Jim Gearhart

by Jim Gearhart

What does The Common Rule have to do with CIA Interrogations?

In December 2014 the Senate Intelligence Committee stirred up controversy when it released part of its classified report on CIA interrogation techniques. Observers and leaders all weighed in with opinions and conclusions. The intense discussions piqued my interest, so I downloaded the report, I wasn’t sure what I would find, but I definitely did not expect a reference to the Federal Policy for the Protection of Human Subjects, what we usually call the Common Rule.

The Common Rule is something familiar to anyone who works with, on, or for an IRB. It guides how federal agencies conduct research on people, and in the world of ethical review boards we encounter it every day. But its appearance in a report about the treatment of suspected terrorists surprised me.

The Senate Intelligence Committee’s report on interrogations (full title: Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program) looked at how the CIA held and treated terrorist suspects, especially how it applied what it called “Enhanced Interrogation Techniques,” between 2001 and 2009. The controversial interrogations started officially in August of 2002, when the Department of Justice authorized eleven techniques for the CIA to use on its terrorist suspects. The report notes that international agreements and many human rights groups would consider these practices torture:

  • Attention Grasp
  • Walling
  • The Facial Hold
  • The Facial Slap
  • Cramped confinement
  • Wall standing
  • Stress positions
  • Sleep deprivation
  • Use of diapers
  • Use of insects
  • Waterboarding

These practices, how the CIA used them, and what effect they had has been the subject of intense debate, and make up the bulk of the 500+ pages the Senate Intelligence Committee released (not to mention the 6,000 pages of the original report that remain classified, a rebuttal from the minority members of the committee, and a 130-page response from the CIA). Here I’ll concentrate on that reference to the Federal Policy for the Protection of Human Subjects. It appeared in the Conclusions and Findings section of the report, as part of Conclusion #16: “The CIA failed to adequately evaluate the effectiveness of it enhanced interrogation techniques.” The Common Rule came up when someone questioned the techniques’ effectiveness.

In 2004, the CIA was reviewing the program and internally someone asked whether these techniques worked better than more conventional ones might. The Report quotes a (still classified) response that says an independent assessment of interrogation techniques was not possible “without violating ‘Federal Policy for the Protection of Human Subjects’ regarding human experimentation.”  That is, it would not be ethical to test on volunteers what the CIA was doing to captured terrorists. The question of effectiveness came up again, in a report from the Inspector General, the CIA’s internal auditing section. According to the Senate Committee report, the Inspector General asked for evidence that the eleven approved techniques were effective. One independent reviewer of the program answered in a memo that “there is no objective way to answer the question of efficacy.”

While some were asking about the techniques’ effectiveness, others were wondering about their physical risks. In 2002, National Security Advisor Condeleeza Rice asked for “any available empirical data” on permanent effects the interrogation techniques might have on the prisoners. The top official at the CIA interrogation center acknowledged that permanent harm was possible: “(W)e should not say at the outset of this process that there is no risk.”

So here was a program with unproven effectiveness and with some very possible harms. In some ways, it sounds similar to questions our ethical committees face regularly: how do we weigh the potential benefit of life-saving information to some against the likelihood of physical or psychological harms to others? A crucial part of an IRB’s responsibilities is to weigh research’s benefits against its risks, and that responsibility grew out of experience. In the 20th century, US researchers deceived people about having a fatal, contagious disease. We exposed prisoners to harmful substances. We gave hallucinogenic drugs to unwitting people and exposed children to radiation. We did all of that with the goal of increasing knowledge, and the Common Rule’s ethical guidelines were a response to the human suffering that came from those studies.

So maybe a reference to the Common Rule did make sense in a report that probed the use of waterboarding, cramped confinement, and sleep deprivation. Its presence can remind of lessons learned, and prod us to remember those lessons when facing new dilemmas.

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