Guest blog by Renée LLanusa-Cestero, M.A., C.I.P

The comments and opinions in this post reflect only those of Renée LLanusa-Cestero, director of La Cesta Consultants, LLC, and do not necessarily represent the opinion of PRIM&R or its Board of Directors.

The release of the CIA Inspector General Special Review of Counterterrorism Detention and Interrogation Activities (IG Report) has prompted a call from Physicians for Human Rights (PHR) for health professionals who have violated ethical standards, as detailed in the IG Report, to be held accountable through criminal prosecution, loss of license, and loss of professional society membership, where appropriate.

This two-part post series focuses on a previously unknown category of ethical violation identified by PHR and of particular concern to PRIM&R members: unethical human experimentation and the development of research to assess and refine the use of the waterboard.

The IG Report (¶266) anticipated the appointment of a special prosecutor to investigate torture and the PHR call for a full investigation of the role of medical and psychological professionals for war crimes (¶231). Setting aside the crucially important legal and moral issues for a moment, I propose a post hoc review of the IG Report to examine the PHR concern that data collection and analysis on the use of the waterboard may have amounted to unethical human experimentation by addressing the fundamental questions posed by IRBs.

Does the Common Rule apply? Yes.
Pursuant to Executive Order 12333, the CIA is one of 17 federal departments and agencies that have adopted the Common Rule. The Common Rule stipulates department or agency heads retain final judgment as to whether a particular activity is covered by this policy (45CFR46.101(c)). The IG Report reveals no documentation of an exemption from the Common Rule.

Is it human research? Yes.
Did the development of the Detention and Interrogation Program include human experimentation; that is, was it research? The Common Rule definitions of “research,” “human subject,” and “intervention” appear to apply (45CFR46.102(e) and (f), respectively).

For example, Appendix F of the IG Report, Draft OMS [Office of Medical Services] Guidelines on Medical and Psychological Support to Detainee Interrogation, (the Guidelines) provide chilling, clinically descriptive standard and enhanced interrogation techniques in ascending degree of intensity culminating with the waterboard, the most traumatic of the enhanced interrogation techniques (F:1). The Guidelines conclude with the following Note:

NOTE: In order to best inform future medical judgments and recommendations, it is important that every application of the waterboard be thoroughly documented: how long each application (and the entire procedure) lasted, how much water was used in the process (realizing that much splashes off), how exactly the water was applied, if a seal was achieved, if the naso- or oropharynx was filled, what sort of volume was expelled, how long was the break between applications, and how the subject looked between each treatment. (F:10 italics in the original)

The perverse use of the term “treatment” notwithstanding, this Note clearly defines goals and roles associated with research as defined in the Common Rule. The goal, to best inform future medical judgments and recommendations, aims at the development of generalizable knowledge on the use of the waterboard in the interrogation of the targeted subject detainee population.

Check back tomorrow for the second part of this two-part series!