)
In Bagram, he [Binyam Mohamed] wrote that he trained with three Algerians. JE 73 at 1902. When he arrived at Guantanamo Bay and, according to his subsequent statements, met Petitioner [Farhi bin Mohammed] for the first time, he then reported that one of those unnamed Algerians was in fact Petitioner. JE 27 at 2; JE 36 at 5. Given the factors discussed above, the court cannot credit this confession as voluntary. The earlier abuse had indeed “dominated the mind” of Binyam Mohamed to such a degree that his later statements to interrogators are unreliable.
Without Binyam Mohamed’s statements implicating Petitioner in training, the Government’s evidence supporting this allegation is severely weakened.
A glimmer of genuine U.S. justice for Farhi bin Mohammed. And then…
After the granting of his habeas petition, [bin Mohammed] fought a repatriation to Algeria, for the reasons stated earlier, and Judge Kessler granted that request. - Jeff
To her enormous credit, Judge Gladys Kessler took heed of Farhi bin Mohammed’s plea not to be further renditioned by the U.S. government, this time from eight years in a Guantanamo lock-up to a native country he’d voluntarily left behind him more than twenty years earlier for fear of his safety.

It was Kessler’s honorable concerns about the fate of this unjustly-held prisoner, which the United States Department of Justice headed by Eric Holder quickly appealed, and D.C. Circuit Appellate Judges Thomas Griffith, Brett Kavanaugh and (mostly) David Tatel in response quickly spurned, while hiding behind secret court filings, soon followed by Justices Alito, Kennedy, Roberts, Scalia & Thomas, who immediately concurred in telling the district court judge: Take a flying leap, Judge Kessler. No, you won’t test the State Department’s “boilerplate” representations about the future of Petitioner in Algeria, because we won’t let you. The predictable result, six unexplained months later, was this week’s rendition to Algeria, by the U.S. government, of Farhi bin Mohammed, the Convention Against Torture be damned.

This is how Judge Gladys Kessler conscientiously expressed her concerns last year, on June 10, 2010, in response to bin Mohammed’s plea not to be sent to Algeria:
On June 1, 2010, Petitioner [Farhi Saeed bin Mohammed] filed an Emergency Motion to Compel Compliance With This Court’s [Habeas Release] Order of November 19, 2009 and For TRO [Temporary Restraining Order] and Injunction Against Transfer of Petitioner to Algeria. The matter is now fully briefed.

In its Opposition to the Motion, the Government relies heavily on the representations made in three declarations, one of which was submitted ex parte so that Petitioner has not had an opportunity to read it, of Daniel Fried, the Special Envoy for the Closure of the Guantanamo Bay Detention Facility. Two of those declarations appear to be boilerplate statements which have been filed in a number of the Government’s Oppositions to Motions (including Petitioner’s) filed before Judge Thomas F. Hogan of this Court, for an injunction against the transfer of certain petitioners held at Guantanamo Bay to other countries, including Algeria.1 Moreover, both of those two declarations are relatively old in that one was filed on July 9, 2009, and the second was filed on November 25, 2009. Obviously, the first two declarations are more than six months old. The classified ex parte declaration was filed much more recently.

Petitioner [bin Mohammed] has voiced great fear about being transferred to Algeria. He has not lived in Algeria for more than 20 years, and has no ties to that country. Because he has been designated an “enemy combatant,” he greatly fears retribution by the Algerian authorities and that he will be formally charged under the Algerian Penal Code, tortured, convicted, and very possibly executed by the Algerian Government. He has claimed that he will be caught between the Algerian government, which will brand him as an international terrorist, and armed domestic terrorists, who oppose the existing government, often pressure individuals to join their ranks, and retaliate violently when such individuals refuse. Petitioner has made clear that he would rather suffer continued confinement in Guantanamo Bay than be placed in the control of the Algerian government.

These allegations are of great concern. It is essential that the representations of the United States Government that it has received assurances from the Algerian Government that any Guantanamo Bay prisoner who is transferred to that country will receive “humane treatment and treatment in accordance with the international obligations of the foreign government accepting transfer” be tested. November 25, 2009 Decl. of Special Envoy Fried at ¶ 6. Given the centrality of those representations and assurances to the future of Petitioner and possibly to his very life, this Court has an obligation to ensure that there is real substance behind the conclusory phrases contained in Special Envoy Fried’s declarations.
Unlike his D.C. District colleague Judge Kessler, Judge Reggie Walton shamefully (if secretly) did not heed a similar plea at about the same time from fellow Algerian and Guantanamo detainee Abdul Naji.

Naji, who quickly thereafter received the same treatment from the D.C. Circuit and the Supreme Court as bin Mohammed, was thus, as Jeff reported at the time, the first forcible rendition out of Guantanamo by the Obama administration, six months ago, in July, 2010 (not in 2002, as Jeff inadvertently wrote above in this post), without benefit of any habeas corpus order on the merits of his case. Last summer, as reported by Josh Gerstein, this was the reaction of David Remes, attorney for both men, to the forcible transfer of Naji to Algeria – a reaction that applies equally today to the D.C. Circuit-contrived, Supreme Court-blessed, Obama administration-effected refoulement this week of Farhi bin Mohammed, an unlawful U.S. prisoner for the last eight years, to Algerian custody:
“It’s tragic, the human dimensions here,” an attorney for Naji, David Remes, said early Saturday. “The court wouldn’t even pause long enough to consider the claims of these men who face torture or death if they return to Algeria. Our only recourse now is diplomatic and political and that’s by no means a sure thing.... We have reason to believe that the military will transfer these men as soon as Sunday or Monday. The Supreme Court has left them to the awful fate that awaits them.”

The "Witness to Guantanamo" Project

Those opposed to torture should be aware of an important new online resource, the Witness to Guantanamo Project, which is documenting primarily via video interviews of former detainees and other legal and human rights figures the actual crimes of torture and other abuse implemented by the U.S. in its rendition and detention programs in the "war on terror."

The following is taken from their website, and is followed by an example of the kinds of testimony the Project is taking.
Shortly after September 11, 2001, Peter Jan Honigsberg, a law professor at the University of San Francisco School of Law, began teaching a class about the war on terror, international security, civil liberties and human rights. The questions raised by this class led him to travel to Guantanamo and also delve deeper into the issues. He published several articles and a University of California Press book entitled A Nation Unhinged: The Human Consequences of the War on Terror. In light of his experiences, his writings, his interactions with former detainees and their attorneys, and the public's desire for information, Professor Honigsberg was compelled to establish the Witness to Guantanamo (W2G) project.

The project is currently conducting in-depth, filmed interviews with former detainees and other witnesses to document human rights abuses and rule of law violations that took place at Guantanamo Bay, Cuba. Witness to Guantanamo is the only project that is systematically filming and preserving in-depth narratives of former detainees and other witnesses. By creating an archive of these videos, W2G will collaborate and partner with other projects around the United States and the world to educate the public and mobilize pressure to hold U.S. government officials and private actors accountable for human rights transgressions and violations of U.S. and international law. (Please see "Links" section.) Memory building will counter denials of the abuses that took place at Guantanamo and help prevent the repetition of U.S. policies and practices that facilitated violations of the rule of law. W2G's first filmed narratives have already helped transition former detainees from being faceless, nameless victims of abusive interrogation policies to individual human beings with personal stories of survival.

The project's methodology reflects the Shoah ("catastrophe") model. After some groups denied the reality of the Holocaust, director Steven Spielberg began filming video accounts of the experiences of survivors. Over 52,000 Holocaust survivors have told their personal stories and the collection is now archived at the University of Southern California (USC) Shoah Foundation Institute for Visual History and Education.

No one has systematically chronicled the abuses and rule of law violations at Guantanamo from the perspective of former detainees as they speak in-depth on camera, telling their own personal narratives of their experiences in Guantanamo. All the interviews will be translated into English and transcribed to reach the broadest audience possible. It is our intent that the video archive grow into an invaluable resource for present and future generations of activists, scholars, historians, journalists, students, documentarians, lawyers, former detainees and the general public. Eventually, individuals will be welcome to apply to use the interviews to support qualitative and quantitative social science research; select footage for documentary and other media-related projects; create educational units on Guantanamo for elementary through graduate school students; and inform and educate the public. The diverse potential uses of the archive will be limited only by the imagination.
The following is from an interview with one of the Guantanamo guards, Terry Holdbrooks, who describes the training he received prior to deployment to Guantanamo. To download the full interview transcript, one must go to this webpage, and click on the appropriate PDF link. The interview can also be seen on video here.
Interviewer: Did you have any sense, or did they tell you what kind of prisoners you’d be working with?
What kind of men these detainees were? Outside of all the catch‐phrases we’ve heard, you know, “the worse of the worst,” and “a bunch of towel heads and dirt farmers” and such... it’s the only reasonable explanation, is that they didn’t want us to trust them, they didn’t want us to develop any type of a friendship or relationship with them whatsoever. As I’ve said before, prior to us leaving, we went to Ground Zero. The day we were leaving, we went to Ground Zero. And I can only imagine the purpose behind that was for propaganda. You know, take us to the place where 9/11 happened, and tell us that Islam and Muslims are to blame. Take us to Guantanamo, well obviously everybody’s going to be riled up. It’s going to be an effective means to getting the job done.

I think a lot of people initially were buying into the propaganda of it. And fortunately, by the end, I can say that maybe only half of them were still buying into the propaganda. Um, I myself, as soon as we got to Ground Zero, I remember particularly reading one comment that somebody had written on the wall, “This is the worst tragedy to happen to all of mankind.” And, as I was reading this comment, I just kind of snickered and started laughing. And, you know, my company’s behind me, and they look and they’re like, “What are you laughing about? This is Ground Zero. 2700 people died here. This is a tragedy.” And I’m like, “Yeah, it’s a tragedy. It’s not the worst one ever.” Like, “What are you talking about, yes it is.” I’m like, “The Holocaust wasn’t worse? The Armenian genocide? The Crusades? These things didn’t matter?”
The website requests donations to help them with their work. I recommend supporting this unique and important work.

Jared Loughner's Possible Mental Illness

Originally posted at Firedoglake/MyFDL

As more details are revealed about the background of purported 22-year-old shooter Jared Loughner, who is in custody currently for the shooting in Tucson today of Congresswoman Gabrielle Giffords, Federal Judge John Rell and a number of others, at least five of whom have died, a number of people are speculating about his possible mental illness. One diagnosis that keeps arising is schizophrenia. It's worth looking into what that might mean.

Over the course of my psychology career, I have worked with schizophrenic individuals, and most are quite afraid of the world, and are far more likely to be victims than victimizers. However, there are a small minority whose delusions have led them to commit crimes.

I am a licensed psychologist and from afar, and am not in the position to diagnose Mr. Loughner. However, one can make some initial impressionistic comments based upon the video content he posted on YouTube. The autistic, in the sense of highly encapsulated and personal, nature of his thought processes, his emphasis on coercion from without (see his discussion about being taught letters of the alphabet), the strange nature of his logic and language, the paranoid attitude toward the world in general, are consistent with known cases of schizophrenia, paranoid type.

I cannot know if he is the shooter, but his videos do display a garbled mixture of political concerns, and there is a great deal about conscience (“conscience dreams”), about not doing wrong, about the definition of “terrorist”, about “grammar” and “currency”, about “brainwashing” and “mind control”. At times, appears as if he’s grappling with something struggling inside himself.

There are also indications of a sense of multiple internal selves, or a dissociated kind of experience (“conscience dreaming”) that may also mean he had dissociated personality as well. In fact, this combination of dissociated identity and schizophrenia is much more highly associated with violence than schizophrenia alone. Then again, his comments may only appear to indicate such dissociative processes, and be better accounted for by a thought disorder.

If one researches the words “conscience dreaming” online, you will find a YouTube video with that title, not by Mr. Loughner, and no connection with the latter is inferred, except that he may have watched the video. The video concerns three characters, The Agent, The Assassin, and The Dream Maker. There is also one imprisoned anonymous character. I find it quite coincidental to say the least that a phrase the supposed shooter used a number of times links to such a video which has such characters in it.

I would caution against implying any politics to someone who appears so disturbed, as his interpretation of political symbols and phrases are interpreted in a highly idiosyncratic and irrational way. However, if he were susceptible to violence, then the targets available by the given society, i.e., the rhetoric out there in the society, would have pointed him towards liberals, leftists, Muslims, or other minorities, and that kind of rhetoric has mainly been from the right-wing, as has been copiously commented upon.

As for whether such a person could be manipulated, it’s possible, but if he is as insane as he appears, he would have been a very unstable person upon which to base any such conspiracy. I tend to think, despite his talk about mind control and brainwashing, that he was not the subject of any such conspiracy. More likely, these concerns are more about such an individuals anxieties and paranoia about being controlled from without, about things outside himself threatening to invade his personal world. Concern with brainwashing is a common thread in narratives from schizophrenic individuals.

However, this doesn’t mean that mind control conspiracies by the government don’t exist. I’ve documented government documents, including of contemporary vintage, that prove such activity by the government still occurs. If one reads the history of this kind of research, attempts to really use mind control are not applied to schizophrenic individuals, though one does look for highly suggestible individuals, and then apply drugs and hypnosis and other programming techniques. The success or failure of such enterprises is highly classified.

My condolences to all who were affected by this terrible tragedy in Tucson today.


Here’s an example taken from one of Mr. Loughner’s videos, showing the strangeness of his thinking and language, which is circular, syntactically intact, but with extremely opaque meaning, which relies on repetitiveness. The language implies something very profound, which only the thinker understands:

Firstly, the current government officials are in power for their currency, but I’m informing you for your new currency! If you’re treasurer for a new money system, then you’re responsible for the distribution of a new currency! We now know — the treasurer for a new money system, is the distributor of the new currency. As a result, the people approve a new money system which is promising new information that’s accurate, and we truly believe in a new currency. And above else, you have your new currency, listener?

Second, my hope is for you to be — literate! If you’re literate in English grammar, then you comprehend English grammar. The majority of people, who reside in District 8, are illiterate — hilarious! I don’t control your English grammar structure, but you control your English grammar structure.

This is not the ramblings of a right-wing crackpot, which some have claimed Loughner to be, but gibberish. This doesn't take away from the possibility Loughner reacted to right-wing propaganda, but quite likely out of madness, not political motivation, such as we understand such motivation.

Obama "Stealth Transfer" of Gitmo Prisoner, Algerian Forcibly Repatriated

Originally posted at Firedoglake

The Obama administration has shown a blatant disregard for international treaties and basic human rights in its second forcible deportation from Guantánamo of an Algerian national in the last six months. On January 6, the administration secretly and forcibly repatriated 48-year-old Farhi Saeed bin Mohammed to Algeria, which he reportedly fled in the 1990s, trying to escape threats from Islamic extremists. In a press release from Center for Constitutional Rights (CCR), which condemned "in the strongest possible terms" the deportation, CCR noted that "Mr. Mohammed has long been cleared of any connection with terrorism."

Farhi had been ordered released from Guantánamo , when District Court Judge Gladys Kessler granted his habeas petition. He had spent nearly nine years at the U.S. prison facility, most of the time in maximum security solitary confinement. While the former itinerant laborer said he had traveled to Afghanistan to find a wife for himself, the Pentagon presented "evidence" from unreliable informers to frame Mr. Mohammed as a supporter of Al Qaeda. Presumably, Judge Kessler was unimpressed by this evidence. What is undisputed is that after 9/11 and the U.S. invasion of Afghanistan, Farhi fled to Pakistan where he was captured and subsequently transferred to Guantanamo in 2002.

Once cleared by the District Court, Mr. Mohammed fought the government not to be sent back to his native Algeria, fearing persecution by either Islamic militants or by the government. Indeed, every Algerian Guantanamo prisoner sent back to that country thus far has been initially arrested and put on trial, though none have been convicted. U.S. authorities have said they conducted a "comprehensive review" of Farhi's case prior to his release. The U.S. government maintains that "the Algerian government has provided so-called 'diplomatic assurances' – promises to treat returned detainees humanely.” But Human Rights Watch watch replied that "research has shown that diplomatic assurances provided by receiving countries, which are legally unenforceable, do not provide an effective safeguard against torture and ill-treatment. Algerian human rights groups report that torture and other cruel, inhuman, or degrading treatment are at times used on those suspected of terror links."

Torture and Persecution in Algeria

Indeed, the last U.S. State Department Human Rights Report on Algeria, released February 25, 2009, indicated numerous problems with conditions in that country. While torture and other cruel, inhuman, or degrading treatment or punishment is illegal, human rights activists "local human rights activists reported that government officials employed such practices to obtain confessions," and "impunity remained a problem." The report singled out a February 2008 incident when an inmate protest on prayer conditions resulted in prison guards handcuffing, stripping and beating "approximately 80 prisoners with iron bars and sticks."

The State Department report also indicated noted that, except for the International Red Cross, all other human rights groups are forbidden to inspect conditions at Algerian military and high-security prisons and detention centers. Detainees are often held in jail without charges for months on end, and receive little or no medical care. The report also said, "in practice authorities did not completely respect legal provisions regarding defendants' rights and denied due process. Military courts try all "cases involving state security, espionage, and other security-related offenses involving military personnel and civilians," but only rarely is any information given about these proceedings. The government monitors "the communications of political opponents, journalists, human rights groups, and suspected terrorists," as well as political meetings. The country remains under rule of an emergency degree. Meanwhile, radical Islamic extremists belonging to al-Qa'ida in the Islamic Maghreb (AQIM) have "issued public threats against all 'infidels' and 'apostates' in the country, both foreigners and citizens, killing approximately 160 people in the country in 2008.

A prisoner or refugee cannot by international law be returned to a country where they fear persecution or death. This principle is enshrined in the UN Convention Against Torture treaty to which the U.S. is signatory: "No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture."

Furthermore, Article 33 of the United Nations Convention Relating to the Status of Refugees (July 28, 1951), to which the U.S. is also signatory, states: "No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion." (A 1967 Protocol expanded the Convention's coverage from European to all refugees.) There is no question that Farhi meets the Convention's definition of a refugee, and has since leaving Algeria in the 1990s, until wrongly apprehended by the U.S. in 2002.

The Role of Congress and the Courts

It is notable that Congress has played a role in this administration's flaunting of international law and decency. As Andy Worthington and others have pointed out, Congress has prevented the Obama from "bringing any Guantánamo prisoner to the US mainland for any reason". In addition, as I pointed out in an article on the forcible deportation of Algerian Guantánamo prisoner Abdul Aziz Naji in July 2002, Congress has an oversight role over the release of any Guantánamo prisoner.

According to the 2010 Homeland Security Appropriations, Interior Appropriations, Consolidated Appropriations, and Defense Appropriations Acts, all of which contain similar language on the subject, no funds are to be appropriated for the transfer of a Guantanamo prisoner to another state unless 15 days prior to release the President submit to Congress, "in classified form," a statement regarding any risks to national security or U.S. citizens, the name of the prisoner and country of release, and "the terms of any agreement with the country or freely associated state that has agreed to accept the detainee." (See PDF link.)

At that time, Senator Carl Levin and Senator Dianne Feinstein's offices confirmed they had been informed at least 15 days in advance of Naji's deportation. There's no reason to doubt they had the same notice in the case of Farhi Saeed bin Mohammed, and essentially signed off on the forcible deportation, demonstrating Congressional complicity in this flagrant violation of the laws of the land.

Mr. Mohammed's case had been high-profile. After the granting of his habeas petition, he fought a repatriation to Algeria, for the reasons stated earlier, and Judge Kessler granted that request. But, as Larkin Reynolds explains at Lawfare, "the D.C. Circuit later reversed that injunction in July, however, in an expedited summary proceeding." Farhi's attorneys then asked the Supreme Court for a stay of the Circuit court's decision. While their petition was denied last July, another petition regarding the transfer issue was sent to the Supreme Court last November. According to Reynolds, "The government’s response to the petition is due on February 4, 2011." But the forced deportation of Farhi apparently makes that decision moot.

David Remes, Farhi's counsel in the Supreme Court case told Lawfare, the Obama administration's actions amounted to a "stealth transfer":

The government shipped Mr. Mohammed back to Algeria against his will –- the second involuntary transfer of an Algerian in the past six months -– giving us no advance notice and therefore no chance to resist. The government may also intend Mohammed’s transfer to moot his petition for review in the Supreme Court, in which he challenged the government’s right to make exactly this kind of involuntary transfer, that is, a transfer where the detainee fears he will be tortured or abused if he is returned. The government has used this tactic to avoid judicial review of its actions in other cases involving military detention of war-on-terror captives -– Padilla, Al-Mar’i, and Abu Ali are examples. From Mr. Mohammed’s case, it’s apparent the government wants to avoid public scrutiny too.

The Role of the Democratic Party

The government's actions in the case of should be sharply condemned, but outside of some human rights groups, almost nothing is being said or reported on this crime by our own government. (The Washington Post did report the story.) The fact that a Democratic administration, and practically up to the time he was secretly deported, a Democratic Congress, were the primary actors in this decision is something that appears to fly over the heads of most Democratic Party and Obama supporters, for whom nothing, not even plans to issue an executive order allowing indefinite detention of prisoners at Guantánamo, seems to move to principled action.

The U.S. currently holds 173 detainee-prisoners at Guantánamo. Three other Algerians remain at the Naval prison facility, also fearing forced deportation for reasons similar to that of Farhi Faheed bin Mohammed, and Abdul Aziz Naji. The three other cleared Algerians are Motai Saib, Djamel Ameziane and Nabil Hadjarab, and Andy Worthington covered their stories in an article in July 2009.

This latest move by the Obama administration must have thrown fear into these prisoners, assuming they have heard of it. But it should throw fear into Americans as well, as their government has shown that it has little patience for such things as the rule of law. Consider these unlawful deportations along with the story of the torture of 19-year old American citizen Gulet Mohamed last month by U.S. ally Kuwait, after he was placed on a no-fly list by the Americans. The U.S. reportedly collaborated in Mohamed's detention, and should be held partly responsible for Mohamed's torture.

Torture-linked Shrink's Army Program Labels Some Soldiers "Spiritually Unfit"

Originally posted at Firedoglake

Jason Leopold has posted a new article at Truthout, describing how an "experimental, Army mental-health, fitness initiative" called Comprehensive Soldier Fitness (CSF) is drawing criticism from civil rights groups and rank-and-file soldiers by testing military personnel for "spiritual fitness."

CSF appears to be the brainchild of Brig. Gen. Rhonda Cornum and Dr. Martin Seligman, the psychologist who developed the theories of "learned helplessness" and "learned optimism." Jane Mayer, Scott Shane, and others have connected Seligman to talks at San Diego's SERE school in May 2002, where he discussed, in Seligman's own words, "how American troops and American personnel could use what is known about learned helplessness and related findings to resist torture and evade successful interrogation by their captors." Notorious SERE/CIA interrogator-psychologists James Mitchell and Bruce Jessen were present at the Seligman talk. Former Air Force Colonel Steve Kleinman told Jane Mayer that he knew Mitchell for years, and "learned helplessness was his whole paradigm."

According to Jason Leopold, five months prior to the May 2002 SERE lecture:
... Seligman hosted a meeting at his house that was attended by Mitchell, along with the CIA's then-Director of Behavioral Science Research, Kirk Hubbard, and an Israeli intelligence agent. Seligman has claimed he was totally unaware his theory on Learned Helplessness was being used against detainees after 9/11 and denied ever engaging in discussions about the Bush administration's torture program with Mitchell, Jessen, or any other government official.
But Seligman's SERE days appear to be behind him, and he has repackaged himself as "Dr. Happy." His new "learned optimism" theories, supposedly sold in program format (for millions of dollars) to the Army as a way to reduce PTSD and suicide rates, are instead packaging conformist and religious ideologies in the name of resiliency "fitness" for the Army.

CSF examines "spiritual fitness" with questions like "I am a spiritual person, my life has lasting meaning, I believe that in some way my life is closely connected to all humanity and all the world." One soldier tested last month told Truthout that he was labeled "spiritually unfit" because he answered the "not like me at all" box. As a result, the Army has told him he "may lack a sense of meaning or purpose in his life." Presumably, like other soldiers with low spirituality scores, he'll have to attend remedial courses and "be forced to participate in exercises that use religious imagery to 'train' soldiers up to a satisfactory level of spirituality."

According to the Truthout article, the Military Religious Freedom Foundation (MRFF) has sent letters to the Army demanding it "immediately cease and desist administering the 'spiritual' portion of the CSF test.

The fact the Army is enforcing religious ideology upon soldiers is already outrageous enough, but the piquant irony by which the primary theorist of the program is also one of the primary theorists behind the use of certain techniques to break down and torture people, and whose theories were used by DoD/CIA psychologists to devise a diabolical torture program, well... one's head could spin for days processing the internal contradictions. But that's America today, a torturing country that uses huckster psychology to promote ersatz spirituality in soldiers sent to invade foreign countries for the purpose of selling arms and controlling oil and gas supplies.

What's next? Will atheism be pronounced a new form of "material support to terrorism"? Will Elmer Gantry replace Robert Gates as next Secretary of Defense? Gates has been President Obama's Secretary of Defense nearly as long now as he served as same in the administration of George W. Bush.

Truly, nothing can be considered strange anymore.

Psychologist Organization Protests to Gates on Bradley Manning's Solitary Confinement

Psychologists for Social Responsibility (PsySR), a non-profit organization of psychologists committed to social change and social justice, has written a letter to Secretary of Defense Robert Gates, protesting "the needless brutality of the conditions to which 23-year-old PFC Bradley Manning is being subjected" at the Marine Corps brig at Quantico, Virginia. He has been accused of unauthorized access to classified material, some of which he allegedly downloaded to his computer, as well as other computer and security-related charges.

It is widely speculated that these charges relate to materials turned over to the Wikileaks website, including a video of an Apache helicopter attack civilians in Baghdad, the Iraq War logs, and thousands of State Department diplomatic cables. The military charge sheet accuses Manning of "wrongfully introducing more than 50 classified United States Department of State cables onto his personal computer, a non-secure information system." It also alleges he downloaded a Powerpoint presentation, and "a classified video of a military operation filmed at or near Baghdad, Iraq, on or about 12 July 2007."

Manning was held for approximately three weeks at Camp Arifjan in Kuwait before being transferred to Quantico, where he has remained in solitary confinement since late last July. In an article last month, I reported on PFC Manning's current psychological state, as best as I could determine from speaking to David House, who had just visited him, and on the deleterious effects of solitary confinement in general. PsySR's letter speaks at length also about the harsh conditions of solitary, and notes "no such putative risk can justify keeping someone not convicted of a crime in conditions likely to cause serious harm to his mental health."

Isolation is truly a form of torture, and one often practiced in the so-called civilized world. A vicious form of solitary confinement known as “Special Administrative Measures” or SAMs were imposed by the Bush Administration Department of Justice on Syed Fahad Hashmi, and renewed by Attorney General Holder under President Obama. The SAMs meant Hashmi was kept in 23-hour lockdown and isolation before trial for three long years.

While it is used to break and control prisoners in America's Supermax prisons, when used on accused prisoners, such as the detainees at Guantanamo, it can be used to "exploit" the prisoner. Such "exploitation" is a key component of torture programs, as the torture regime seeks not just information, but ways to manipulate prisoners for political benefit, or for use by intelligence agencies. Recently, Wikileaks' Julian Assange told Sir David Frost on Frost's interview program that airs on English AlJazeera that he believes the tortuous conditions of Manning's solitary confinement are meant to force Manning to implicate him in supposed crimes against the American government. (See video of the Assange-Frost interview here.)

Assange has repeatedly said he does not know if Manning leaked the material to Wikileaks or not, but noted in an interview with Cenk Uygur at MSNBC last month:
If we are to believe the allegations, then this man acted for political reasons. He is a political prisoner in the United States. He has not gone to trial. He's been a political prisoner without trial in the United States for some six or seven months. That's a serious business. Human rights organizations should be investigating the conditions under which he is held and is there really due process there?
If there is one aspect of Manning's situation I wish PsySR had emphasized more, it concerns the use of bogus Prevention of Injury (POI) orders to justify some of the conditions of Manning's imprisonment, including use of a rough, heavy "suicide blanket," limitations on time out of his cell, waking him in the night to "check" on him, as well as "checking" on him every five minutes or so during the day to ask if he is alright, even though he is under 24-hr. video surveillance. In addition, he is not allowed any personal items in his cell. He is not allowed to exercise in his cell, either. While it supposedly is aimed at protection against suicidal self-harm, the POI orders amount to psychological harassment and cruel treatment. Rather than "protecting" PFC Manning, the orders assist in breaking him down psychologically.

The POI orders are supposedly in place due to an assessment made by military mental health professionals. But reportedly a military psychiatrist found Manning not to be suicidal, and it's unclear why he remains under POI orders. Quantico Public Affairs Officer Lt. Brian Villiard told Dennis Leahy at A World Without Borders last week that "a board that meets 'frequently' to reassess the [POI] situation."

What follows is the text of the PsySR letter. PsySR is not affiliated with the larger American Psychological Assocation (APA). Neither APA nor the American Psychiatric Association has apparently made any statement on Manning's onerous conditions of confinement.
PsySR Open Letter on PFC Bradley Manning's Solitary Confinement

January 3, 2011

The Honorable Robert M. Gates
100 Defense Pentagon
Washington, DC 20301

Dear Mr. Secretary:

Psychologists for Social Responsibility (PsySR) is deeply concerned about the conditions under which PFC Bradley Manning is being held at the Quantico Marine Corps Base in Virginia. It has been reported and verified by his attorney that PFC Manning has been held in solitary confinement since July of 2010. He reportedly is held in his cell for approximately 23 hours a day, a cell approximately six feet wide and twelve feet in length, with a bed, a drinking fountain, and a toilet. For no discernible reason other than punishment, he is forbidden from exercising in his cell and is provided minimal access to exercise outside his cell. Further, despite having virtually nothing to do, he is forbidden to sleep during the day and often has his sleep at night disrupted.

As an organization of psychologists and other mental health professionals, PsySR is aware that solitary confinement can have severely deleterious effects on the psychological well-being of those subjected to it. We therefore call for a revision in the conditions of PFC Manning’s incarceration while he awaits trial, based on the exhaustive documentation and research that have determined that solitary confinement is, at the very least, a form of cruel, unusual and inhumane treatment in violation of U.S. law.

In the majority opinion of the U.S. Supreme Court case Medley, Petitioner, 134 U.S. 1690 (1890), U.S. Supreme Court Justice Samuel Freeman Miller wrote, "A considerable number of the prisoners fell, after even a short confinement, into a semi-fatuous condition, from which it was next to impossible to arouse them, and others became violently insane; others still, committed suicide; while those who stood the ordeal better were not generally reformed, and in most cases did not recover sufficient mental activity to be of any subsequent service to the community." Scientific investigations since 1890 have confirmed in troubling detail the irreversible physiological changes in brain functioning from the trauma of solitary confinement.

As expressed by Dr. Craig Haney, a psychologist and expert in the assessment of institutional environments, “Empirical research on solitary and supermax-like confinement has consistently and unequivocally documented the harmful consequences of living in these kinds of environments . . . Evidence of these negative psychological effects comes from personal accounts, descriptive studies, and systematic research on solitary and supermax-type confinement, conducted over a period of four decades, by researchers from several different continents who had diverse backgrounds and a wide range of professional expertise… [D]irect studies of prison isolation have documented an extremely broad range of harmful psychological reactions. These effects include increases in the following potentially damaging symptoms and problematic behaviors: negative attitudes and affect, insomnia, anxiety, panic, withdrawal, hypersensitivity, ruminations, cognitive dysfunction, hallucinations, loss of control, irritability, aggression, and rage, paranoia, hopelessness, lethargy, depression, a sense of impending emotional breakdown, self-mutilation, and suicidal ideation and behavior” (pp. 130-131, references removed).

Dr. Haney concludes, “To summarize, there is not a single published study of solitary or supermax-like confinement in which non-voluntary confinement lasting for longer than 10 days where participants were unable to terminate their isolation at will that failed to result in negative psychological effects” (p. 132).

We are aware that prison spokesperson First Lieutenant Brian Villiard has told AFP that Manning is considered a “maximum confinement detainee,” as he is considered a national security risk. But no such putative risk can justify keeping someone not convicted of a crime in conditions likely to cause serious harm to his mental health. Further, history suggests that solitary confinement, rather than being a rational response to a risk, is more often used as a punishment for someone who is considered to be a member of a despised or “dangerous” group. In any case, PFC Manning has not been convicted of a crime and, under our system of justice, is at this point presumed to be innocent.

The conditions of isolation to which PFC Manning, as well as many other U.S. prisoners are subjected, are sufficiently harsh as to have aroused international concern. The most recent report of the UN Committee against Torture included in its Conclusions and Recommendations for the United States the following article 36:

"The Committee remains concerned about the extremely harsh regime imposed on detainees in “supermaximum prisons”. The Committee is concerned about the prolonged isolation periods detainees are subjected to, the effect such treatment has on their mental health, and that its purpose may be retribution, in which case it would constitute cruel, inhuman or degrading treatment or punishment (art. 16).

The State party should review the regime imposed on detainees in “supermaximum prisons”, in particular the practice of prolonged isolation." (Emphasis in original.)

In addition to the needless brutality of the conditions to which PFC Manning is being subjected, PsySR is concerned that the coercive nature of these conditions -- along with their serious psychological effects such as depression, paranoia, or hopelessness -- may undermine his ability to meaningfully cooperate with his defense, undermining his right to a fair trial. Coercive conditions of detention also increase the likelihood of the prisoner “cooperating” in order to improve those circumstances, even to the extent of giving false testimony. Thus, such harsh conditions are counter to the interests of justice.

Given the nature and effects of the solitary confinement to which PFC Manning is being subjected, Mr. Secretary, Psychologists for Social Responsibility calls upon you to rectify the inhumane, harmful, and counterproductive treatment of PFC Bradley Manning immediately.


Trudy Bond, Ph.D.
Psychologists for Social Responsibility Steering Committee

Stephen Soldz, Ph.D.
President, Psychologists for Social Responsibility

For the Psychologists for Social Responsibility Steering Committee
An article by Dennis Leahy at the Bradley Manning Support Network website describes how concerned readers can register their opinions with the military authorities (bold emphasis in original):
The Bradley Manning Support Network calls upon Quantico base commander COL Daniel Choike and brig commanding officer CWO4 James Averhart to put an end to these inhumane, degrading conditions. Additionally, the Network encourages supporters to phone COL Choike at +1-703-784-2707 or write to him at 3250 Catlin Avenue, Quantico, VA 22134, and to fax CWO4 Averhart at +1-703-784-4242 or write to him at 3247 Elrod Avenue, Quantico, VA 22134, to demand that Bradley Manning’s human rights be respected while he remains in custody.
Full disclosure note: I have been a paying member of PsySR, though I have not participated in any organizational activities, nor am I a member of any of their committees. Any of my own opinions expressed here are my own, and cannot be attributed to PsySR.

Monday, January 3, 2011

Dr. Welner Defends His Testimony in Khadr Trial, Spreads U.S. Propaganda on Detainee "Recidivism"

Originally posted at Firedoglake/MyFDL

On Christmas Eve, the Washington Post published an op-ed by forensic psychiatrist Michael Welner, "What I really said about radical jihadism." Dr. Welner achieved some notoriety for his testimony in the sentencing phase of the trial of fomer child soldier and Guantanamo prisoner, Omar Khadr. Mr. Khadr was the first former child soldier tried for war crimes by the United States in living memory. Sentenced to forty years in prison, due to a stipulation that was part of a plea bargain that garnered a confession from the formerly tortured Khadr, his sentence has been reduced to eight years, some at Guantanamo, where he remains imprisoned in solitary confinement, and some in Canada, upon a presumed repatriation at some point in the future.

As I pointed out at the time, even before he testified, Dr. Welner was telling Steven Edwards of the Canadian National Post that the young Khadr had failed to "publicly repudiat[e] al Qaida, as civilized Muslims should." Nor was Dr. Welner above a sly comparison of the young Omar Khadr, who has spent his entire brief adulthood in U.S. custody, with America's arch enemy (and former ally) Osama bin Laden.
“When one leaps to the conclusion about Omar Khadr’s future because he is friendly, one might recall that Osama bin Laden has always been described as gentle, likeable and charming,” New York-based Welner told Postmedia News.
The "Context" of "Radical Jihadism"

In a December 5 op-ed, also for the Washington Post, "Radical jihadism is not a mental disorder," retired Brigadier General (and child and adolescent psychiatrist) Stephen N. Xenakis, critiqued Welner's testimony at trial. Xenakis himself was a member of the Khadr defense team, and spent approximately 200 hours in clinical meetings with Mr. Khadr. While he was on the witness list for the sentencing phase of the military commissions trial, Dr. Xenakis never testified. (Andrea Prasow's theory for the failure to testify, posted at The Jurist, strikes me as more likely than Xenakis's own statement that the defense thought Omar Khadr's own testimony more powerful than that of his mental health witnesses.)

In his op-ed, Dr. Xenakis wrote:
"In my professional opinion, Omar Khadr is at a high risk of dangerousness as a radical jihadist," Welner said. Based on hundreds of hours of reviewing records and interviewing witnesses, and 7 to 8 hours of examining the prisoner, the doctor said he concluded that Khadr was a radical jihadist who was at risk of inspiring others to violent acts in the future.
Dr. Welner was nonplussed, replying that Xenakis had "mischaracterized" his testimony. "Assessing risk of dangerous jihadist activity borrows from clinical understandings about criminal and violent recidivism," Welner wrote, "but it must reflect the context of actual jihadist violence or an individual's ability to facilitate that violence." He added that his risk assessment on Mr. Khadr relied upon "statistical base rates" and cited a recent report from the director of national intelligence which noted that "the figures of released Guantanamo detainees who return to active battle have climbed sharply from just 6 percent in 2008 to 25 percent."

Lies, damned lies, and statistics

Now, Dr. Welner never bothers to mention that at the time of trial, the latest figures on recidivism from Guantanamo detainees was around 5%, as reported by the Department of Defense, as was finally conceded by the New York Times in an article in June 2009, after considerable controversy about over-reporting recidivism statistics. The Times noted that discrepancies which led them to report the figure as a higher 1-in-7 recidivism rate were due to adding in those detainees identified as "suspected of engaging in terrorism." (See also this May 2009 article by Lara Jakes in USA Today, which directly reports the Pentagon as giving a 5 percent recidivism rate.)

But even the latter figure is extremely questionable, as an earlier report by Professor Mark Denbeaux, attorneys Joshua Denbeaux and R.David Gratz, and researchers from the Seton Hall Law Center for Policy and Research proved in a scholarly examination of government recidivism claims published last year. The Seton Hall report demonstrates shoddy record-keeping by the Pentagon (at least two reported recidivist "terrorists" were never even at Guantanamo; some of those released took up arms against Morocco, Russia, and Turkey, but not the United States). More egregiously, former detainees are described as "returning to the fight" solely because they engaged in "anti-U.S. propaganda."

Many of the same problems occur in the report, "Summary of the Reengagement of Detainees Formerly Held at Guantanamo Bay, Cuba" (PDF), released earlier this month. The report claims that of the released detainees, "[t]he Intelligence Community assesses that 81 (13.5 percent) are confirmed and 69 (11.5 percent) are suspected of reengaging in terrorist or insurgent activities after transfer." Suspicion of terrorist activities doesn't rely anymore on engagement in "anti-U.S. propaganda," but is predicated upon "[p]lausible but unverified or single-source reporting" (emphasis added).

In a press release following the Pentagon's latest release on "recidivism" figures for former Guantanamo detainees, Center for Constitutional Rights commented, the government "persists in using the language of 're-engagement' to describe individuals, despite the fact that the majority of them should never have been detained in the first place and were known early on by the government to be innocent. It is not possible to return to the battlefield if you were never there in the first place." Furthermore, "the latest report only summarizes its figures without actually naming any alleged recidivists or including any information that would enable meaningful scrutiny."

Whatever the actual figures, and the Pentagon is hardly a trustworthy source, Dr. Welner doesn't bother to mention that the "confirmed" figure is actually around 13 percent, not the 25 percent he cites. Of course, if Welner were honest, he would admit that he didn't have any such figures at the time of his evaluation, and that the only figures then open to him were those of the approximately 5 percent reported earlier.

In addition, as a psychiatric professional, Dr. Welner must know that extrapolation of dangerousness from "clinical understandings about criminal and violent recidivism" about which he is familiar, i.e., an American population, on a population largely culturally different is extremely problematic. For instance, norms on psychological tests refer to specific populations, and one would never think of administering, for instance, a recent journal article states that use of the Psychopathy Checklist, widely used to predict violent and non-violent recidivism, is based on of Anglo-American samples, and its generalizability "beyond these groups... is still in question and requires further research." But it is just for this reason that Dr. Welner relied so heavily upon the work of Danish correctional psychologist Nicolai Sennels, "precisely because Sennels has studied and treated large-scale groups of young Muslim and non-Muslim inmates."

Racist Psychology

In his op-ed, Dr. Xenakis wrote:
As the defense explained during cross-examination, Sennels is also known for inflammatory views on Islam, having claimed that "massive inbreeding within the Muslim culture during the last 1,400 years may have done catastrophic damage to their gene pool." Sennels has described the Koran as "a criminal book that forces people to do criminal things." Welner specifically repudiated these views in court.
But in this duel of op-eds, Dr. Welner went further, defending Sennels as a professional "lauded by the Danish Psychological Association." That Sennels "has now become a foe of unregulated Muslim immigration to Europe," Welner wrote, "does not negate what he learned from giving of himself to help Muslims stay out of prison."

Sennels is a racist ideologue, who uses psychological jargon to argue for the ejection of Muslims from Europe. He spews his views, based upon his work as a social worker and psychologist working with "antisocial individuals." Despite the fact that he admits, "I did not keep statistics of any kind," he believes he has enough evidence to conclude that "very few Muslims have the will, social freedom and strength of personality" to be integrated into European society.

Sennels continues. "Many young Muslims become assailants," he writes. "This is not just because of the Muslim cultural acceptance of aggression, but also because the Muslim honor mentality makes them into fragile, insecure men. Instead of being flexible and humorous they become stiff and develop fragile, glass-like, narcissistic personalities." And from this, the Danish psychologist, "lauded by the Danish Psychological Association," and Dr. Welner, concludes that the presence of Muslim populations in many Western countries means "the possibility that violent conflict will happen in Western cities all over the world is very great." His solution: "draconian measures"; "shutting down Muslim immigration;" "tightening the thumb screws on integration"; "and perhaps even sending Muslims who proved themselves unable to adjust to our Western secular laws back to their countries of origin."

Any data stemming from the work of Nicolai Sennels is irretrievably biased and unusable. It is to the ever-lasting detriment of the U.S. armed forces that they used an expert who relied upon unscientific approaches and racist ideology to testify on the dangerousness of a Guantanamo prisoner.

Predicting Dangerousness Has "Very Low Reliability"

Dr. Welner certainly sounds on the defensive in his article. He cites a previous Supreme Court decision, Estelle v. Smith (1981), and says that since that decision "forensic psychiatry has refined such dangerousness evaluation to focus on context." Welner has reason to be defensive. For one thing, Estelle v. Smith concerned the throwing out of such a dangerousness evaluation because the defendant's rights had been violated. The irony of this is not lost on those of us who have castigated the military commissions and the entire "war on terror" detainee policy as being outside the law. Additionally, the case includes this notable aside:
...some in the psychiatric community are of the view that clinical predictions as to whether a person would or would not commit violent acts in the future are "fundamentally of very low reliability," and that psychiatrists possess no special qualifications for making such forecasts. See Report of the American Psychiatric Association Task Force on Clinical Aspects of the Violent Individual 23-30, 33 (1974); A Stone, Mental Health and Law: A System in Transition 27-36 (1975); Brief for American Psychiatric Association as Amicus Curiae 11-17.
In a widely-cited 1994 essay, "The Dimensions of Dangerousness Revisited: Assessing Forensic Predictions About Violence" in Law and Human Behavior, sociologist Robert Menzies and colleagues, concluded that while some forensic clinicians "were able to predict some people, under limited temporal and contextual conditions, some of the time, under no circumstances could even the most encouraging performances be mustered as an argument for clinical or psychometric involvement in the identification of potentially violent clinical or correctional subjects." A later 2000 study on sexual predator evaluations and evidentiary reliability concluded there is a "large and consistent body of empirical evidence indicates that the standards of the profession include no ability to accurately predict dangerous behavior" (emphasis added).

That's not the kind of evidence that Dr. Welner would wish to enter into the record. Meanwhile, Omar Khadr, victimized more ways than one would care to count, now resides in the "fortress-like" maximum security prison, called Camp 5 at Guantanamo, where he endures near-24 hour solitary confinement, which as an article on isolation in the case of purported Wikileaks whistleblower Bradley Manning recently describes, is a pernicious form of torture.

Sunday, January 2, 2011

"Faustian Bargains": Jay Katz on the History of Human Medical Experimentation

The following is a reprint of a presentation given during a public meeting of the Advisory Committee on Human Radiation Experiments (ACHRE) by Dr. Jay Katz, a nationally-renowned doctor and ethicist, who was also a professor at Yale Law School. Dr. Katz died in November 2008. The presentation is in the public domain, and reprinted here as a public service.

One of the great problems with the public discussion of these issues is that they remain restricted to difficult to access professional journals, or expensive books generally unavailable to the average person (though the advent of Google Books has changed that somewhat). Keeping the discussion of informed consent and research issues out of the general public discourse has been one of the primary reasons that violations of ethical standards remains such a serious societal problem.

The New York Times obituary for Dr. Katz describes him as "an outspoken public advocate" about ethical rules for medical experimentation and the need for patient consent, who wrote about "the sometimes blurred line between medical ethics and the law" in books such as Catastrophic Diseases: Who Decides What? (1975) (written with Alexander M. Capron). Dr. Katz also served on the Tuskegee syphilis study ad hoc advisory committee that examined the ethical breaches of that study and made recommendations about strengthening informed consent rules and oversight.

Amazingly, this discussion has not been reprinted anywhere, but only appears on the National Security Archives (NSA) site at George Washington University, a real treasure for researchers, journalists and historians. The NSA obtained the Advisory Committee on Human Radiation Experiments (ACHRE) documents after ACHRE was dissolved in October 1995. (Readers trying to access that report from the NSA page will have trouble, as the link apparently changed. The ACHRE Final Report is now available at this link.)

Readers might wish to follow up Dr. Katz's presentation by reading the Truthout article by Jason Leopold and Jeffrey Kaye, Wolfowitz Directive Gave Legal Cover to Detainee Experimentation Program. This article, which includes comments by Prof. Capron, discusses changes to U.S. laws and Department of Defense policies on "informed consent" that took place in the months following 9/11. These changes significantly weakened informed consent rules and policies. Other articles that touch on possible recent government experiments on prisoners in the "war on terror" are also worth reading in light of the issues discussed here, including another recent article by Leopold and Kaye on dubious use of antimalarial drugs (for possible torture) at Guantanamo (and also here), a Seton Hall study on the same, and a Physicians for Human Rights report on CIA experiments on torture.

In the following article, all subheads have been editorially added, mainly to enhance article readability. I have added a few editorial remarks and notations, reformatted line breaks for flow and readability, and quietly fixed a few typos. Finally, I bold emphasized a few portions of the presentation for editorial emphasis.

The day for the presentation, the fourth such public meeting by the ACHRE advisory committee, was Wednesday, July 6, 1994. The place was the ballroom of the Vista Hotel, Washington, D.C.



DR. KATZ: I've assigned myself three tasks. I'll try to, of course, be as brief as possible. One is to present to you with some commentary the more significant dates in the history of the regulation of human experimentation; two, to make some comments on the inherent tension in the conduct of research; and, finally, to share with you, albeit most briefly, some of the lessons that I have learned during my 30 years' reflection on this history and the implications for the future regulation of human research.

So first the dates. In my prepared comments, which I hope will be eventually distributed to the Committee, I made some more extensive commentaries on the wonderful presentation of Susan Lederer's. And here because of the constraints of time, I only want to highlight one of the things that she told us during her presentation, namely, and I quote, "that many physicians believe that introducing an explicit requirement for consent would interfere not only with the practice of medicine, but also with the progress of medical science," end quote.

I think in a few words and with an economy of words, she captured one of the most important problems inherent in human research, to which I will come back again and again during this talk, because Susan alerts us here to the fact that investigators' concern that an abiding commitment to informed consent has far-reaching implications for the physician-patient relationship as well as for the conduct of research. And I believe that to this date, these concerns still pervade what is going on in human experimentation.

Early Codes of Medical Ethics as Regards Human Experimentation

Now to the dates: first, 1803. Thomas Percival at the request of the Manchester Infirmary of England published his code of medical ethics which with minor modifications became in 1947 the American Medical Association's first code of medical ethics.

Percival appreciated that medicine must develop innovative therapies in order to advance medical practice and admonish physicians only that in doing so, quote, "The gentlemen of the faculty should be scrupulously and conscientiously governed by sound reason, just analogy, or well-authenticated fact," end quote.

He said nothing about consent. Indeed, he commanded patients that, quote, "their obedience to the prescriptions of their physicians should be prompt and implicit. They should never permit their own crude opinions as to their fitness to influence the attention to them," end quote.

The AMA's code incorporated these instructions to patients. It omitted any reference to the ethics of innovative treatment or to human experimentation.

Eighteen thirty-three, William Beaumont's code, which Susan did discuss. [Editor note: Lederer was at the time assistant professor of the history of medicine at Yale. On May 18, 1994 ACHRE public meeting in the Washington Room at the Ramada Plaza Hotel in Washington, D.C., Dr. Lederer gave a presentation on the history of human experimentation in the United States. Regarding William Beaumont, she said:
One of the most famous instances of nontherapeutic human experimentation in the 19th century was the study of human digestion conducted by Army physician William Beaumont in the 1820s and 1830s. This story may be familiar to many of you, but it's an important milestone.

Beaumont was called in to treat a French-Canadian trapper, Alexis St. Martin, who had received a gunshot wound to the abdomen. Unable to close the wound, Beaumont realized his unprecedented opportunity to study the process of digestion in a living human being. In an unusual step, he actually contracted with St. Martin for permission and cooperation in his experimental program. St. Martin agreed in exchange for board, lodging, and $150 a year to assist and promote by all means in his power "such philosophical and medical experiments as the said William shall direct or cause to be made on or in the stomach" of him.

Now from all accounts, Beaumont and St. Martin had a difficult relationship. (Laughter.) St. Martin, who found many of the experiments uncomfortable -- these include, for example, tying a piece of meat on a string and putting it into the fistula and timing the digestive powers. St. Martin was often absent for projected periods of time, and Beaumont greatly resented the apparent ingratitude of his often recalcitrant subject. At no point, however, were there public criticisms voiced about these experiments and there was great interest in them.

Before the Civil War, such contractual arrangements between subjects and experimenters were unnecessary when white physicians used slaves as research subjects. In some instances physicians advertised and purchased blacks for the sole purpose of experiment.
Much more on medical experimentation on Black Americans in the early history of the United States can be found in Harriet A. Washington's book, Medical Apartheid. -- End editorial note.]

Three, 1865, Claude Bernard laid down his principles for the ethical pursuits of human experimentation. He enjoined the medical profession from doing anything that may be harmful to patients.

Bernard limited his focus to situations in which patient care, innovative therapy, and therapeutic experimentation become merged, excluding from consideration non-therapeutic research. Throughout he said nothing about patient subject consent.

Four, 1900. The Prussian Minister of Religious, Educational, and Medical Affairs' directive on human experimentation may be the first regulatory action that specifically addressed human experimentation. It set forth that research is prohibited unless, quote, "the person concerned has been clear unequivocally that he consents to the intervention," end quote.

In 1931 the German Reich Minister of the Interior promulgated regulations which were even more stringent and comprehensive than the Nuremberg Code.

Ethical Principles Disregarded

And I will not say more about these interesting historical events except they demonstrate to my satisfactions that we shouldn't pay too much attention to codes of ethics. They are largely being regarded [disregarded?]. Codes of ethics are written to the stars and to the heavens, and they only require meaning if they are surrounded by detailed commentary.

Remember what Rabbi Hillel said when a pagan said, "If you can tell me the essence of Judaism while standing on one leg, then I will join your religion." Rabbi Hillel thought for a moment, stood on one leg, and said, "Do unto others as you do unto yourself. The rest is just commentary. Go and learn it." It's the going and learning it which is the important issue, not the prescription.

And let me here only observe in passing because Susan talked about it at some length that, really, these kinds of principles were disregarded by the European and American research profession.

In the mid-Nineteenth Century, to add just one example, a famous investigator wrote this in an article published in a major scientific journal, quote, "Perhaps others will not be restrained from making further experiments often leading to the complete wrecking of the lives of the persons subjected to them.

"It would add considerably to my peace of mind in respect to the victims' state if these experiments were to spread the conviction" -- that's his experiments -- "that the secondary stage is contagious if they lead to the establishing of such an important truth, the suffering of a few individuals were not too high a price to be paid by mankind," by mankind, mind you, "for the attainment of such a truly beneficial and practical result," end quote.

Nineteen forty-seven, the Nuremberg Code. Since many of you have read my article on -- I hope that some of you have read my article on the consent principle of the Nuremberg Code. [Ed Note: Dr. Katz is most likely referring to his 1992 article, "The Consent Principle of the Nuremberg Code: Its Significance Then and Now."] Therefore, I shall limit myself to the briefest of observations.

The Nuremberg Code

Never before in the history of human experimentation, again, of course, except for the 1900 and 1931-1930 German regulations, and never since has any code or regulation put it so uncompromisingly, quote, "The voluntary consent of the human subject is absolutely essential," end quote.

But there is more. Principally one of the codes then immediately goes on to emphasize not the subjects' capacities to understand, but the investigators' obligation to desist from introducing into the consent process, quote, "any element of force, fraud, deceit, duress, overreaching, or other ulterior form of constraints or coercion," end quote.

The judges of the Allied military tribunal, thus, placed the emphasis where it first belongs, on the physician investigator, and not on the patient subjects, who are so frequently not only mistreated but then further degraded by allegations that they are too anxiety-ridden, too ignorant, too stupid to understand.

The Nuremberg judges did not appreciate the code's radical break with the past. Indeed, before setting forth their 10 principles the court observed that even, quote, "The protagonists of human experimentation agree that certain basic principles must be observed in order to satisfy moral, ethical, and legal concepts," end quote, and that, therefore, their code only lists them once again.

The tribunal had done more than that. Perhaps it was misled by the prosecution's chief medical witnesses and Alexander Ivy and Leo Alexander. Particularly Ivy invoked again and again the authority of the Hippocratic oath for the proper conduct of research since it is, and I quote here Ivy, "the golden rule of the medical profession necessary for the survival of the scientific and technical philosophy of medicine," end quote.

He was quite actually disingenuous in what he had done because he averred that these principles had been accepted by the American Medical Association.

On cross-examination, however, the defense made him admit that the guidelines Ivy cited in his June 1947 testimony had been published only 19 days after the prosecution's opening arguments. It is most likely that Ivy, who had studied the prosecution's pretrial records, reported his views on the ethics of medical experimentation to the AMA's Board of Trustees, who then, in turn, quickly issued their guidelines.

Seven, 1969. The Nuremberg Code was superseded by the World Medical Association's Declaration of Helsinki, which was revised twice. The requirement of informed consent is much less stringently reworded in Helsinki one than in the Nuremberg Code. It is not even listed as a basic principle.

To be sure, the Nuremberg Code requires modification, particularly with regard to research with children and mentally incompetent patients. But here is my question: Should its first principle have retained its majestic force?

New Regulations in the 1960s

Eight, 1962. In the wake of the Thalidomide tragedy, extensive congressional hearings were held on the adequacy of the then existing FDA regulations. Eventually they were revised, now requiring investigators to obtain the consent of human subjects in research with investigational drugs unless the investigators believed that obtaining consent was not feasible or in their professional judgment contrary to the best interests of such human beings. The Lord giveth, and the Lord taketh away.

The ambiguous language of these new consent provisions was never clarified, thus inviting wide variations in the application of the law.

In 1966, following the revelations of the Jewish Chronic Disease Hospital in Brooklyn, Brooklyn's experiments, during which elderly patients were injected with cancer cells to study the rate of rejection of live cancer cells in the wake of these revelations, the FDA regulations on consent were once again tightened.

But old problems remained. Let me only mention two: one, in abrogating the investigators' authority to dispense with consent on grounds that, quote, "the best interests," end quote, of patients required them to do so and in not doing so, doctors continued to wear two hats, that of investigator and that of physician for the patient; two, omitting patients in coma or otherwise incapable of giving consent to be enrolled in studies, sanctioned experiments, and seriously ill and terminally ill patients, even those in coma or close to death.

Nine, 1966, following a series of preliminary policy statements, the Surgeon General, William Stewart, issued three key guidelines which from then on should govern the conduct of human research of grantee institutions.

The guidelines were to assure that: one, the rights involved here of research subjects would be protected; two, investigators would obtain informed consent; and, three, the risks and potential benefits of the investigations would be assessed.

The implementation of these guidelines were vested in a review panel of investigators' peers at the research institutions. The number of lay members serving on these panels was not clearly specified.

Institutional assurances of compliance with the guidelines were mandated. The third guideline, calling for the establishment of what are now called institutional review boards, was most novel in scope. Moreover, it established the policy that the local research community should administer and review its own research practices in compliance with any regulations promulgated by PHS [Public Health Service] or NIH [National Institute of Health].

The Tuskegee Syphilis Study

Ten, 1972. As is often the case, the right hand does not know what its left hand is doing. In this instance, while NIH, PHS debated the scope of the new regulations, the PHS did not reevaluate its Tuskegee syphilis study to determine that the study was in compliance with its guidelines. The study continued for six more years, when it became a cost liability, and then was quickly terminated.

The facts of the study are well-known to you, and I will not give you any details except to remind you that the study started before the Nazi concentration camps, continued once the Nuremberg Code had been promulgated and did so for 25 more years.

In the final report of the Tuskegee syphilis study ad hoc advisory committee, we also made extensive recommendations for the future regulations of research. The cornerstone of our proposal was the establishment of a national human investigation board.

Senator Kennedy introduced a bill that incorporated that idea, but it died in committee. And at various congressional hearings that Senator Kennedy held, representatives of HEW [former Department of Health, Education and Welfare] argued that the department was in the process of drafting new regulations for the protection of subjects of research and that, therefore, it was not necessary to go as far as the Tuskegee syphilis study ad hoc advisory committee wanted to go.

Among recommendations that they were most troubled by, it seems to me, was that we wanted that board to be independent of NIH and PHS. And they wanted to retain authority over the ethical review of research practices.

The Rise of Institutional Review Boards

Eleven, 1974. The publicity surrounding the Tuskegee syphilis study led to the federal regulations for the protection of subjects of research. These regulations strengthen the role of local institutional review boards in supervising the conduct of research, requiring them to be in compliance with the new federal mandate.

Generally the IRBs were required to determine that the risks to the subjects be minimized and be reasonable in relation to anticipated benefits, that the selection of subjects be equitable, and that appropriate informed consent be obtained and documented.

Separate specific regulations also provided additional protection to any research activities that involved fetuses, pregnant women, prisoners, and children. Actually, they came a few years later.

IRBs were also charged to report violations of the regulations to the government, but otherwise no formal mechanisms were put in place whereby the activities of IRBs or investigators would be monitored by the federal government. Initially the regulations applied only to research funded by HEW.

Twelve, 1975. Senator Kennedy, once his bill on establishing a national human education board proved unacceptable to Congress, introduced another bill that created a national commission for the protection of human subjects of biomedical and behavioral research, which was inter alia charged to identify basic ethical principles that should underlie the conduct of human subjects research.

In 1978 the commission published its Belmont report on the ethical principles and guidelines for the protection of human subjects. I shall comment on that report very briefly later on.

Nineteen ninety-one. The federal regulations were amended to include all research involving human subjects conducted or supported or otherwise subjected to regulation by any federal department or agency.

And then, last, 1994. There are a number of bills being drafted on refining the regulations on human research.

Again, I will just say a few words, and I have a little bit more to say about it in my report. There are three other historical facts that should be mentioned here.

Experimentation, Common Law, and Informed Consent

One is that common law judges have really made few pronouncements over the centuries on the conduct of research. Put most briefly, what common law judges have said is that they believe that human experimentation was necessary, talking mainly, really, about innovative therapies, rather than human experimentation in the ways in which we talk about it now.

And they then added that either that kind of investigative activity must not depart too much from common medical practices or to say to doctors when they didn't like it, "Look, you do these things at your peril. Unless you prove the success of your treatment or of your innovative treatments, then you may have to face some unspecified legal consequences."

Two, I should say something more about the history of informed consent. That is the reason why I included the second article of mine in the materials distributed to you.

Let me just only emphasize once again what I've said there, that, really, it must be remembered that the doctrine of informed consent cannot easily be transformed, and surely not without considerable thought, into an ethical medical doctrine that should govern physicians' and physician investigators' disclosure and consent obligations in their interactions with patients and patient subjects.

Recall that the idea of patient economy is not to be found in the lexicon of medicine throughout the millennia of Hippocratic practices and that it only surfaced in medical discourse once informed consent was imposed upon medicine by alien common law judges, you might say by barbarian common law judges.

Three, I should say something about the few comments in a handful of cases made by federal judges about the conduct of research. Again, in my prepared version I've included one case: the LSD experiments conducted by the CIA with completely uninformed Army personnel.

The CIA LSD Experiments

When one of these cases ultimately ended up before the Supreme Court, Justice Scalia writing for the majority concluded that permitting Stanley even to sue the Army would, quote, "call into question military discipline and decision-making." [Ed. Note: This would have been the case of James Stanley, U.S. v Stanley, 483 U.S. 669 (1987), discussed in Ch. 3 of the ACHRE's Final Report. The Supreme Court invoked the Feres Doctrine to dismiss Stanley's case. See the discussion of the government's use of sovereign immunity in these kinds of cases in this 2003  article by James Bovard at The Future of Freedom Foundation. Stanley was "an army sergeant who volunteered in the late 1950s for a program supposedly testing protective clothing. The Army covertly drugged Stanley and many other soldiers with LSD to study the drug’s effects."]

The two eloquent dissents [to the majority opinion in U.S. v Stanley] would have some implications for our work. Justice O'Connor after referring to the Nuremberg Code and its first principle went on to say that, quote, "If this principle is violated, the least society can do is to see that the victims are compensated as best they can be by the perpetrators. I'm prepared to say that our Constitution's promise of due process of law guarantees this much," end quote.

And Justice Brennan concluded his dissent with these words, quote, "The subject of experimentation who has not volunteered is treated as an object example. Soldiers ought not be asked to defend a Constitution indifferent to their essential human dignity," end quote.

While this completes my sketchy account of the history, let me remind you that Susan commented on the fact that throughout this history, some investigators, like Walter Reed and such giants of medicine as Walter Cannon and Sir William Osler, spoke eloquently to the need of obtaining patient subjects' consent.

But whatever the impact of these lonely voices, the fact is clear that neither academic medicine nor the research community has taken the time to explore in any systematic way its obligations to subjects of research. [Emphasis added]

When I arrived on the scene in the early 1960s and began to teach in the area of human experimentation, any literature on the subject barely existed. Henry Beecher would soon in 1966 publish his seminal article on ethics in clinical research, which for years exposed him to considerable criticism and to little praise. [Ed. note: A darker side to Dr. Beecher's work, particularly in relation to LSD experiments conducted by Dr. Beecher related to the CIA's MKULTRA program, see  Alfred McCoy's article, "Science in Dachau's Shadow: Hebb, Beecher, and the Development of CIA Psychological  Torture and Modern Medical Ethics," in the Journal of the  History of Behavioral Sciences, Vol. 43, No. 4, Oct. 2007.]

Again, I have some comments on the Jewish Chronic Disease Hospital case, which illustrated some of my comments. But I will omit them at this time and hopefully will read it in my comments in the next few weeks.

Reading of the Jewish Chronic Disease Hospital case -- by the way, Sullivan, who was a chief investigator in the cancer injection experiments, received the most minimal kinds of sanctions by the Board of Regents of the State of New York.

And there was a rainbow on the horizon because the following year the American Association of Cancer Research elected him vice president of the association and a year later its president, for whatever reasons.

Reading of the entire case illustrates the license physicians have taken in the past with respect to disclosure and consent in therapeutic settings and how readily such license is extended to research practices. Clearly, at least until the mid 1970s, informed consent was not taken very seriously by the medical profession and the medical research community.

Now to point Part 2. Here I must paint with an even broader brush, and I want to bring three issues to your attention with respect to the tensions inherent in human research.

"The obfuscation of therapy and research"

One is the obfuscation of therapy and research. Susan correctly observed that experimentation in medicine dates back to antiquity. Though with exceptions until the age of medical science research was by and large conducted at the bedside with physicians trying their best to learn more about the treatment of disease and at the same time to benefit the patients under their care, human experimentation as we know it today is a creature of the scientific revolution which created a new breed of physician investigators during the mid 1850s. And their activities expanded in exponential fashion following World War II.

Yet, despite a radical transformation, which enlisted patients to serve the ends of science, physician investigators continued to view patient subjects more as patients than as subjects. And having been socialized as physician first, they did not take disclosure and consent very seriously.

After all, throughout medical history patients had been deemed too ignorant to understand medicine's esoteric knowledge. And patient subjects were considered even more incompetent to understand the intricacies of scientific investigations.

Thus, having been acculturated as physicians to exercise considerable authority over the medical decision-making process, they extended this authority to research.

In the process, they overlooked that whatever mandate they enjoyed to make decisions on behalf of patients when solely committed to their patients' interests could not necessarily be transferred to research settings where human beings were also used as means for other ends. Consider Tuskegee. Consider Fernald. [Chapter 7 of the ACHRE report looked at the radiation experiments by MIT researchers on institutionalized children in Massachusetts' Fernald school in the late 1940s and early 1950s.) By what authority could these subjects have been used for science's purposes?

Since our charge to investigate human radiation research takes us back to the 1940s, let me also remind you that the doctrine of informed consent was only promulgated in 1957 and did not receive its first more detailed, though inadequate, construction until 1960.

In that case, decided by the Kansas Supreme Court, the standard for disclosure was based on, quote, "the reasonable physician standard," end quote; that is, disclosures customarily made by physicians.

This, as others and I have argued, is no standard at all since physicians are most apt to follow the Hippocratic command, quote, "to conceal most things from the patient while attending to him, to give necessary orders with cheerfulness and serenity, revealing nothing of the patient's future or present condition," end quote.

It was not until 1972 that Judge Robinson, III of the D.C. Court of Appeals announced that in his jurisdictions, now followed by many others, informed consent must be based on a standard set by law.

He correctly noted that maintaining a medical disclosure standard would make informed consent meaningless or worse, quote, "We sense the danger that what, in fact, is no custom at all may be taken as an affirmative custom to maintain silence," end quote. This needed to be said, let me remind you, in 1972.

Thus, when we evaluate the status of informed consent before the mid 1970s, we must keep in mind that no legal and surely no medical standards existed which in any way could be considered as giving any complete meaning to physicians' obligations to make disclosure for therapy or research. The Nuremberg Code comes closest to doing so.

"Corrupting the Ethics of Medicine"

In short, at least until the mid 1970s, it was the ideology of medical professionalism, its benevolent paternalism, that shaped decisively disclosure and consent practices for therapeutic research.

Indeed, from the perspective of human rights, disclosure and consent practices became further undermined once the ideology of science joined the ideology of professionalism. [Emphasis added]

The quest of so-called value-free science to add advanced knowledge for the benefit of all mankind readily subverted other moral values; for example, the inviolability of human beings to unconsented invasions of their physical integrity.

Two, second tension, the involvement of the state. Until World War II medical research was largely conducted by physicians. The state had little interest in getting actively involved in research.

Susan may correct me, but am I right in saying that the malaria experiments were more the brainchild of the physician Walter Reed than the Army high command?

Even the Nazi concentration camp experiments began innocently enough when Sigmund Rascher asked Heinrich Himmler, for only, quote, "three political prisoners," end quote, so that he could conduct lethal high-altitude experiments.

Rascher had just returned from a medical conference that had discussed the medical problems German pilots encountered after having been shot down at higher than expected altitudes due to the advances in British aviation technology. The request was granted, and the three victims would soon become legions.

In this instance, the ideology of professionalism, the ideology of science, and the ideology of the state became joined, utterly corrupting the ethics of medicine and human decency.

In our own country, the human radiation experiments, the mustard gas studies, and the mind-altering drug research are telling examples of agencies of the state prodding medical science into directions we now deplore.

I can only note in passing that the involvement of the state was vastly different in Nazi Germany than in the United States. In Germany the state ideology that certain lives were not worth living inexorably led to Jews, gypsies, and a smaller number of Russians and Poles as well to be used for research purposes with unparalleled cruelty unheard of in the annals of human research.

But the research was also conducted because of the exigencies of war. The plight of German military personnel in the civilian population required quick solutions for many medical problems: typhoid fever, malaria, burns from incendiary bombs, prolonged exposure to the icy North Atlantic Sea, et cetera.

In our own country during World War II similar concerns, the use of poison, the expected use of poison gas by the Japanese once we invaded their home islands, and during the Cold War fears of what the Russians might eventually do to us, led to agencies of our government to involve scientists and physicians in the war and Cold War efforts.

What happened, however, was not state policy. And, of course, it was never imbedded in a national genocidal policy. This difference is crucial.

Yet, parallels exist between medical research in Nazi Germany and the United States. And the lessons to be learned deserve the critical scrutiny of future historians.

Secret Medical Research

Three, secrecy. Not different, however, is this, that agencies of our government participated in medical research and that they saw to it that the activities would be carried on in secret, unbeknownst for a long time to Congress and the public.

We shall always be indebted to Hazel O'Leary for lifting the veil of secrecy. I cannot put the Secretary's implications better than she did on Pearl Harbor Day of 1993, quote, "We were stranded and clouded in an atmosphere of secrecy," end quote. And then she added, quote, "I call it repression," end quote.

Secrecy has many faces. And here I would like to add in passing that the low-visibility decision-making of local institutional review boards is another form of secrecy which only a national human investigation board can remedy. [Emphasis added]

To return to the 1940s and 1970s, as physicians we participated in the secrecy. We were not innocent victims. We struck our own Faustian bargains.

In our Advisory Committee's deliberations, we should be careful not to make too much of the Cold War mentality. It was there, but its haunting question remains: Why did medical ethics and primum non nocere ["First, do no harm"] prove to be such ineffectual counterweights?

Finally now a few reflections on the lessons learned. The problem that has preoccupied me the most in my work on human experimentation is how human beings can be protected through informed consent, not in the sense of its current formulations, but in the sense yet to be formulated and then faithfully applied.

To do so requires that informed consent be grounded in the principle of respect for person, as bioethicists call it, or respect for individual autonomy and self-determination, as law calls it.

The history of human experimentation demonstrates that, at least until the last 20 years, consent has not been an uncompromising commitment to these principles. A perusal of the literature makes it clear that investigators have placed greater faith in their being, quote, "the guarantors of patient subjects' rights and safety," end quote.

The Nuremberg Code attempted to make a radical break with that tradition, but their pronouncement and the pronouncement by the American judgments on voluntary consent expressed the basic value deeply imbedded in our American jurisprudence: the right of citizens to autonomy and self-determination.

In my review on the regulations on the conduct of research, I have tried to demonstrate that medical science's commitment to individual autonomy continues to remain ambiguous.

The call for balancing the need to advance science for mankind's benefit and to protect the inviolability of subjects of research all too commonly tilts in favor of progress. The evidence for such kind of balancing can be found in the Declaration of Helsinki and in the celebrated Belmont report.

Problems with the Belmont Report

In response to Ruth Macklin's wonderful presentation [Ed. Note: is within the body of text linked to]  of ethical principles in human research,  I already expressed most  briefly my reservations about this report.

I find the Belmont report problematic because it did not state unequivocally that in research with competent subjects, its first principle, respect for person, can never be infringed upon except perhaps for reasons that must first be most clearly and most stringently justified and then also receive public approval. [Emphasis added]

The Belmont report's other two principles, namely beneficence and justice, need deserved consideration, but their place in research with competent patient subjects deserved explication that I was unable to discern in this document. The author's silence to my mind on that issue is telling.

I appreciate that the implications of what I'm setting forth here may be far-reaching. They may impede research by requiring physician investigators to take the time to explain themselves more fully to their patient subjects. They may make some research impossible to conduct because too many patient subjects may refuse to participate.

I do not wish to be seen as too dismissive of these concerns, but if they are concerns and concerns to be taken seriously, perhaps they should lead by invoking the principle of justice to compulsory participation in research by all of us.

As you know, I do not believe that the current federal regulations on the protection of subjects of research go far enough. Again, I set all of that forth in my St. Louis article which you have, and I've made some brief comments here which I will distribute to you. [Ed Note: I'm not sure which article Dr. Katz is referring to. For a list of article he provided the advisory committee, see here.]

The Immorality of Knowing and Not Knowing

I also quote from a recent article published. It is really a quite telling article written by two, at least one I know well, a very sensitive person. It's called "The Immorality of Not Knowing." It's in defense of research. [Ed. Note: Written by Ami Klin and Donald J. Cohan, the article was published in 1994 in Ethics in Child Psychiatry, and can be read currently as a chapter in a book online.]

And let me only quote -- I have some more in my prepared statement -- one very brief paragraph, quote, "There is an ethical responsibility to acknowledge ignorance. There's also an ethical mandate to conduct investigations responsively and respectfully but also unrelentlessly in order to acknowledge the property of those members of society who are most in need of its benefits and who are victimized by research inactions."

And this is my question: How do you reconcile, quote, "the immorality of not knowing," end quote, with the immorality of knowing?

Finally and in conclusion, the revelations of the Nazi concentration camp experiments led to the Nuremberg Code.

The revelations of the carelessness with which Thalidomide was made available to pregnant women then led to the informed consent requirements of the FDA regulations.

The revelations of the Jewish Chronic Disease Hospital cancer experiments contributed to the regulations of research supported by NIH and PHS.

The revelations of the Tuskegee syphilis study led to the federal regulations for protection of the subjects of research.

We are not confronted with the regulations of the human radiation experiments. They date to a time prior to 1974. We would, however, not be true to our responsibilities if we were to rest content of telling only that story without assuring the public that it would be better protected in the post-1995 period.

As I have suggested, we have an obligation to scrutinize contemporary research practices and determine whether we can rest assured that subjects of research are now adequately protected.

Whenever egregious practices, such as stir up the public conscience, surface, as the history of human experimentation amply demonstrated, that has been the time for change to occur. That window of opportunity is open to us and to capitalize on.

I hope that we shall seize this opportunity when writing a final report that not necessarily embodies my views or not necessarily embodies the views of any individual on the Advisory Committee, but that, more importantly, makes the public aware of the tragic choices that must be made when traveling on one road or the other road in the quest to advance science for society's benefit.

Thank you.

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