Detainee Ethics: Terrorists as Research Subjects
by Jonathan D. Moreno
2003. The American Journal of Bioethics 3(4):W32-W33

Considering the circumstances of the detainees' incarceration not only direct ethical concerns about respect for persons, but also the indirect results of this behavioral research raise questions. It seems unlikely that these so-called interviews are benign chats over a pot of tea.

In his introduction to The Nazi Doctors, psychiatrist Robert Jay Lifton recalled a requirement imposed on him by the research ethics committee at Yale, where he was then on the faculty: Before beginning his interviews with the elderly physicians who had functioned in the racist bureaucracy of the Third Reich, Lifton would have to provide each of them with a consent form indicating that their participation in Lifton's research was voluntary and that they could withdraw at any time (Lifton 2000).

Though Lifton remarks on this incident almost in passing, it was for me a powerful and supremely ironic moment in his project, that some of the same individuals who contributed to the crimes that helped inspire modern research ethics should themselves be protected by the moral lessons learned. Yet consistency and principle seem to require no less than that ethical standards be applied without prejudice, in spite of the grotesqueries perpetrated by the individuals who are by virtue of their behavior objects of scientific interest. Our very humanity as moral agents is in this way affirmed, for the harder it is to apply ethical principles to persons whose conduct has violated the conditions of human decency, the more important it is to do so.

In our own time terrorism evokes its own cruel horror, and just as there is good reason to try to understand the mind of a racist thug, so there is also good reason to examine the processes that can drive an individual to wanton destruction of innocent human life. Since August 2002, behavioral scientists have been engaged in interviewing suspected al-Qaeda detainees at the U.S. Naval Base in Guantanamo Bay, Cuba. "We are trying to get more cultural knowledge and get into the minds of radical fundamentalists," one anonymous government official told the press. Sent by the FBI, the psychologists are reportedly attempting to learn about the detainees' personal lives and why they joined a terrorist organization, as well as their views of the United States (CBN News 2002; BBC News 2003; Washington Times 2002).

The ultimate goal of these psychological profiles is of course to gain enough knowledge of the motivations of such people so that efforts to alter their views or at least anticipate their activities can be more targeted and effective. Behavioral scientists by no means agree that these kinds of assessments can help achieve these goals, especially under the circumstances in which the detainees are being held. But putting scientific legitimacy aside for the moment, it seems a sure bet that there has been no IRB review within the Justice Department of the psychological profiling project, in spite of the fact that "generalizable knowledge" about Islamic militants is the aim. From one perspective this is hardly surprising: Not only do the detainees occupy a fuzzy legal status that seems to disqualify them from the rights normally ascribed to prisoners, it's hard to think of a group less likely to inspire sympathy among Americans than al-Qaeda fighters.

Nor are the detainees technically prisoners of war, because they are not associated with a state but rather with a criminal organization. Yet the Nazi war criminals were also characterized by American prosecutors as essentially a group of street toughs that happened to gain control of an important country, thereby justifying their prosecution without the immunity that was then commonly granted to national leaders. The National Socialist Party was identified by the prosecution as a "criminal organization" rather than a political party in the usual sense, which was a critical element of the case against individual party leaders (Taylor 1992). In these terms the Nazi Party and al-Qaeda analogy has some merit. Suppose, then, that the detainees should be treated as prisoners of war, as some legal commentators have argued in opposition to U.S. policy. In 1953, the Pentagon adopted the Nuremberg Code as its policy to govern human experiments, and added an eleventh rule: that prisoners of war should not be used as research subjects (Moreno 2001).

These inconvenient historical details at least suggest that, awkward as it might be, the detainees' right to be considered as human research subjects in the context of data-gathering interviews cannot easily be waved aside. Granted that the administration of a consent form at Guantanamo is about as likely an event as the current attorney general presiding over a gay marriage ceremony. Unlike the passions of the day, however, history tends to be less forgiving when governments ride roughshod over those values that are supposed to be among their most cherished. And the articulation of basic human rights following the victory over Nazi Germany is commonly taken to be one of the precious lessons of that carnage.

Finally, even the trump card of national security necessity is not so easily played. One of the Findings of the President's Advisory Committee on Human Experiments in 1995 was that "for the period 1944 to 1974 [the period within the Committee's purview] there is no evidence that any government statement or policy on research involving human subject contained a provision permitting a waiver of consent requirements for national security reasons" (Advisory Committee 1995). If the current administration has issued such a waiver, it would be without precedent.

Considering the circumstances of the detainees' incarceration not only direct ethical concerns about respect for persons, but also the indirect results of this behavioral research raise questions. It seems unlikely that these so-called interviews are benign chats over a pot of tea. Lack of cooperation could well convince authorities to extend the period of arrest and intensify the methods used to secure a more informative session. Research rules as they apply to prisoners of war or other miscreants in captivity are intended to prevent the putative scientific activity from becoming an opportunity for maltreatment.

If the war on terror continues indefinitely, as seems to be the case, this matter is sure to come up again. The Viet Cong were similarly examined during the Vietnam War, as were Communist prisoners during the Korean conflict. And then there are the unanswered questions about the very validity of such "research." Here is a radical suggestion: explaining to captives that our values include respecting their right not to be part of a scientific study might just elicit more cooperation than otherwise. In light of the stakes for both our survival and our decency it seems a hypothesis worth exploring.

References
Advisory Committee on Human Radiation Experiments. 1995. The Human Radiation Experiments, 501. New York: Oxford University Press.

BBC News. 2002. U.S. Delves into al-Qaeda Mindset. 9 August. Available from: Web (accessed August 8, 2003).

CBN News. 2002. FBI to Profile al-Qaida Detainees. 9 August. Available from: Web (accessed August 8, 2003).

Lifton, R. J. 2000. The Nazi Doctors: Medical Killing and the Psychology of Genocide. New York: Basic Books.

Moreno, J. D. 2001. Undue Risk: Secret State Experiments on Humans. New York: Routledge.

Taylor, T. 1992. Anatomy of the Nuremberg Trials. Boston: Little, Brown & Company.

The Washington Times. 2002. Psychological Profiles of al Qaeda Suspects Sought. 10 August. Available from: Web (accessed August 8, 2003).