Letter to HHS on Proposed "Intelligence Surveillance" and Criminal Justice Exceptions to Human Subject Protections

The following was my response to a call for comments from the Department of Health and Human Services (HHS) regarding proposed changes in the federal rules regarding the protection of human experimental subjects. The deadline for comments was today, and the following reproduces what I sent HHS.

Outside academia and the departments that run Institutional Review Boards, the issues surrounding these changes may seem arcane. But as my letter documents, the issues on protection of human subjects in federal funded experiments touches on some of the most important issues of our time, not least the torture program ran by the CIA and Department of Defense in the past 15 years. Other comments can be read at the link provided above. My very modest contribution in no way touches many of the important issues raised by these proposed changes, and interested readers should peruse the comments of others to get a fuller picture of the stakes involved in these proposed changes.

Note: Rather than embed links, I have provided endnotes with links, which reproduces how I sent the letter to HHS. One interesting side benefit of drafting and posting this letter was that it allowed me to update old links that had gone missing or dead over the years. Sadly, the links to much of the relevant material (Project Shad, for instance), had changed or disappeared, as public interest in the subject waxes and, sadly, wanes.

----------------------------

Date: January 6, 2016

To: Jerry Menikoff, MD, JD
Office for Human Research Protections (OHRP)
Department of Health and Human Services (HHS)
1101 Wootton Parkway, Suite 200
Rockville MD 20852
and
The Department of Health and Human Services (HHS) and other relevant agencies

From: Jeffrey S. Kaye, Ph.D.
xxxxxxxxxxxx
xxxxxxxx, CA xxxxx

Re: Notice of Proposed Rule Making (NPRM), Docket ID HHS-OPHS-2015-0008
(CFR Citation: 45 CFR 46)

HHS has asked for public responses to changes proposed in law regarding Federal Policy for the Protection of Human Subjects, also known historically as the “Common Rule.”

In particular, my comment is related to proposed exceptions to protections under federal law for human subjects on matters related to “intelligence surveillance” and “criminal justice activities.” In addition, I address suggestions of weakening protections related to Subpart C of the Common Rule, which covers research on prisoners.

Currently, the Department of Justice, the Central Intelligence Agency, the Department of Homeland Security, the High-Value Detainee Interrogation Group (HIG), and the intelligence agencies that operate under the umbrella of the Department of Defense, are all regulated by 45 CFR 46, and protection of human subjects falls under the Common Rule. There is good reason historically for this, as government agencies, often under the auspices of “national security,” failed to protect human beings who were harmed significantly under experiments undertaken by such agencies.

These agencies act under a veil of secrecy, and safeguards on potential misuse of actions considered research, as defined, or even potentially close to research, should be strengthened, not weakened.

As Jay Katz said in a 1994 review of the history of human experimentation:

“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….

“As you know, I do not believe that the current federal regulations on the protection of subjects of research go far enough.”¹

Lack of Research Protections in the DoD and CIA

Failures to protect are not instances of the distant past. According to a 2010 investigatory report by Jason Leopold and Jeffrey Kaye²:

“In January 2004, the Director of Defense Research and Engineering (DDR&E) initiated a DoD-wide review of human subjects protection policies. A Navy slide presentation at DoD Training Day (PDF)³ on Nov. 14, 2006, hinted strongly at the serious issues behind the entire review.

“The Navy presentation framed the problem in the light of the history of U.S. governmental ‘non-compliance’ with human subjects research protections, including ‘U.S. Government Mind Control Experiments – LSD, MKULTRA, MKDELTA (1950-1970s)’; a 90-day national ‘stand down’ in 2003 for all human subject research and development activities ‘ordered in response to the death of subjects," as well as use of "unqualified researchers.’

The Training Day presentation said the review found the Navy ‘not in full compliance with Federal policies on human subjects protection.’ Furthermore, DDR&E found the Navy had ‘no single point of accountability for human subject protections.’”

This review was ordered in late January 2004, only a few months after the Supreme court had agreed to hear the case later known as Rasul v Rumsfeld, which would decide that the Guantanamo detainees had a right to challenge their detention. The DoD-wide review came over two years after a DoD directive authored by Paul Wolfowitz had indicated such procedures should be in place. As a result, none of the required assurances by the different Defense Department components regarding their human subjects protection policies had been filed with DDR&E. In effect, there was little or no oversight over DoD research policies at exactly the time when both DoD and CIA were engaged in an experimental torture program, or using detainee prisoners as human guinea pigs for the study of the effects of torture and harsh detention (about which more below).

The DoD directive (3216.02), authored by Paul Wolfowitz, mentioned in the paragraph above, was titled “Protection of Human Subjects and Adherence to Ethical Standards in DoD-Supported Research,” and released in March 2002. The directive was updated in 2011. But in its 2002 version, and for many years, it represented a significant weakening of human subjects protections, making waivers of informed consent the responsibility of lower-level heads of DoD divisions, and weakening protections that had been in place for decades by limiting research safeguards to “prisoners of war.” There had never been such loose rules on informed consent ever explicitly allowed in the history of military research.⁴ While protections against use of research on detainees, such as those held at Guantanamo, supposedly now restrict research or experiments on that population,⁵ the history of attempts by DoD officials to push back against such restrictions should not allow for further weakening of any protections now in place.

There are a number of other instances of lack of protection of research subjects under the Department of Defense. One of the most egregious, which like so many of these abuses, took decades to come to light, concerned the military’s Project Shad.

Project Shad was a DoD experiment that exposed at least 4,000 Navy men to various chemical agents and decontaminant chemicals, "including Bacillus globigii (BG), Coxiella burnetii [which causes Q fever], Pasteurella tularensis [which causes tularemia or 'rabbit fever'], Zinc Cadmium Sulfide, Beta-propriolactone, Sarin, VX, Escherichia Coli (EC), Serratia Marcescens (SM), Sodium Hydroxide, Peracetic acid, Potassium hydroxide, Sodium hypochlorite, ‘tracer amounts’ of radioactivity and asbestos, [and] Methylacetoacetate."⁶ The existence of these experiments was denied by the U.S. government for 35 years, until Congressional hearings were finally held in 2002.⁷ While back in 2002, there were major news reports on the subject, today the story has dropped off the radar. Nevertheless, the government website, Health.mil, still has a webpage dedicated to information on the subject.⁸

The history of abuses surrounding Project Shad, and other similar instances of dangerous military research, e.g. projects Copper Head, Flower Drum, Shady Grove, Autumn Gold, among others undertaken from 1963-1970, argue strongly against any lessening of human subjects protections when it comes to military research.

Finally, on the subject of military research, it is worth noting the warnings aired in a National Research Council (NRC) 2008 report on a conference on “Emerging Cognitive Neuroscience and Related Technologies.”⁹ Participants concluded, “On the whole… the system of protections for human research subjects is not well designed to capture instances of intentional wrongdoing,” providing “rather… guidance for well-motivated investigators who wish to be in compliance with regulatory requirements and practice standards.”

While some find the current “formal procedures in place for the use of military personnel in medical experiments” are “stringent,” that doesn’t imply “that no abuses can occur, nor that convenient alternative frameworks (such as field testing) cannot be used to circumvent the research rules, but only that the official policies and procedures in the military are rigorous.” (bold emphasis added)

But even with such supposedly “rigorous” policies, the report’s authors see a problem. They ominously ask whether “classified research can ever be ethically sound inasmuch as it lacks transparency, such as in the form of public accountability. For example, if a member of an ethics review board disagrees with a majority decision involving a classified human experiment, that member would be unable to engage in a public protest of that decision.”

I think the questions raised in the NRC 2008 report are germane and vital to the issue of NPRM changes on matters related to “intelligence surveillance” and “criminal justice activities.” In particular, the kinds of artifice that can be engaged in relation to what exactly constitutes research is precisely what makes changes in these sensitive areas of high concern.

One such instance where the issue of using field testing or adjustment of technique and program assessment vs. formal research, i.e., to test areas of generalized knowledge, concerns charges of experimentation by the CIA and DoD in regards to the application of interrogation techniques on prisoners captured in the “war on terror,” prisoners which the U.S. government removed from coverage by the “prisoner of war” provisions of the Geneva Conventions.

Research done by the government in relation to interrogation or detainees was usually couched in terms that the research was only program evaluation, as in the case of the Behavioral Science Consultation Teams at Guantanamo, or involved only research related to improvement of conditions for individual detainees, or response to specific applications of an interrogation technique, as when the CIA monitored the oxygenation level of a waterboarding victim.

The point is that in the case of intelligence or national security agencies, especially those aspects covered by secrecy and classification, or that are “covert,” determinations of what is and what is not research, i.e., what can be covered or monitored by the Common Rule, what the “exceptions” are, is actually nonsensical. Either the coverage is complete and total, or it is not.

Charges of CIA Experiments in Torture

In the case of the CIA experimental torture or “enhanced interrogation” program, OHRP referred any research misdeeds back to the agency itself, in this case, back to the CIA. Such is their policy, which is in this case is shown as grossly inadequate.

The fact remains, as documented in the recent release of the Executive Summary of the Senate Select Committee Intelligence report on the CIA’s torture program, that the plans for the “enhanced interrogation” program were formed in the same division of the CIA that ran the MKULTRA program.¹⁰

Do we really want less, not more, safeguards on “intelligence surveillance” activities?

On January 15, 2015, two United Nation Special Rapporteurs wrote an official letter to the U.S. government expressing their concern over “the role of health professionals in the Central Intelligence Agency (CIA) interrogation program, between 2001 and 2009, and the subsequent lack of investigation into these allegations.”¹¹

The letter was prompted by new information released when in December 2014 the Senate Select Committee on Intelligence released a redacted version of its Executive Summary of its report on the CIA “enhanced interrogation” program. One section of the letter contained charges and concerns about the research component aspect of the CIA program.

I reproduce that section of their letter in its entirety, as it helps explain my contention that the secrecy of the intelligence and covert operations world cannot allow any weakening of research or informed consent protections, as the agencies involved are without moral scruple, and have a long and even recent history of covering up misdeeds.

From the Special Rapporteurs’ letter:

3. Engaging in potential human subjects experimentation to provide legal cover for torture

From the SSCI summary it can be inferred that the OMS officers played an active role in determining, along with the DoJ lawyers, what techniques would be considered authorised for the CIA to employ. The 2004 OMS Draft Guidelines stated “in order to best inform future medical judgments and recommendations, it is important that every application of the waterboard be thoroughly documented”. The OMS personnel analysed data previously collected from the detainees during torture to make generalized conclusions about the techniques. In 2004 and 2005, this data and analysis was provided to the DoJ’s Office of Legal Counsel to determine what techniques and applications would be legitimate under their interpretation of U.S. laws.

On at least two occasions, CIA personnel expressed concerns that this process would amount to human experimentation. Similarly, on 11 April 2005, OMS personnel expressed such concern when stating that the “OMS did not review or vet these techniques prior to their introduction, but rather came into this program with the understanding… that they were already determined as legal, permitted and safe. We see this current iteration as a reversal of that sequence”.

However, despite these concerns, the 2005 Office of Legal Counsel memos (known as the Bradbury memos) reveal that the final determinations on the legality and safety of the techniques relied heavily on OMS data and analysis.¹²

There was no known response to this letter.

A Mysterious Use of Research Regarding the Department of Justice and the HIG

The NPRM states that the suspension of the common rule for “intelligence surveillance” includes “interviews, surveillance activities and related analyses... where these activities are conducted by a defense, national security, or homeland security authority solely for authorized intelligence, homeland security, defense, or other national security purposes.”¹³

The proposed Criminal Justice exclusion from the Common Rule involves “data collection and analysis that enables the uniform delivery of criminal justice. The scope of this exclusion is collection and analysis of data, biospecimens, or records by or for a criminal justice agency for activities authorized by law or court order solely for criminal justice or criminal investigative purposes. The activities excluded are necessary for the operation and implementation of the criminal justice system.”¹⁴

How does this look in light of the reality of research undertaken within the arcane workings of the criminal justice system? One example occurred during the interrogation of accused would-be assassin Manssor Arbabsiar. Under interrogation after arrest in 2012, a “research psychologist,” Susan Brandon, unknown to Arbabsiar was making observations and notes on defendant Arbabsiar. The research appears to have been for the FBI-led High-Value Detainee Interrogation Group, or HIG, for whom Dr. Brandon worked as “Chief of Research.”

According to another psychologist contracted to the government, Gregory H. Saathoff, Brandon was present during all of Arbabsiar’s post-arrest questioning, viewing him via closed-circuit camera, where she “closely monitored and documented Mr. Arbabsiar’s behaviors.”¹⁵

She produced a 21-page document, which has been withheld from public view, the subject of a court protective order.¹⁶ Brandon’s document, and hence her research, became part of the prosecution’s case against Arbabsiar, and was apparently part of the process of reaching a plea bargain with him and his attorneys. How did a secretive research protocol become part of a prosecutor’s evidence against a defendant?

As I wrote at the time: “So what was the administration’s top interrogation researcher doing at Arbabsiar’s interrogation? And if she was doing research, was Arbabsiar so informed? And whether he was or not, what in her role as researcher later led Brandon to file a report with the court? These are all important questions....” (see endnote vi)

In the context of the new proposed changes in the Common Rule, the questions involved are vital to the workings of both science and of a democratic society.

Research on Prisoners

Related to the Criminal Justice and Intelligence Agency exclusions are calls for weakening the protections regarding use of prisoners in research, which currently fall under Subpart C of the Common Rule. The very way this is brought up in the call for discussion is insulting: “The subpart was written in the wake of harsh criticism regarding research abuses involving prisoners that occurred or became public in the 1960s and 1970s.”

This was not simply “harsh criticism,” but well documented instances of horrific abuse of prisoners. The classic work in this field was Allen Hornblum’s book, Acres of Skin: Human Experiments at Holmesburg Prison, published by Routledge in 1998. There is no reason to lighten the restrictions against such research, which was the result of decades of abuses. Whatever positive results regarding such lightening of restrictions on consent in this case are outweighed by the dangers of unchecked power over a vulnerable population, the examples of which ruined untold number of lives.

As Mr. Hornblum concluded at the end of his book:

"It couldn't happen in America" we reassured ourselves about medical practices in Nazi Germany. But intolerable medical practices were practiced on vulnerable populations in America, without the support of the political culture or the despotic leadership that captivated Germany under the Third Reich, without any protest from the AMA, which prides itself on its ability to regulate itself.

History suggests that we are as susceptible to abusing our socially and economically disenfranchised citizens as any other nation. If, as many believe, a democracy is only as strong as the respect accorded its weakest members, we must work to assure that neither these abuses nor the "conspiracy of silence" that makes them possible ever happen again. We must do this not only for the benefit of the powerless, but also for the benefit of society as a whole.¹⁷

In conclusion, I ask that the NPRM changes proposed for weakening of protections on issues related to “intelligence surveillance” and “criminal justice activities,” as well as weakening protections related to Subpart C of the Common Rule relating to research protections for prisoners, be soundly rejected.

Sincerely,

Jeffrey S. Kaye, Ph.D.

Endnotes:

¹Advisory Committee on Human Radiation Experiments, Public Meeting, Tuesday, July 5, 1994, Presentation by Jay Katz. URL: http://nsarchive.gwu.edu/radiation/dir/mstreet/commeet/meet4/trnsct04.txt

²Jason Leopold and Jeffrey Kaye, “Wolfowitz Directive Gave Legal Cover to Detainee Experimentation Program,” Truthout, Oct. 14, 2010. URL: http://www.truth-out.org/news/item/257:wolfowitz-directive-gave-legal-cover-to-detainee-experimentation-program

³“DON Human Research Protection Program: What’s New -14 November 2006.” URL: http://www.dtic.mil/biosys/docs/hu-navy_cs-2006.pdf

⁴See Jason Leopold and Jeffrey Kaye at i. above.

⁵See “New DoD Directive on Detainees Allows Sleep and Sensory Deprivation, Biometric IDs,” Invictus, September 17, 2014. URL: http://valtinsblog.blogspot.com/2014/09/new-dod-directive-on-detainees-allows.html?m=1

⁶“American Servicemen Used As Guinea Pigs - Tests Revealed DOD Releases Project SHAD Fact Sheets”, (no date, but first webpage circa 2002). URL: http://web.archive.org/web/20070221064138/http://www.testsubjects.net/shad.htm

⁷Hearing Before the Subcommittee on Health of the Committee on Veterans’ Affairs, House of Representatives, One Hundred Seventh Congress, Second Session, October 9, 2002, “Military Operations Aspects of SHAD and Project 112.” URL: http://web.archive.org/web/20090805150741/http://fhp.osd.mil/CBexposures/pdfs/oct9h02.pdf

⁸See “Project 112/SHAD,” (no date), URL: http://www.health.mil/Military-Health-Topics/Health-Readiness/Environmental-Exposures/Project-112-SHAD

⁹See Jeffrey Kaye, NRC on Research on “War on Terror” Detainees: “A Contemporary Problem,” February 12, 2011. URL: https://shadowproof.com/2011/02/12/nrc-on-research-on-war-on-terror-detainees-a-contemporary-problem/

Also National Research Council (NRC) 2008 , “Emerging Cognitive Neuroscience and Related Technologies”. URL: http://www.nap.edu/read/12177/chapter/6#118

¹⁰Jeffrey Kaye, “SSCI Report Reveals CIA Torture Program Originated in Same Department as MKULTRA,” The Dissenter (later changed name to Shadowproof), December 11, 2014,. URL: https://shadowproof.com/2014/12/11/ssci-report-reveals-cia-torture-program-originated-in-same-department-as-mkultra

¹¹Dainius Puras and Juan E. Méndez, Letter to the U.S. Government, January 15, 2015, “Mandates of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health and the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment.”
URL: https://spdb.ohchr.org/hrdb/29th/public_-_OL_USA_15.01.15_%281.2015%29.pdf

¹²Ibid., pp. 3-4.

¹³Federal Register, Vol. 80, No. 173, Tuesday, September 8, 2015, Proposed Rules., p. 20. URL: https://www.gpo.gov/fdsys/pkg/FR-2015-09-08/pdf/2015-21756.pdf

¹⁴Federal Register, Vol. 80, No. 173, Tuesday, September 8, 2015, Proposed Rules., p. 18. URL: https://www.gpo.gov/fdsys/pkg/FR-2015-09-08/pdf/2015-21756.pdf

¹⁵Jeffrey Kaye, “Government’s Psychological Evaluation of Manssor Arbabsiar Fails to Impress,” The Public Record, October 10, 2012. URL: http://pubrecord.org/law/10586/governments-psychological-evaluation/

¹⁶U.S. District Court, Southern District of New York, Protective Order, 11 Cr. 897 (JFK), USA vs. Manssor Arbabsiar, August 15, 2012. URL: https://www.documentcloud.org/documents/459526-8-15-12-protective-order-manssor-case.html

¹⁷Hornblum, Allen M. (2013-05-13). Acres of Skin: Human Experiments at Holmesburg Prison (Kindle Locations 4625-4631). Taylor and Francis. Kindle Edition.

NRC on Research on “War on Terror” Detainees: “A Contemporary Problem”?

Cross-posted from MyFDL/Firedoglake

A National Research Council (NRC) 2008 report on a conference on Emerging Cognitive Neuroscience and Related Technologies examined briefly what it characterized as a “contemporary problem,” the possibility of doing research on “war on terror” detainees, removed by the U.S. government from Geneva protections against experiments done on prisoners of war.

In a section of the report that looked at the “Cultural and Ethical Underpinnings of Social Neuroscience,” the report’s authors examined the “Ethical Implications” of these new technologies. The section explored the birth of the new field of bioethics, in response to the scandalous revelations of the Tuskegee experiments. The report noted that “On the whole, however, the system of protections for human research subjects is not well designed to capture instances of intentional wrongdoing,” providing “rather… guidance for well-motivated investigators who wish to be in compliance with regulatory requirements and practice standards.”

The report further described the history surrounding the importance of the rules that constitute the need for informed consent of research participants, and how the Nazi-era experiments led to the Nuremberg principle that “The voluntary consent of the human subject is absolutely essential.” While claiming the current “formal procedures in place for the use of military personnel in medical experiments” are “stringent,” that doesn’t imply “that no abuses can occur, nor that convenient alternative frameworks (such as field testing) cannot be used to circumvent the research rules, but only that the official policies and procedures in the military are rigorous.”

But even with such supposedly “rigorous” policies, the report’s authors see a problem. They ominously ask whether “classified research can ever be ethically sound inasmuch as it lacks transparency, such as in the form of public accountability. For example, if a member of an ethics review board disagrees with a majority decision involving a classified human experiment, that member would be unable to engage in a public protest of that decision.”

At this point in the discussion, another interesting, and even more ominous question rises up before the NSC panel (emphasis added):

A contemporary problem is the status of detainees at military installations who are suspects in the war on terrorism. Presumably, the ethical standards that apply to all human research subjects should apply to them as well. But if they are not protected by the provisions of the Geneva protocols for prisoners of war, the question would be whether as potential research subjects they are nonetheless protected by other international conventions, such as the Universal Declaration of Human Rights (United Nations, 1948). Those technical questions of international law are beyond the scope of this report.

Why should the question of research on detainees arise in this discussion at all?

Evidence of Military Research and Experimentation on Detainees

Jason Leopold and I have been investigating the possibility of research being conducted upon detainees at Guantanamo and other “war on terror” prisoners held by the Defense Department and the CIA. Back in September 2009, I published articles at Firedoglake, The Public Record, and Truthout that noted the research on “uncontrollable stress” conducted upon SERE survival school students subjected to mock torture predated the institution of the so-called “enhanced interrogation program of the CIA. The research was conducted by, among others, a CIA-linked psychiatrist, Dr. Charles A. Morgan III, who is affiliated with Yale University and the National Center for Post-traumatic Stress Disorder.

Morgan has denied his CIA affiliation, but for documentary evidence, see this list of participants at this 2004 DoJ/FBI conference.

This research used methods that were similar to those later instituted under a plan developed by James Mitchell and Bruce Jessen, formerly employed by the military’s Joint Personnel Recovery Agency (JPRA), parent organization to the SERE program, to use coercive forms of interrogation on the new “war on terror” detainees, who the White House and their attorneys at the Office of Legal Counsel removed from the protection of Geneva Convention protocols. In a report on CIA experiments on torture, Physicians for Human Rights (PHR) noted in an appendix the existence of the Morgan research, but failed to make public the CIA connections, even though they certainly were aware of them.

Originally, the PHR report was going to include a footnote on the existence of a new protocol on human experimentation protections in the military signed by Paul Wolfowitz in early 2002. While they chose not to follow up on this, Leopold and I conducted a seven-month long investigation into the March 2002 issuance of Department of Defense Directive 3216.02, ”Protection of Human Subjects and Adherence to Ethical Standards in DoD-Supported Research.” We noted that “the Wolfowitz directive weakened protections that had been in place for decades by limiting the safeguards to ‘prisoners of war’.” Even more, it allowed for waivers of informed consent if the head of a DoD department thought it necessary. There had never been such loose rules on informed consent ever explicitly allowed in the history of military research, although no prominent ethicist had discussed this until we published our article. Prominent ethicist Alexander Capron was quoted in our story for calling these changes “controversial both because it involves a waiver of the normal requirements and because the grounds for that waiver are so open-ended.”

While retaining the blanket prohibition against experimenting on prisoners of war, Wolfowitz softened the language for other types of prisoners, using a version of rules about “vulnerable” classes of individuals taken from regulations meant for civilian research by the Department of Health and Human Services (DHHS).

By removing the detainees from Geneva protections, and taking away “prisoner of war” protections, Bush and the White House lawyers, among them Jay Bybee, John Yoo and Alberto Gonzales, opened up the captured prisoners, many of them sold to the Americans for bounty reward, to possible experimentation.

DoD and HHS Acting Together on Experiments?

Buried in the Wolfowitz directive was a provision (4.4.1) that “actions authorizing or requiring any action by an official of the Department of Health and Human Services (HHS) with respect to any requirements” of research on “vulnerable populations” like prisoners “shall be under the authority of the Director, Defense Research and Engineering.” The reason for HHS involvement was because research “supported or conducted by the Department of Defense that affects vulnerable classes of subjects” had to meet the protections of HHS’s Common Rule language that covers protection of human subjects.

When queried whether there had ever been any DoD research on any kind of prisoner, or the use of HHS personnel to monitor such research, a spokesperson for Defense Research and Engineering indicated that they had no comment.

In 2002, there was another assault on prisoner protections for research, when Bush’s Secretary of HHS asked for and received a year later a blanket waiver for all informed consent on prisoner experimentation for “epidemiological” reasons, including the taking of biological samples. In a future article, I will explore the repercussions of this new policy — also never discussed by any ethical panel, and certainly not by the NRC — on research upon prisoners, and more specifically the possibility of experiments done on the detainees at Guantanamo.

This further investigation may throw light upon the Guantanamo SOP wherein all detainees were subjected to a never-before-attempted use of mass administration of treatment doses of the controversial anti-malaria drug mefloquine (Lariam), as also reported in a special investigation by Jason Leopold and myself last December. The scandal was also the subject of an independent investigatory report published at the same time by Seton Hall University Law School’s Center for Policy and Research.

In a 2002 report on mefloquine adverse events, “Unexpected frequency, duration and spectrum of adverse events after therapeutic dose of mefloquine in healthy adults,” published in top medical journal Acta Tropica, it was noted that 73% of the participants suffered “severe (grade 3) vertigo…” which “required bed rest and specific medication for 1 to 4 days.” Nevertheless, DoD maintains that the use of mefloquine was for public health purposes, to prevent malaria from spreading in Cuba. But as our investigation showed, talking with military medical experts, and examining other military responses to malaria threat, including in Cuba, no such use of such mass treatment doses, with its attendant dangers, was ever used or even proposed. Nor did DoD medical officers at Guantanamo demand the same protocols be used on foreign workers from malarial areas brought into the camp at this same time to work on building Camp Delta and other facilities at the naval base. The workers were employed by Kellogg Brown and Root, a subsidiary of Halliburton.

Was the mefloquine use part of an experimental protocol on the adverse side effects of the drug, a subject of much controversy within DoD at the time? Was it a method of softening up prisoners for interrogation? While calls for greater transparency go unheeded, further investigation by the press may bring answers to these explosive questions.

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2006 Navy Report: Lack of Oversight Allows DOD Human Experimentation Abuses

A new article at Truthout describes how Paul Wolfowitz issued a military directive in March 2002 that loosened rules against human experimentation and protections for subjects of such research that had been in place since the early 1970s. According to sources within the Department of Defense, the Wolfowitz Directive, "Protection of Human Subjects and Adherence to Ethical Standards in DoD-Supported Research" (PDF), was used to support a top-secret Special Access Program at Guantanamo funded through the Defense Department’s black budget involving “deception detection”, interrogation, and other research upon detainees.

Jason Leopold and I researched this article for seven months, including "interviews with more than 15 current and former Pentagon and intelligence officials, ethical scholars and Army officers stationed at the Guantanamo Bay prison facility," and to summarize it here would be difficult. As is the case with such a long investigation, there's much of value that didn't make it into the final story, but is worth pursuing in order to fill in the outlines laid down in the original article. One such addition involves a closer look at the 2004 review of DoD-wide research programs with an eye to compliance with Federal regulations and DoD directives.

According to the Truthout report:

In January 2004, the Director of Defense Research and Engineering (DDR&E) initiated a DoD-wide review of human subjects protection policies. A Navy slide presentation at DoD Training Day (PDF) on Nov. 14, 2006, hinted strongly at the serious issues behind the entire review.

The Navy presentation framed the problem in the light of the history of U.S. governmental "non-compliance" with human subjects research protections, including "U.S. Government Mind Control Experiments – LSD, MKULTRA, MKDELTA (1950-1970s)"; a 90-day national “stand down” in 2003 for all human subject research and development activities "ordered in response to the death of subjects," as well as use of "unqualified researchers."

The Training Day presentation said the review found the Navy "not in full compliance with Federal policies on human subjects protection." Furthermore, DDR&E found the Navy had "no single point of accountability for human subject protections."

The review was ordered in late January 2004, only a few months after the Supreme court had agreed to hear the case later known as Rasul v Rumsfeld, which would decide that the Guantanamo detainees did have the right to challenge their detention. When finally begun, the DoD-wide review would come over two years after the Wolfowitz directive had indicated such procedures should be in place. As a result, none of the required assurances by the different Defense Department components regarding their human subjects protection policies had been filed with DDR&E. In effect, there was little or no oversight over DoD research policies at exactly the time when both DoD and CIA were engaged in an experimental torture program, or using detainee prisoners as human guinea pigs for the study of the effects of torture and harsh detention.

Whatever the specific reasons that prompted the review, the situation had apparently been serious enough that the Defense Research and Engineering agency within DoD threatened to stop all Defense Department research by the end of 2004 if the requisite assurances of adherence to ethical guidelines were not submitted to it by the end of that year. As it was, most of the DoD components asked for extensions of time, which were granted, and ethical assurances were not filed until 2005, or 2006 in some instances.

When asked about the over two-year delay in implementing the oversights demanded by the Wolfowitz directive, the Department of Defense refused comment.

Retired Maj. General Ronald Sega was the director of Defense Research and Engineering from August 2001 through August 2005, the key compliance officer during the early years of the Wolfowitz Directive. During his stint as director, Sega also served as the Reserve Assistant to the Chairman, Joint Chiefs of Staff, which appears to have been a possible conflict of interest, as the Joint Chiefs were implicated in the approval of the new interrogation program. In addition, the SERE program is operationally under JCS control. During these same years, personnel from the SERE program -- most famously James Mitchell and Bruce Jessen, but not limited to them -- were involved in the reverse-engineering of SERE methods of resisting interrogation for use by the CIA and DoD in torturing detainees in Guantanamo, Iraq, Afghanistan, and secret "black site" prisons around the world.

Sega, now a professor at Colorado State University, did not return a request made through his office for comment.

2006 Navy Training Day Describes Part of the Problem

The 2006 Navy Training Day presentation went into a great deal of detail regarding Department of the Navy (DoN) "Adverse Events and Incidents of Non-Compliance." Besides those noted in the Truthout article, the DoN noted a a 90-day national “stand down” in 2003 at the Department of Veterans Affairs "for all human subject research and development activities to focus attention on a proactive review to ensure the protection of human subjects and the ethical conduct of research. The 'stand down' was ordered in response to the death of subjects; invasive research conducted without IRB review and approval; unqualified researchers conducting research; and failure of the IRB to meet minimal standards."

The presentation described some of the approximately 30 year history of human radiation experiments by DoD, the Department of Energy (formerly the Atomic Energy Commission), and other government agencies, in conjunction with several universities and hospitals from the 1940s-1970s. The scandal erupted in the 1990s, and President Clinton appointed a commission to investigate and make recommendations. Their full report can be viewed online.) According to DoN, the government investigation found "that government agencies, including the military services, kept critical information secret from subjects; failed to obtain informed consent; and presented interventions considered controversial at the time as if they were 'standard practices,' some of which caused injury to subjects."

The DoN Training Day Presentation was not done. They also referenced the history of Projects SHAD, Copper Head, Flower Drum, Shady Grove, Autumn Gold, among others undertaken from 1963-1970. According to the Navy: "More than 5,800 Naval personnel aboard Navy ships exposed to nerve agents and biological simulant aerosol spray released by aircraft to test protective clothing, gas masks, and ship vulnerability to penetration." But, as in some other portions of the Training Day presentation, DoN downplayed or lied about the seriousness of the experimental abuses. While some of the tests used simulant aerosol sprays, the Shady Grove experiment in particular, by the government's own admission elsewhere (PDF), "actual agents were used in addition to simulants."

As I wrote about Project Shad in an article recently that otherwise described the recent revelations of U.S. Public Health Service experiments deliberately inoculating Guatemalan prisoners and asylum inmates in the 1940s with syphilis:

Project Shad was a DoD experiment that exposed at least 4,000 Navy men to various chemical agents and decontaminant chemicals, "including Bacillus globigii (BG), Coxiella burnetii [which causes Q fever], Pasteurella tularensis [which causes tularemia or 'rabbit fever'], Zinc Cadmium Sulfide, Beta-propriolactone, Sarin, VX, Escherichia Coli (EC), Serratia Marcescens (SM), Sodium Hydroxide, Peracetic acid, Potassium hydroxide, Sodium hypochlorite, ‘tracer amounts’ of radioactivity and asbestos, [and] Methylacetoacetate." So outrageous were these experiments, denied by the government for 35 years, that there were Congressional hearings (PDF) in 2002, and major news reports by CBS Evening News. Today, the story has dropped off the radar, though thanks to some Congressional pressure, and the activism of some of the Shad victims, veterans and the government can get more information on Shad and its land-based twin experiment, Project 112, at this Health.mil webpage.

The research violations were not limited to what might seem to some as ancient history. The DoN report describes a 2003 research project at the National Naval Medical Center in Bethesda, Maryland. The researchers at the Orthopedic Surgery Department injected 48 subjects with contrast dye, even though they had not submitted the experiment to any review, nor was it approved by any Command Institutional Review Board (IRB). According to DoN, the study was "not properly supervised by a physician; poorly designed... [with] inadequate informed consent procedures. They do not mention what harm, if any, was done.

The deeper one looks into these matters, the darker and more disturbing the revelations. The number of different regulations that supposedly are there to protect individuals from dangerous experimentation, or vulnerable potential subjects, such as prisoners, are poorly enforced, or subject to bureaucratic and economic stressors that cripple effective oversight. The rules are themselves a tangle of legalese and a veritable maze of confusing regulations. Even the experts are at odds over what they say and how they should work. And then there are the ongoing admissions, as in this 2006 Navy directive (3900.39D - PDF) implementing still current regulations concerning research on "Severe or unusual intrusions, either physical or psychological, on human subjects (such as consciousness-altering drugs or mind-control techniques)." (On a side note, when the DoN Training Day presentation described the new Navy directive 3900.39D, they explained how the Undersecretary of the Navy would be responsible for the research surrounding "severe or unusual intrusions," but left the part about drugs and mind-control out of their description.)

The Truthout article describes how Bush, Cheney, Rumsfeld, Wolfowitz and others, from DoD and its entities, such as Joint Personnel Recovery Agency and its SERE division, to DIA, JSOC, and the CIA, walked through this confusing mass of regulations, rewrote them, massaged the fine print, and used these supposed protections as a legal cover for the institution of torture and the propagation of unethical and illegal human experimentation.

The story is only half written. There is much still to be learned, and without effective, public, and wide-ranging investigations, this will all be left to happen again, if it is not still happening. None of the changes in human subject protections implemented by the Bush administration have been undone. As pointed out by Physicians for Human Rights in their recent "white paper" on CIA experiments in torture, changes to the War Crimes Act as part of the Military Commissions Act gutted the WCA of the protections connected to the Geneva Conventions, including protections on biological experimentation.

The readers of this article, and others like it, will write the next half of the story. Without strong public pressure upon the government, and agitation in the press, real, effective oversight and change will not take place.

Originally posted at FDL/The Seminal as 2002 DoD Directive Changed Rules to Allow Experiments on Detainees

Wolfowitz Directive Gave Legal Cover to Detainee Experimentation Program

by Jason Leopold and Jeffrey Kaye, originally posted at Truthout, 10/14/2010

In 2002, as the Bush administration was turning to torture and other brutal techniques for interrogating "war on terror" detainees, Deputy Defense Secretary Paul Wolfowitz loosened rules against human experimentation, an apparent recognition of legal problems regarding the novel strategies for extracting and evaluating information from the prisoners.

Wolfowitz issued his directive on March 25, 2002, about a month after President George W. Bush stripped the detainees of traditional prisoner-of-war protections under the Geneva Conventions. Bush labeled them "unlawful enemy combatants" and authorized the CIA and the Department of Defense (DoD) to undertake brutal interrogations.

Despite its title - "Protection of Human Subjects and Adherence to Ethical Standards in DoD-Supported Research" - the Wolfowitz directive weakened protections that had been in place for decades by limiting the safeguards to "prisoners of war."

"We're dealing with a special breed of person here," Wolfowitz said about the war on terror detainees only four days before signing the new directive.

One former Pentagon official, who worked closely with the agency's ex-general counsel William Haynes, said the Wolfowitz directive provided legal cover for a top-secret Special Access Program at the Guantanamo Bay prison, which experimented on ways to glean information from unwilling subjects and to achieve "deception detection."

"A dozen [high-value detainees] were subjected to interrogation methods in order to evaluate their reaction to those methods and the subsequent levels of stress that would result," said the official.

A July 16, 2004 Army Criminal Investigation Division (CID) report obtained by Truthout shows that between April and July 2003, a "physiological warfare specialist" atached to the military's Survival, Evasion, Resistance and Escape (SERE) program was present at Guantanamo. The CID report says the instructor was assigned to a top-secret Special Access Program.

It has been known since 2009, when President Barack Obama declassified some of the Bush administration's legal memoranda regarding the interrogation program, that there were experimental elements to the brutal treatment of detainees, including the sequencing and duration of the torture and other harsh tactics.

However, the Wolfowitz directive also suggests that the Bush administration was concerned about whether its actions might violate Geneva Conventions rules that were put in place after World War II when grisly Nazi human experimentation was discovered. Those legal restrictions were expanded in the 1970s after revelations about the CIA testing drugs on unsuspecting human subjects and conducting other mind-control experiments.

For its part, the DoD insists that it "has never condoned nor authorized the use of human research testing on any detainee in our custody," according to spokeswoman Wendy Snyder.

However, from the start of the war on terror, the Bush administration employed nontraditional methods for designing interrogation protocols, including the reverse engineering of training given to American troops trapped behind enemy lines, called the SERE techniques. For instance, the near-drowning technique of waterboarding was lifted from SERE manuals.

Shielding Rumsfeld

Retired US Air Force Capt. Michael Shawn Kearns, a former SERE intelligence officer, said the Wolfowitz directive appears to be a clear attempt to shield then-Defense Secretary Donald Rumsfeld from the legal consequences of "any dubious research practices associated with the interrogation program."

Scott Horton, a human rights attorney and constitutional expert, noted Wolfowitz's specific reference to "prisoners of war" as protected under the directive, as opposed to referring more generally to detainees or people under the government's control.

"At the time that Wolfowitz was issuing this directive, the Bush administration was taking the adamant position that prisoners taken in the' war on terror' were not 'prisoners of war' under the Geneva Conventions and were not entitled to any of the protections of the Geneva Conventions.

"Indeed, it called those protections 'privileges' that were available only to 'lawful combatants.' So the statement [in the directive] that 'prisoners of war' cannot be subjects of human experimentation ... raises some concerns - why was the more restrictive term 'prisoners of war' used instead of 'prisoners' for instance."

The Wolfowitz directive also changed other rules regarding waivers of informed consent. After the scandals over the CIA's MKULTRA program and the Tuskegee experiments on African-Americans suffering from syphilis, Congress passed legislation known as the Common Rule to provide protections to human research subjects.

The Common Rule "requires a review of proposed research by an Institutional Review Board (IRB), the informed consent of research subjects, and institutional assurances of compliance with the regulations."

Individuals who lack the capacity to provide "informed consent" must have an IRB determine if they would benefit from the proposed research. In certain cases, that decision could also be made by the subject's "legal representative."

However, according to the Wolfowitz directive, waivers of informed consent could be granted by the heads of DoD divisions.

Professor Alexander M. Capron, who oversees human rights and health law at the World Health Organization, said the delegation of the power to waive informed consent procedures to Pentagon officials is "controversial both because it involves a waiver of the normal requirements and because the grounds for that waiver are so open-ended."

The Wolfowitz directive also changes language that had required DoD researchers to strictly adhere to the Nuremberg Directives for Human Experimentation and other precedents when conducting human subject research.

The Nuremberg Code, which was a response to the Nazi atrocities, made "the voluntary consent of the human subject ... absolutely essential." However, the Wolfowitz directive softened a requirement of strict compliance to this code, instructing researchers simply to be "familiar" with its contents.

"Why are DoD-funded investigators just required to be 'familiar' with the Nuremberg Code rather than required to comply with them?" asked Stephen Soldz, director of the Center for Research, Evaluation and Program Development at Boston Graduate School of Psychoanalysis.

Soldz also wondered why "enforcement was moved from the Army Surgeon General or someone else in the medical chain of command to the Director of Defense Research and Engineering" and why "this directive changed at this time, as the 'war on terror' was getting going."

Soldz is co-author of a report published in June by the international doctors' organization, Physicians for Human Rights (PHR), which found that high-value detainees who were subjected to brutal torture techniques by the CIA were used as "guinea pigs" to gauge the effectiveness of the various "enhanced interrogation" methods. PHR told Truthout it first examined the Wolfowitz directive and changes Congress made to 10 USC 980, the law that governs how the Defense Department spends federal funds on human experimentation, in 2008 while preparing its report, but did not cite either because the group could not explain its significance.

Treating Soldiers

The original impetus for the changes seems to have related more to the use of experimental therapies on US soldiers facing potential biological and other dangers in war zones.

The House Armed Services Committee proposed amending the law on human experimentation prior to the 9/11 attacks. But the Bush administration pressed for the changes after 9/11 as the United States was preparing to invade Afghanistan and new medical products might be needed for soldiers on the battlefield without their consent, said two former officials from the Defense Intelligence Agency.

Yet, there were concerns about the changes even among Bush administration officials. In a September 24, 2001, memo to lawmakers, Bush's Office of Management and Budget (OMB) said the "administration is concerned with the provision allowing research to be conducted on human subjects without their informed consent in order to advance the development of a medical product necessary to the armed forces."

The OMB memo said the Bush administration understood that the DoD had a "legitimate need" for "waiver authority for emergency research," but "the provision as drafted may jeopardize existing protections for human subjects in research, and must be significantly narrowed."

However, the broader language moved forward, as did planning for the new war on terror interrogation procedures.

In December 2001, Pentagon general counsel Haynes and other agency officials contacted the Joint Personnel Recovery Agency (JPRA), which runs SERE schools for teaching US soldiers to resist interrogation and torture if captured by an outlaw regime. The officials wanted a list of interrogation techniques that could be used for detainee "exploitation," according to a report released last year by the Senate Armed Services Committee.

These techniques, as they were later implemented by the CIA and the Pentagon, were widely discussed as "experimental" in nature.

Bryan Thomas, a spokesman for the Senate Armed Services Committee, declined to comment on the Wolfowitz directive.

Back in Congress, the concerns from the OMB about loose terminology were brushed aside and the law governing how the DoD spends federal funds on human expirementation and research, was amended to give the DoD greater leeway regarding experimentation on human subjects.

A paragraph to that law, 10 USC 980, which had not been changed since it was first enacted in 1972, was added authorizing the defense secretary to waive "informed consent" for human subject research and experimentation. It was included in the 2002 Defense Authorization Act passed by Congress in December 2001.

The changes to the "informed consent" section of the law were in direct contradiction to presidential and DoD memoranda issued in the 1990s that prohibited such waivers related to classified research. A memo signed in 1999 by Secretary of Defense William Cohen called for the prohibitions on "informed consent" waivers to be added to the Common Rule regulations covering DoD research, but it was never implemented.

Congressional Assistance

As planning for the highly classified Special Access Program began to take shape, most officials in Congress appear to have averted their eyes, with some even lending a hand.

The ex-DIA officials said the Pentagon briefed top lawmakers on the Senate Defense Appropriations Committee in November and December 2001, including the panel's chairman Sen. Daniel Inouye (D-Hawaii) and his chief of staff Patrick DeLeon, about experimentation and research involving detainee interrogations that centered on "deception detection."

To get a Special Access Program like this off the ground, the Pentagon needed DeLeon's help, given his long-standing ties to the American Psychological Association (APA), where he served as president in 2000, the sources said.

According to former APA official Bryant Welch, DeLeon's role proved crucial.

"For significant periods of time DeLeon has literally directed APA staff on federal policy matters and has dominated the APA governance on political matters," Welch wrote. "For over twenty-five years, relationships between the APA and the Department of Defense (DOD) have been strongly encouraged and closely coordinated by DeLeon.

"When the military needed a mental health professional to help implement its interrogation procedures, and the other professions subsequently refused to comply, the military had a friend in Senator Inouye's office, one that could reap the political dividends of seeds sown by DeLeon over many years."

John Bray, a spokesman for Inuoye, said in late August he would look into questions posed by Truthout about the Wolfowitz directive and the meetings involving DeLeon and Inuoye. But Bray never responded nor did he return follow-up phone calls and emails. DeLeon did not return messages left with his assistant.

Legal Word Games 

Meanwhile, in January 2002, President Bush was receiving memos from then-Justice Department attorneys Jay Bybee and John Yoo as well as from Defense Secretary Rumsfeld and Bush's White House counsel Alberto Gonzales, advising Bush to deny members of al-Qaeda and the Taliban prisoner-of-war status under the Geneva Conventions.

Also, about a month before the Wolfowitz directive was issued, the Defense Intelligence Agency (DIA) asked Joint Forces Command if they could get a "crash course" on interrogation for the next interrogation team headed out to Guantanamo, according to the Armed Services Committee's report. That request was sent to Brig. Gen. Thomas Moore and was approved.

Bruce Jessen, the chief psychologist of the SERE program, and Joseph Witsch, a JPRA instructor, led the instructional seminar held in early March 2002.

The seminar included a discussion of al-Qaeda's presumed methods of resisting interrogation and recommended specific methods interrogators should use to defeat al-Qaeda's resistance. According to the Armed Services Committee report, the presentation provided instructions on how interrogations should be conducted and on how to manage the "long term exploitation" of detainees.

There was a slide show, focusing on four primary methods of treatment: "isolation and degradation," "sensory deprivation," "physiological pressures" and "psychological pressures."

According to Jessen and Witsch's instructor's guide, isolation was the "main building block of the exploitation process," giving the captor "total control" over the prisoner's "inputs." Examples were provided on how to implement "degradation," by taking away a prisoner's personal dignity. Methods of sensory deprivation were also discussed as part of the training.

Jessen and Witsch denied that "physical pressures," which later found their way into the CIA's "enhanced interrogation" program, were taught at the March meeting.

However, Jessen, along with Christopher Wirts, chief of JPRA's Operational Support Office, wrote a memo for Southern Command's Directorate of Operations (J3), entitled "Prisoner Handling Recommendations," which urged Guantanamo authorities to take punishment beyond "base line rules."

So, by late March 2002, the pieces were in place for a strategy of behavior modification designed to break down the will of the detainees and extract information from them. Still, to make the procedures "legal," some reinterpretations of existing laws and regulation were needed.

For instance, attorneys Bybee and Yoo would narrow the definition of "torture" to circumvent laws prohibiting the brutal interrogation of detainees.

"Vulnerable" Individuals

In his directive, Wolfowitz also made subtle, but significant, word changes. While retaining the blanket prohibition against experimenting on prisoners of war, Wolfowitz softened the language for other types of prisoners, using a version of rules about "vulnerable" classes of individuals taken from regulations meant for civilian research by the Department of Health and Human Services (DHHS).

This research and experimentation examined physiological markers of stress, such as cortisol, and involved psychologists under contract to the CIA and the military who were experts in the field, the ex-DIA officials said.

One study, called "The War Fighter's Stress Response," was conducted between 2002 and 2003 and examined physiological measurements of mock torture subjects drawn from the SERE program and other high-stress military personnel, such as Special Forces Combat Divers.

Researchers measured cortisol and other hormone levels via salivary swabbing and blood samples, a process that also was reportedly done to war on terror detainees.

Three weeks after the Wolfowitz directive was signed, SERE psychologist Jessen produced a Draft Exploitation Plan for use at Guantanamo. According to the Armed Services Committee's report, JPRA was offering its services for "oversight, training, analysis, research, and [tactics, techniques, and procedures] development" to Joint Forces Command Deputy Commander Lt. Gen. Robert Wagner. (Emphasis added.)

There were other indications that research was an important component of JPRA services to the DoD and CIA interrogation programs. When three JPRA personnel were sent to a Special Mission Unit associated with Joint Special Operations Command (JSOC) in August 2003 for what was believed to be special training in interrogation, one of the three was JPRA's manager for research and development.

Three former top military officials interviewed by the Armed Services Committee have described Guantanamo as a "battle lab."

According to Col. Britt Mallow, the commander of the Criminal Investigative Task Force (CITF), he was uncomfortable when Guantanamo officials Maj. Gen. Mike Dunleavy and Maj. Gen. Geoffrey Miller used the term "battle lab," meaning "that interrogations and other procedures there were to some degree experimental, and their lessons would benefit DoD in other places."

CITF's deputy commander told the Senate investigators, "there were many risks associated with this concept ... and the perception that detainees were used for some 'experimentation' of new unproven techniques had negative connotations."

In May 2005, a former military officer who attended a SERE training facility sent an email to Middle East scholar Juan Cole stating that "Gitmo must be being used as a 'laboratory' for all these psychological techniques by the [counter-intelligence] guys."

The Al-Qahtani Experiment

One of the high-value detainees imprisoned at Guantanamo who appears to have been a victim of human experimentation was Mohammed al-Qahtani, who was captured in January 2002.

A sworn statement filed by Lt. Gen. Randall M. Schmidt, al-Qahtani's attorney, said Secretary Rumsfeld was "personally involved" in the interrogation of al-Qahtani and spoke "weekly" with Major General Miller, commander at Guantanamo, about the status of the interrogations between late 2002 and early 2003.

The treatment of al-Qahtani was cataloged in an 84-page "torture log"  that was leaked in 2006. The torture log shows that, beginning in November 2002 and continuing well into January 2003, al-Qahtani was subjected to sleep deprivation, interrogated in 20-hour stretches, poked with IVs and left to urinate on himself.

Gitanjali S. Gutierrez, an attorney with the Center for Constitutional Rights who represents al-Qahtani, had said in a sworn declaration that his client, was subjected to months of torture based on verbal and written authorizations from Rumsfeld.

"At Guantánamo, Mr. al-Qahtani was subjected to a regime of aggressive interrogation techniques, known as the 'First Special Interrogation Plan,'" Gutierrez said. "These methods included, but were not limited to, 48 days of severe sleep deprivation and 20-hour interrogations, forced nudity, sexual humiliation, religious humiliation, physical force, prolonged stress positions and prolonged sensory over-stimulation, and threats with military dogs."

In addition, the Senate Armed Services Committee report said al-Qahtani's treatment was viewed as a potential model for other interrogations.

In his book, "Oath Betrayed," Dr. Steven Miles wrote that the meticulously recorded logs of al-Qahtani's interrogation and torture focus "on the emotions and interactions of the prisoner, rather than on the questions that were asked and the information that was obtained."

The uncertainty surrounding these experimental techniques resulted in the presence of medical personnel on site, and frequent and consistent medical checks of the detainee. The results of the monitoring, which likely included vital signs and other stress markers, would also become data that could be analyzed to understand how the new interrogation techniques worked.

In January 2004, the Director of Defense Research and Engineering (DDR&E) initiated a DoD-wide review of human subjects protection policies. A Navy slide presentation at DoD Training Day on November 14, 2006, hinted strongly at the serious issues behind the entire review.

The Navy presentation framed the problem in the light of the history of US governmental "non-compliance" with human subjects research protections, including "US Government Mind Control Experiments - LSD, MKULTRA, MKDELTA (1950-1970s)"; a 90-day national "stand down" in 2003 for all human subject research and development activities "ordered in response to the death of subjects"; as well as use of "unqualified researchers."

The Training Day presentation said the review found the Navy "not in full compliance with Federal policies on human subjects protection." Furthermore, DDR&E found the Navy had "no single point of accountability for human subject protections."

DoD refused to respond to questions regarding the 2004 review. Moreover, Maj. Gen. Ronald Sega, who at the time was the DDR&E, did not return calls for comment.

Ongoing Research

Meanwhile, the end of the Bush administration has not resulted in a total abandonment of the research regarding interrogation program.

Last March, Director of National Intelligence Dennis Blair, who recently resigned, disclosed that the Obama administration's High-Value Detainee Interrogation Group (HIG), planned on conducting "scientific research" to determine "if there are better ways to get information from people that are consistent with our values."

"It is going to do scientific research on that long-neglected area," Blair said during testimony before the House Intelligence Committee. He did not provide additional details as to what the "scientific research" entailed.

As for the Wolfowitz directive, Pentagon spokeswoman Snyder said it did not open the door to human experimentation on war on terror detainees.

"There is no detainee policy, directive or instruction - or exceptions to such - that would permit performing human research testing on DoD detainees," Snyder said. "Moreover, none of the numerous investigations into allegations of misconduct by interrogators or the guard force found any evidence of such activities."

Snyder added that DoD is in the process of updating the Wolfowitz directive and it will be "completed for review next year."

Reposted under guidelines of Creative Commons Attribution - Non-Commercial 3.0 License.

Outrage: U.S. Covers Up Major Afghan War Crime

James Risen has an article at the New York Times about the long-time cover-up by U.S. officials during the Bush Administration to block any investigation into Dasht-e-Leili massacre. In November 2001, US military and intelligence personnel were operating jointly in northern Afghanistan when U.S. backed warlord Gen. Dostum had up to 2,000 surrendered Taliban fighters locked into metal containers and suffocated to death.

From Risen's article (emphasis added)

American officials had been reluctant to pursue an investigation — sought by officials from the F.B.I., the State Department, the Red Cross and human rights groups — because the warlord, Gen. Abdul Rashid Dostum, was on the payroll of the C.I.A., and his militia worked closely with United States Special Forces in 2001, several officials said. They said the United States also worried about undermining the American-supported government of President Hamid Karzai, in which General Dostum had served as a defense official....

The question of culpability for the prisoner deaths — which may have been the most significant war crime in Afghanistan after the 2001 American-led invasion — has taken on new urgency since the general, an important ally of Mr. Karzai, was reinstated to his government post last month.

Apparently, the Obama administration has quietly tried to dissuade the Karzai government from allowing Dostum back into office, but without success.

Physicians for Human Rights (PHR) has issued a call for a criminal probe, citing new evidence that the Bush Administration impeded at least three federal investigations into alleged war crimes in Afghanistan in 2002. It is also calling for Attorney General Eric Holder "to investigate why the Bush Administration impeded an FBI criminal probe of the alleged Dasht-e-Leili massacre."

Physicians for Human Rights, which shared the 1997 Nobel Peace Prize, first documented the existence of the alleged mass grave in January 2002 and since then:

-- Advocated for witnesses to be protected, the mass grave site to be secured, and for a full and impartial investigation;

-- Conducted preliminary forensic investigations — including exposing 15 remains and conducting three autopsies — under UN auspices at Dasht-e-Leili;

-- Successfully sued for compliance with a PHR Freedom of Information Act (FOIA) request for the release of US government documents that reveal US intelligence knowledge of the magnitude of the alleged crime and awareness of the execution and torture of witnesses to the incidents;

-- Helped identify the US chain of command likely responsible for impeding federal investigations into the alleged massacre;

-- Discovered and reported on alleged tampering of the site; and

-- Requested satellite image analysis by the American Association for the Advancement of Science (AAAS) that appears to demonstrate that tampering occurred soon after PHR filed its FOIA request in June 2006.

In a late breaking news report by AP, the Obama administration has lamely said it does not have jurisdiction to investigate the crime. This is total bullshit. As PHR put it in a press release late Friday (emphasis added):

“For US Government officials to claim that there is no legal basis to investigate this well-documented mass atrocity is absurd,” stated Physicians for Human Rights Deputy Director Susannah Sirkin. “US military and intelligence personnel were operating jointly and accepted the surrender of the prisoners jointly with General Dostum’s forces in northern Afghanistan. The Obama Administration has a legal obligation to determine what US officials knew, where US personnel were, what involvement they had, and the actions of US allies during and after the massacre. These questions, nearly eight years later, remain unanswered.”

“Furthermore,” added Nathaniel Raymond, PHR’s lead researcher on the Dasht-e-Leili case, “The New York Times has shown that the Bush Administration engaged in a coordinated effort to prevent this alleged war crime from ever being investigated. Under the Geneva Conventions, the cover-up of a war crime can itself constitute a war crime.”

PHR has a timeline of the investigation, and has posted an appeal to sign a petition to Attorney General Eric Holder to "let the FBI finally proceed with a fair and impartial investigation."

As Nathaniel Raymond, PHR’s lead researcher on Dasht-e-Leili, put it:

“The Bush Administration’s disregard for the rule of law and the Geneva Conventions led to torture of prisoners in Guantánamo and many other secret places.... Contrary to the legal opinions of the previous Department of Justice, the principles of the Geneva Conventions are non-negotiable, as is their enforcement. President Obama must open a full and transparent criminal probe and prosecute any US officials found to have broken the law.”

Last December, writing on the revelations surrounding the destruction of mass grave sites in Afghanistan associated with the Dasht-e-Leili massacre (from a McClatchy papers report), I wrote:

... I can't believe that NATO or U.S. forces will work strenuously to investigate war atrocities, especially as atrocities continue in the U.S.-backed military occupation of the country, and put zero faith in either NATO or the U.S.'s ability to conduct such an impartial investigation....

An international investigatory commission, independent of any government, and staffed by human rights representatives and other trusted citizens, including what representatives from the victims' families, in all the countries involved, perhaps sponsored by the UN or the ICC, should be formed to prosecute these kinds of cases, as the governments involved are too compromised. In the meantime, the work of PHR's forensic department, and the organization as a whole, deserves your support.