USA: Human dignity denied: Torture and accountability in the 'war on terror'

93

2.3 Access to doctors

The complicity of US military medical personnel during abuses of detainees in Iraq, Afghanistan, and Guantánamo Bay is of great importance to human rights, medical ethics, and military medicine... An inquiry into the behaviour of medical personnel in places such as Abu Ghraib could lead to valuable reforms within military medicire. UK medical journal, 21 August 2004**

Amnesty International believes that detainees should have access to independent doctors as soon as possible after arrest. Doctors must in no way participate in any torture or ill-treatment and must expose any such treatment of which they become aware.

392

International standards require detainees and prisoners to be given or offered a medical examination as promptly as possible after they have been taken into custody.” They also call for medical personnel to advise on basic prison conditions, such as food, light. ventilation and hygiene. The evolution of international standards relating to the medical care of detainees and prisoners has also been paralleled by the elaboration of ethical principles for health professionals in their relations with detainees. In particular, principles adopted by the UN General Assembly in 1982 state:

"It is a gross contravention of medical ethics, as well as an offence under applicable international instruments, for health personnel, particularly physicians, to engage. actively or passively, in acts which constitute participation in, complicity in, incitement to or attempts to commit torture or other cruel, inhuman or degrading treatment or punishment.'

..393

390

at the direction of senior officials.” Human rights standards applicable to the United States' interrogation of detainees. Supplementary report, 4 June 2004. Association of the Bar of the City of New York. Page 12, n. 22. The Army Inspector General “did not observe a dedicated judge advocate for interrogation operations". Detainee Operations Inspection, 21 July 2004, supra, note 27, page 15. Abu Ghraib: its legacy for military medicine. Steven H. Miles. The Lancet. Vol. 364, Number 9435. 391 Rule 24 of the UN Standard Minimum Rules for the Treatment of Prisoners states: "The medical officer shall see and examine every prisoner as soon as possible after his admission and thereafter as necessary". The UN Human Rights Committee has emphasized the need to have detainees “examined by an independent doctor as soon as they are arrested [and] after each period of questioning". UN Doc. A/52/40 (1998). para. 109, referring to Switzerland. The Special Rapporteur on torture has stated: “At the time of arrest, a person should undergo a medical inspection, and medical inspections should be repeated regularly and should be compulsory upon transfer to another place of detention." UN Doc. E/CN.4/2002/76, 27 December 2001, Annex 1.

392 Rule 26, UN Standard Minimum Rules.

393 Principle 2. Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Adopted by General Assembly resolution 37/194 of 18 December 1982. The World Medical Association (of which the American Medical Association is a member) provides for similar strictures in its Declaration of Tokyo (1975). Paragraph 1 specifies: "The doctor shall not countenance, condone or participate in the practice of torture or other forms of cruel, inhuman

94

USA: Human dignity denied: Torture and accountability in the 'war on terror'

The same safeguards also state that it is a contravention of medical ethics for health personnel to apply their knowledge and skills in order to assist in the interrogation of detainees “in a manner that may adversely affect" their physical or mental health. They must not certify or participate in the certification of the fitness of detainees for "any form of treatment or punishment that may adversely affect their physical or mental health". Also they must not participate in any procedure for restraining a detaince except under strictly medical criteria as being necessary for safety reasons and harmless to the detainee's physical or mental health. There "may be no derogation from the foregoing principles on any grounds whatsoever, including public emergency”.

394

According to a leaked military document, the ICRC raised allegations in a meeting with the Guantánamo authorities in October 2003 that interrogators at the base had had access to the medical files of detainees, that the files were "being used by interrogators to gain information in developing an interrogation plan", and "that there is a link between the interrogation team and the medical team". Major General Miller, the camp commander, rejected the allegations."

395

The 12 October 2003 interrogation policy in Iraq listed “dictary manipulation”, “sleep management", and "sensory deprivation", as techniques that could be authorized as long as they were "monitored by medics" (see page 70-71);

In the "war on terror", sleep deprivation, stress positions, hooding, stripping, and the cruel use of restraints are among the practices employed against detainees. Hakkim Shah, a 32-year-old Afghan farmer was reportedly subjected to torture and ill-treatment in the US air base in Bagram. IIe said that he was held naked for 16 days in an upstairs room in the facility, hooded, shackled, and forced to stand by being secured to the ceiling. After 10 days, his legs reportedly became so swollen that the shackles cut off the blood supply and he could no longer stand. According to the allegations, doctors eventually removed the shackles and he was allowed to sit.396

The final report of the Pentagon Working Group suggests the potentially institutionalized involvement of medical personnel in interrogation techniques that violate international standards: "The use of exceptional interrogation techniques should be limited to... when the detainee is medically and operationally evaluated as suitable."""'Drawing on

or degrading procedures, whatever the offence of which the victim of such procedure is suspected, accursed or guilty, and whatever the victim's belief or motives, and in all situations, including armed conflict and civil strife."

394 Principles 4 (a), 4(b), 5 and 6. Principles of Medical Ethics, supra, note 393.

395 Memorandum for Record. ICRC Meeting with MG Miller on 9 Oct 03, supra, note 52. The principle of confidentiality of medical information should not be overturned when a person enters prison. The European Committee for the Prevention of Torture has repeatedly stated in relation to detainees that "the confidentiality of medical data is to be strictly observed". See e.g. Report on initial visit to the Czech Republic (1997), CPT/Inf (99), para. 32; Report to the Government of the Slovak Republic on the visit to Slovakią, CPT/Inf (2001) 29 (2001), para. 35.

396

397

New charges raise questions on abuse in Afghan prisons. New York Times, 16 September 2004. Pentagon Working Group Report, 4 April 2003, supra, note 56.

USA: Human dignity denied: Torture and accountability in the 'war on terror'

95

this, a 12 October 2003 US interrogation policy in Iraq noted that stress positions, dietary manipulation and sleep management could be used as interrogation techniques if “monitored by medics" (see page 70). The assumption that doctors will participate in torture or cruel, inhuman or degrading treatment, which defies the age-old ethical requirement that doctors act only with their patient's health and well-being in mind, was also apparent in a military memorandum requesting approval for various interrogation techniques at Guantánamo Bay in late 2002. One of the techniques requested was "exposure to cold weather or water (with appropriate medical monitoring)" - [emphasis added]. The request passed various levels of authority, including the General Counsel to the Secretary of Defense who suggested that it was legally available although not warranted on a blanket basis at that time.

398

399

The totality of the conditions at Guantánamo Bay have had a seriously adverse effect on the psychological health of many of the detainees held there, according to the ICRC, the only independent organization to have had access to the detainees. Relevant professional and ethical standards make clear that the mental health professionals at the prison camp should raise the detention conditions and their effects on prisoners with the authorities. Amnesty International is not aware that they have done so, and points out that they are not independent - instead, like the detaining force, they are employed by the military. The Department of Defense has disclosed that there have been over 30 suicide attempts among the detainees. It has been reported that a decrease in the rate of suicide attempts is the result of the military psychiatrists reclassifying such attempts as "manipulative self-injurious behaviour", and that the total of suicide attempts under the old classification is now over 70.“

400

The final report of the Pentagon Working Group on "war on terror" interrogations states that US legislation criminalizing torture committed outside the USA “does not preclude any and all use of drugs". The withholding of health care and the use of forcible injections without the detainee knowing what he is being injected with has been alleged.

• Abu Zubaydah, who had been shot in the groin during his arrest, was allegedly denied painkillers to obtain his cooperation during interrogation (see Point 3.2).

• Alif Khan told Amnesty International in July 2003 that he had been given two injections, one in each arm, for his transfer from Afghanistan to Guantánamo. He said that he did not know what they were, but referred to experiencing “a kind of unconsciousness". Former Guantánamo detainee Mehdi Ghezali told Amnesty International in July 2004 that "even if prisoners didn't want any injections they were forced to receive them. Certain prisoners were beaten before they were injected.”

The torture at Abu Ghraib was reported to US army investigators by a soldier, not a doctor. The Fay report found that medical personnel "may have been aware of detainee abuse at Abu Ghraib and failed to report it”. The report called for an inquiry into this specific issue. Reported incidents implicating medical personnel include:

398 Memorandum for Commander, Joint Task Force 170. Subject: Request for approval of CounterResistance strategies. 11 October 2002. http://www.defenselink.mil/news/Jun2004/d20040622doc3.pdf Action memo. Signed by Secretary Rumsfeld, 2 December 2002, supra, note 49.

399

96

USA: Human dignity denied: Torture and accountability in the war on terror'

"After they brought six people and they beat them up until they dropped to the floor and one of them his nose was cut and the blood was running from his nose and he was screaming but no one was responding and all this beating from [Guard X] and [Guard Y] and another man, whom I don't know the name. The doctor came to stitch the nose and [Guard X] asked the doctor to learn how to stitch and it's true, the guard learned how to stitch. He took the string and needle and he sat down to finish the stitching...."

,,401

1.402

"One of the prisoners was bleeding from a cut he got over his eye. Then they called the doctor who came and fixed him. After that they started beating him again...'

A military guard at Abu Ghraib wrote home about a death in custody in November 2003. He wrote that the day after his death, "the medics came and put his body on a stretcher, placed a fake [intravenous drip] in his arm and took him away".*

2.4 Access to relatives

403

Police continued to hold individuals without granting access to family members or lawyers. US State Department human rights report entry on China, 2004

404

Amnesty International issued a worldwide appeal in July 2004 for Sattam Hameed Farhan alGa'ood who had been arrested at his home in Baghdad by US soldiers on 19 April 2003.** Hc had not been seen for over a year, and although his family had received a number of messages via the ICRC to indicate that he was in detention, his whereabouts were not specified and remained unknown. His case was simply referred to as HVD, thought to mean “high-valuc detainee". The US authorities would appear, however, to place a low value on his right and the right of his family to be informed of his whereabouts and the reason for his arrest.

In its February 2004 report, the ICRC described the distress that family members in Iraq have suffered due to the systematic failure of the Coalition forces to provide information on the whereabouts of detainees. The arresting authorities “rarely informed the arrestee or his family where he was being taken and for how long, resulting in the de facto 'disappearance' of the arrestee for weeks or even months until contact was finally made". The ICRC continued:

401

"In the absence of a system to notify the families of the whereabouts of their arrested relatives, many were left without news for months, often fearing that their relatives unaccounted for were dead... [H]undreds of families have had to wait anxiously for weeks and sometimes months before learning of the whereabouts of their relatives

Statement provided by Shalan to military investigators, 17 January 2004. http://www.washingtonpost.com/wp-srv/world/iraq/abughraib/150422.pdf.

402 Statement provided by Mustafa to military investigators, 17 January 2004. http://media.washingtonpost.com/wp-srv/world/iraq/abughraib/150542-1.pdf.

403

Staff Sergeant Ivan Frederick, Copy of communications on file at Amnesty International. According to the Fay report, this deception was "so as not to draw the attention of the Iraqi guards and detainees".

404

Traq: Detained in an unknown location, http://web.amnesty.org/appeals/index/irg-010704-wwa-eng.

USA: Human dignity denied: Torture and accountability in the 'war on terror'

97

and often come to learn about their whereabouts informally (through released detainees) or when the person deprived of his liberty is released and returns home.”

The suffering of relatives of the “disappeared" (see Point 3) has been found by the UN Human Rights Committee to amount to torture or cruel, inhuman and degrading treatment. 405 Similar cruelty is inflicted on the relatives of people held in indefinite incommunicado detention where the authorities fail to take steps to promptly inform the family of their loved one's arrest and whereabouts.

The family of Jamal Mar'i say that he left his native Yemen in 2001 to go to Pakistan to find work and pursue further studies. On 10 April 2004, his brother recalled: "Jamal set himself up in Karachi, Pakistan. While there, Jamal called and wrote to us regularly. It never felt as if he was very far away." Some time after 11 September 2001, a friend told the family that he had received a call from his son who was also in Karachi and knew Jamal. Ile said that he thought Jamal had been arrested in Karachi by US agents. Jamal's brother continued:

"Some weeks later, my mother received a telephone call from the International Committee of the Red Cross from Jordan to say that Jamal was detained there... Some time after receiving the call from the ICRC, my family received a message from Jamal via the ICRC, Jordan. In this short note, Jamal said that he was held in Jordan... Then, in April 2002, we received an ICRC message from him from the ICRC in Yemen. The message had been sent from Guaniánamo Bay... In November 2003. Jamal's messages stopped coming. We don't know why... We have no way of finding out how he is; whether he is healthy, even whether he is alive. My mother has taken Jamal's disappearance the worst. She has developed high blood pressure and often sinks into bouts of very deep depression. In many ways, it would be preferable if we knew Jamal was dead for at least then we would be able to grieve and eventually get over his death. It's the simply not knowing what has happened to him that affects us all the most. If only we could hear his voice, learn that he is safe and well that would make our lives so much better. Jamal's wife is beside herself with worry. His young children don't understand what has happened to their father and consianıḥy ask where he is, why doesn't he call and when he is coming back home. 406

The US authorities have shown little sympathy for the plight of families of detainees, spreading a level of distress and resentment in the community.

407

405

Maria del Carmen Almeida de Quinteros, on behalf of her daughter, Elena Quinteros Almeida, and on her own behalf v. Uruguay, Communication No. 107/1981 (17 September 1981), UN GAOR Supp. No. 40 (A/38/40) at 216 (1983), para. 14.

406

Affidavit of Nabil Mohamed Mar'i. 10 April 2004. Sana'a, Yemen. The suffering of relatives of detainees was clear at the conference organized by Amnesty International in Sana'a. See The Gulf and the Arabian Peninsula: Human rights fall victim to the "War on Terror". Al Index: MDE 04/002/2004, June 2004. bup://web.amnesty.org/library/Index/ENGMDL040022004

407 For example. Secretary Rumsfeld was asked if relatives would ever be able to visit detainees in Guantánamo. He replied. “Oh, I would doubt it... No, I would think that would be highly unlikely”. Interview with the Sunday Times, 21 March 2002.