APA Newsletters

Volume 05, Number 1 Fall 2005
NEWSLETTER ON PHILOSOPHY AND MEDICINE FROM THE EDITORS, ROSAMOND RHODES AND MARK SHELDON
FROM THE CHAIR, DAVID DEGRAZIA "Of Unions and Unity" ARTICLES TIMOTHY F. MURPHY "Gov. Jeb Bush Orders Terry Schiavo Back from the Dead" KIMBERLY AMOROSO "Frozen Embryo Adoption and the United States Government" STEVEN H. MILES, M.D. "Medical Investigations of Homicides of Prisoners of War in Iraq and Afghanistan" HOWARD BRODY "Physician Integrity, Enhancement Technologies, and Consumer Autonomy" REBECCA KUKLA "The Limits of Lines: Negotiating Hard Medical Choices" AGNIESZKA JAWORSKA "From Caring to Self-Governance: The Bare Bones of Autonomy and the Limits of Liberalism"
FELICIA NIMUE ACKERMAN "We Gather Together" POETRY FELICIA NIMUE ACKERMAN "Rose and Blue"

 

© 2005 by The American Philosophical Association ISSN: 1067-9464

FROM THE EDITORS This is an eclectic edition of the Newsletter on Philosophy and Medicine. It includes news items, papers from a Committee-sponsored session, and a delightful short story. Timothy F. Murphy has sent us the latest news from Florida. His report, "Gov. Jeb Bush Orders Terry Schiavo Back from the Dead," is a must read for anyone who wants a chuckle and to keep up to date with the still-evolving strange case of Terry Schiavo. Kimberly Amoroso has sent us enlightening information on recent action in Washington, D.C., concerning embryo donation. In her piece on "Frozen Embryo Adoption and the United States Government," she explains the Bush administration’s policies, fueled by a religious and political agenda, that provide direct support for embryo donation and also attempt to limit the destruction of human embryos by including embryo donation in a proposed FDA tissue donation policy. Amoroso shows just how those two policies conflict and why lobbying by assisted reproduction agencies ultimately succeeded in amending the tissue donation embryo donation regulations. The third news item in this issue is "Medical Investigations of Homicides of Prisoners of War in Iraq and Afghanistan," by physician Steven Miles. This important article was posted on 07/05/2005 in Medscape General Medicine eJournal. We thought that our readers were not likely to encounter this report and that it would be of interest because of the issues it raises about the role of physicians in war and torture. With the permission of the author and George Lundberg, the eJournal editor, we are pleased to include it in this issue of the Newsletter. In this article, Miles points out that the Armed Forces Institute of Pathology has the responsibility for determining the cause of death of prisoners who die in U.S. detention. Ten years ago, the Institute created the Armed Forces Office of the Medical Examiner (AFME) for this purpose. Miles argues that "the AFME was not prepared to investigate the deaths of prisoners who may have died of torture." Miles succinctly and powerfully lays out the ways in which, in light of the Geneva Convention, the laws of the United States, and the United Nations and World Health Organization’s Manual on Investigation and Documentation of Torture, the AFME, and the Institute of Pathology have failed miserably. As Miles states, "Our national reputation and interests were harmed by these failures." Hilde Lindemann of Michigan State University organized this year’s Committee-sponsored session at the APA Central Division meeting. The topic was "Limits of and Challenges to Liberalism in Bioethics." Given patient requests for such things as sex selection, amputation of healthy limbs, heart donation, selecting embryos for deafness, genetically altering embryos to make offspring white instead of black, the panelists were asked to discuss where and how physicians should draw the line. Margaret Battin, Howard Brody, Agnieszka Jaworska, and Rebecca Kukla all offered their views on these issues. The papers by Howard Brody, George Lundberg, Rebecca Kukla, and Agnieszka Jaworska are included in this issue, and, together, they provide a range of how this topic could be interpreted. In his paper, "Physician Integrity, Enhancement Technologies, and Consumer Autonomy," philosopher-physician Howard Brody argues for drawing a line between interventions that should be determined by physician judgment and those that should properly be left up to patients. In "The Limits of Lines: Negotiating Hard Medical Choices," Rebecca Kukla argues against drawing a firm line between medical decisions that must be governed by the patients and the place for physician discretion. Instead, she comes down for sorting cases into categories that would be more reflective of patient reasons. In "From Caring to Self-Governance: The Bare Bones of Autonomy and the Limits of Liberalism," Agnieszka Jaworska identifies autonomy as the key issue. She explores the concept by defining a self-governing agent as someone who has a reason to pursue what she cares about. Employing this sense of autonomy expands the range of cases in which patients deserve protection from paternalistic interference. We are happy to also include "We Gather Together" and "Rose and Blue," a new short story and a new poem by Felicia Nimue Ackerman. Those Newsletter readers who have enjoyed her stories as they appeared in these pages will be happy to learn that a volume of Ackerman’s stories, Bioethics through Fiction, is being published by Rowman & Littlefield in their series Explorations in Bioethics and the Medical Humanities, edited by James L. Nelson. The book will consist of a series of essays she is writing about the relevance of her stories to bioethics, along with seven of her short stories, all of which originally appeared in magazines or anthologies and were reprinted in this Newsletter. "We Gather Together," the story for this issue, raises interesting psychological questions about projection and the danger of leaping to presumptive conclusions about the lives of others. Both are hazards for clinical practice. In order to continue offering our readers exciting issues jam-packed with timely and informative pieces and provocative philosophical discussions, please continue to send us your work. We also remind you to think of this Newsletter as a place for your announcements, letters, papers, case analyses, poetry, and stories. Please feel free to volunteer a book review. Your contributions and queries should be sent to Rosamond or Mark at the addresses below. Please include your phone and fax numbers and email address. Rosamond Rhodes and Mark Sheldon Co-Editors, Newsletter on Philosophy and Medicine Rosamond Rhodes Box 1108 Mount Sinai School of Medicine One Gustave Levy Place New York, NY 10029 Phone: 212-241-3757; Fax: 212-241-5028 Email: rosamond.rhodes@mssm.edu Mark Sheldon Department of Philosophy and Medical Ethics and Humanities Program Northwestern University Evanston, IL 60208 Phone: 847-328-2739 Email: sheldon@northwestern.edu
FROM THE CHAIR
Of Unions and Unity
David DeGrazia George Washington University As spring approached this year, I was confident that our panels scheduled for the Pacific and Central Division meetings would run smoothly and that, soon afterward, I would hear glowing reports from committee members who had attended. That assumption proved only half correct. Rosamond Rhodes, co-editor of this Newsletter, had organized for the late-March Pacific Division meeting in San Francisco a panel commemorating the twenty-fifth anniversary of the Belmont Report. With Rosamond chairing, the lineup of speakers and topics was as follows: Tom Beauchamp, " The Belmont Report: Some Second Thoughts"
Ruth Macklin, "The Belmont Principle of Justice: An Idea Whose Time Has Come"
Alex John London, "The Belmont Report and the Social Division of Labor"
Jodi Halpern, "How Emotions Influence the Ability to Consent to Research"
Frank Miller, "The Ethical Significance of Distinguishing Clinical Research and Medical Care"

This promised to be one of our best panels in memory.

But several weeks before the meeting was scheduled, discussion emerged about the possibility of a strike by union members who worked at the Westin St. Francis, where the meeting was to take place. It proved difficult, however, to attain a clear understanding of what exactly had happened and whether a strike was likely. In any event, one of the panelists, expressing understandable concerns about possibly crossing picket lines, pulled out. Should the panel run anyway? In addition to the difficulties of sorting out the factual picture, we continued to face challenging moral and pragmatic questions. If hotel management had not done right by its workers, how should we respond? We could, of course, pull the panel. Alternatively, we could hold the panel—with four of five speakers—at another venue in San Francisco, where some APA presenters were moving sessions. Or we could simply run the panel at the Westin—with or without a public statement about the situation involving the workers. While all agreed on the importance of supporting unions, how best to do so was far from obvious. Moreover, other moral considerations were salient. For one thing, the Committee on Philosophy and Medicine and individual panelists had, after all, promised a panel. While it is unlikely that any such promise should be regarded as absolutely binding, it certainly carried significant weight. And what of all of the APA members who had scheduled flights and paid conference fees on the understanding that certain sessions, including ours, would run (as promised)? We were especially concerned about graduate students and many others who did not enjoy institutional support for travel. As we continued to mull over these questions, I learned in discussion that another panelist wanted to pull out as well— partly due to union-related concerns and partly in the hope that the panel could be reconstituted fully, or nearly fully, elsewhere. At that point, it seemed best to me to cancel the panel and try to reschedule. I did so, and, after a few days that included communications with leadership of the American Society for Bioethics and Humanities (ASBH), we had a doubly felicitous result: an agreement to run the panel at both the ASBH conference in Washington, D.C., in October (although Ruth Macklin will be unable to speak there due to other obligations) and at the APA’s Eastern Division meeting in New York in December. Many thanks to the panelists and ASBH for making this solution possible. Whew! You will be happy to learn that our panel for the Central Division meeting at the Palmer House Hilton in Chicago ran as expected. Hilde Lindemann chaired the session, entitled "Limits of and Challenges to Liberalism in Bioethics." Speaking were Howard Brody (Michigan State University), Agnieszka Jaworska (Stanford), Rebecca Kukla (Georgetown), and Margaret Battin (University of Utah). The session was, as expected, very well attended and stimulating. As for upcoming panels, in addition to the one rescheduled for New York, there are two in the planning stages. Mary Rorty (Stanford) from our committee is organizing a panel entitled "What is Wrong with Medicalizing?" for the 2006 Pacific meeting in Portland, Oregon. Lee Brown (Howard), another committee member, is putting together a panel, "The Place of Compassion in Medical Education and Medical Care," for the Central Division meeting in Chicago. Because another committee member, Ben Rich (University of California, Davis), was well acquainted his own institution’s empirical work bearing on this topic, we decided to override our presumption that committee members will not serve as speakers (as opposed to chairs) on the panels we sponsor. I greatly look forward to the three upcoming panels. I also look forward to working with Robert Baker (Union College), who joined our committee this month. He replaces Hilde Lindemann, whose term just ended. A heartfelt thanks to Hilde for her years of energetic, intelligent, and conscientious service to this committee.
ARTICLES
Gov. Jeb Bush Orders Terry Schiavo Back from the Dead
Timothy F. Murphy July 6, 2005, Tallahassee, Florida Following the advice of Governor Jeb Bush, the Florida Attorney General issued a subpoena today, ordering Terry Schiavo to return from the grave and testify in a criminal investigation into the cause of her sudden collapse into an unconscious state some fifteen years ago. Ms. Schiavo was the subject of an extended legal battle about her medical treatment preferences, prior to her widely reported death earlier this year. At a news conference in the capital rotunda, Mr. Bush joined the Attorney General and said he would ordinarily not want to call anyone back from the dead but that Ms. Schiavo’s testimony was essential to a criminal investigation. He said, "I call on Terry Schiavo to give up her eternal rest temporarily and appear before the courts. I would hate to see her death stand in the way of the sanctity of her life." Some critics immediately condemned Mr. Bush’s interest in Ms. Schiavo as politically opportunistic. The chairman of the National Democratic Committee, Howard Dean, accused Governor Bush of using criminal investigations to tr y to influence elections in the state. "I wouldn’t be surprised if the Republicans asked Terry Schiavo to fill out an absentee ballot for the next election while she’s around," he said. Some bioethicists criticized the action on moral grounds. Bioethicist Susan Strathmore of Buena Vista University said the legal order violated the privacy expected by the dead. "It is not reasonable that people should have to return from the dead to testify, merely to satisfy the random curiosity of politicians in power at the moment," she said. "Besides, the state has not offered to pay for the costs of her resurrection," she went on. "Who knows what she can afford at this point?" By contrast, bioethicist Willie Camper of the University of the Gulf Coast said that while it would be unusual to recall someone from the beyond, it is not always wrong. He explained that "In bioethics, people should rise from the dead if—on balance—doing so produces more good than harm. We call this the "Lazarus Principle." He acknowledged that some people would still object because of "the yuk factor." "They see these things through the lens of Dawn of the Dead," he said. Leon Kass, chair of the President George W. Bush’s Presidential Council on Bioethics, said that he was sure that Ms. Schiavo’s family would happily welcome her return. But he also warned against far-reaching consequences of this action. For example, he worried that "criminals might use this precedent in order to extend their litigation indefinitely. For the average Joe, this is a pretty attractive form of life extension." "Imagine," he said, "if not even executions put an end to death row appeals." At the close of the news conference, the Florida Attorney General said that if Ms. Schiavo failed to comply with the subpoena, he would try to reconstruct her memories through stem cell technology and enter them into evidence. He said Ms. Schiavo’s parents have offered a lock of Terry’s hair for this use. Testimony from biologically reconstructed memory has not, however, been allowed in any U.S. court to date, although legislation in favor of its use is pending in California. Speaking on the condition of anonymity, an aide to Governor Arnold Schwarzenegger said that the former actor’s experience in the 1990 movie, Total Recall, gave him considerable expertise in biological memory construction and that he will sign the legislation if it reaches his desk.
Frozen Embryo Adoption and the United States Government
Kimberly Amoroso Mount Sinai School of Medicine In 2003, the Rand Institute and the Society of Assisted Reproductive Technology (SART) concluded that there were approximately 400,000 frozen embryos stored in fertility centers throughout the United States (Hoffman et. al, 2003). According to this survey, a majority of the frozen embryos would be used for future pregnancy attempts by genetic parents. However, many will remain frozen, causing an ethical and financial dilemma for patients and fertility physicians. Many couples feel conflicted about the disposition of remaining embryos after they have completed their families. Embryos remain frozen at fertility centers accompanied by high emotional, ethical, and financial costs. Some couples will even abandon embryos in an attempt to avoid decision making about disposition. One might think that this is particularly a problem for Christian couples. Many Christians believe embryos are human life and, therefore, oppose their destruction. Couples of other religious and nonreligious backgrounds may not believe that embryos are children, but, nonetheless, many do believe that embryos hold special value. This makes it difficult for couples to decide about disposition. Additionally, the experience of infertility treatment is psychologically challenging for many couples, and decisions about the disposition of excess embryos can recall that experience and cause the powerful related emotions to resurface. Why Are There Remaining Embryos? Although reproductive technology improves every day, young women who utilize in vitro fertilization (IVF) usually have less than a fifty percent chance of achieving a pregnancy from each attempt, and for older women the statistics are far worse (CDC/SART, 2002). To surmount poor statistics, fertility physicians use stimulation medications to encourage a woman’s ovaries to produce multiple eggs to be fertilized. The hope is that several embryos will be created, giving the couple an increased chance to achieve a pregnancy. Multiple pregnancies are a concern, so usually only two to three embryos are transferred back into the woman’s uterus. Remaining good-quality embryos may be frozen for future use. Additionally, it is difficult for physicians to predict how many eggs will be produced from a stimulation cycle. Each woman’s response to the medication is different, and there is also variability for the same woman from cycle to cycle. Another significant factor is that many couples prefer to have embryos frozen because of the significant physical, emotional, and financial cost of IVF treatment. If the couple is unsuccessful at achieving a pregnancy during their first attempt, or if they want additional children after a successful cycle, they do not have to bear the costs and stress of another IVF attempt when they have frozen excess embryos. Instead, they can utilize the frozen embryos from their initial IVF cycle. In this way, frozen embryos are an important asset for people who are using assisted reproduction technologies. It is only after their families have been completed that the remaining frozen embryos become a dilemma. Embryo Adoption Versus Embryo Donation Couples have several different options for the disposition of excess frozen embryo. Embryos can be allowed to thaw and degenerate, they can be donated to Institutional Review Board (IRB)-approved research, or they can be donated/released to other infertile couples for their use in reproduction. Most IVF centers will offer anonymous embryo donation for their patients. The genetic parents are screened, and the embryos are released to recipients who are also screened. The couples are never known to each other. Very few couples in the United States choose the anonymous embryo donation option (Hoffman et. al, 2003). It is unclear whether this is attributable to the additional time and testing that must be performed on the donating couple, or because couples are not comfortable with the idea of embryo donation. Some may be concerned about their children having full genetic siblings who will be unknown to them. Nightlight Christian Adoptions (NCA) may have been the first to use the term "embryo adoption" when it created Snowflakes, a nonprofit center for embryo adoption (Meckler, 2002 & Arekapudi, n.d.). Snowflakes coordinates the screening and matching of couples who have embryos to give with infertile couples. NCA hopes to "set a precedent…embryos need to be handled like any other child" (Foubister, 2002). Embryo adoption programs differ from embryo donation programs in that they adhere closely to the tenets of traditional adoption. They require home studies, and families often meet and approve of one another. Snowflakes has strict criteria that it expects its recipient couples to follow, including requiring that couples do not reduce multiple pregnancies and that follow-up home studies are done following the birth of any babies. It is questionable whether Snowflakes would have any legal recourse against couples who didn’t adhere to these policies since there is no legislation regulating or recognizing embryo adoption. Additionally, in many states, the woman who delivers is considered the birth mother and listed on the birth certificate regardless of the genetics involved. In 2002, President George W. Bush passed legislation allowing programs like Snowflakes to receive government funding to promote their embryo adoption programs (Office of the Press Secretary, 2005). Currently, government grants of $1 million per year are allocated for programs like Snowflakes, Embryos Alive, and National Embryo Donation Centers. At the same time, the American Society for Reproductive Medicine (ASRM) has been reluctant to apply for this grant money because of concerns regarding promoting one embryo disposition option over another (Meckler, 2002). On May 24, 2005, President Bush met with families that have "adopted children as embryos" to "reiterate his opposition to using taxpayer money to promote (stem cell) research that takes life" (Office of the Press Secretary, 2005). The president considers embryo adoption to be a "life-affirming alternative" (Office of the Press Secretary, 2005). Pro-Choicers Up in Arms Using the term "embryo adoption" has many pro-choicers concerned because it suggests equating an embryo with a child. Many of the websites of these adoption organizations outright say that embryos should be given the same rights as children, including placement into "safe and loving environments." Obviously, if eight cells need rights and protection, so do fetuses. If embryos are recognized as children, then all fetuses must be recognized as children. Proponents of choice feel that this type of language and federal support may challenge abortion rights (Vergara, 2002). Reportedly, for this reason, organizations like Planned Parenthood have sought to have the language of the grant changed from "embryo adoption" to "embryo donation" (Vergara, 2002). Proposed Legislation On May 25, 2004, the Food and Drug Administration released its proposed mandate for the regulation of tissue donation. Embryo donation falls under this mandate. The primary purpose of the mandate was to decrease infectious disease risk associated with tissue donation. Part of this regulation included a requirement that all tissue for donation (including embryos) would be tested for infectious diseases within seven days of its retrieval. This means that, in order for embryos to be eligible for donation (or adoption), within seven days from the time that the eggs are harvested and combined with sperm to create embryos they would have to be tested for infectious diseases. This requirement may seem important or harmless enough in the context of most donated tissue (e.g., for transplantation), but for embryo donation this proposed legislation posed serious problems. For example, it is impossible to accurately predict when eggs will be ready for retrieval. Each woman’s response to stimulation medication is different. The eggs are retrieved when they reach an appropriate size in the ovary. For some women, this could be after eight days of medication, or ten, twelve, or fourteen days. Toward the end of a woman’s IVF stimulation cycle, she is monitored every day by her physician to determine the day of egg retrieval. Targeting the seven-day window prior to egg retrieval is impossible. Applying the regulation to embryos would, therefore, require couples to have repeat testing at additional cost. Infectious disease testing post retrieval is also problematic because there is no room for laboratory error. If a specimen is lost or dropped, there is no time for repeat testing within the seven-day window. Many of the tests required may take longer than a week to yield results, so a specimen problem may not even be determined within the seven-day window. Falling outside of the window would make the embryos ineligible for subsequent donation. The second obstacle under this proposed mandate was that couples would need to know that they were interested in donating their embryos prior to completing their own pregnancy attempt. In vitro fertilization treatment is very stressful and an emotional roller coaster for many patients. Asking couples to think about whether they would want to donate embryos that have not even been created, or before their families have been completed, may constitute an undue burden. Couples who decided they wanted to donate after they completed their families would be left with no options for embryo donation. Thirdly, this additional testing, which, for many because of the timing uncertainties, would need to be repeated several times, would add costs to an already expensive procedure. In vitro fertilization centers would also bear additional costs by spending time and money tracking and monitoring to ensure that correct testing was performed within the appropriate timeframe. These new policies would have forced the destruction of more embryos and may have forced couples to dispose of their embryos in a way that was not acceptable to them. Additionally, more couples would choose to abandon embryos at IVF centers rather than deal with the decision to dispose of the embryos in a manner that is not satisfactory to them. This would leave IVF centers with the cost of storage, trying to locate and seek legal action against those who abandoned embryos, and force centers to make decisions about destroying embryos without authorization from patients. The proposed seven-day window was an arbitrary condition imposed by the FDA. Additionally, many states already have infectious disease regulations regarding gamete donation, and the ASRM has guidelines for screening gamete donors that include similar testing requirements. The New York State Department of Health previously had the strictest infectious disease testing window at thirty days prior to egg retrieval (AFA, 2005). This window has been effective in preventing infectious disease transmission from gamete donation (AFA, 2005). Reprieve Fortunately, after receiving pressure from the ASRM, the final rule published by the FDA on May 25, 2005, was amended, extending the testing window to thirty days. Additionally, there are special exemptions for embryos that can be donated even if the donor couple is not tested within this window as long as the recipients are properly informed. The ASRM was successful in highlighting that the government’s policies would significantly impact embryo donation (adoption) programs. But the purposed legislating was not without cost to the reproductive medicine industry, which has spent the past year rewriting policies and procedures to comply with the originally purposed mandate. Additionally, patients and advocacy groups, like the American Fertility Association and Resolve, have worked tirelessly to promote the rights of patients who want to fully exercise their options regarding the disposition of their embryos.
Conclusion The issue of frozen embryos has many religious, psychological, ethical, and financial problems associated with it. The government, in an effort to bolster its stem cell research stance and to appease the right-to-life movement, has given federal funding to embryo adoption centers. This alarms pro-choice advocates who fear the term "adoption" for cells. The government then proposed legislation without a careful examination of how this new legislation would conflict with their ideology. Surely, the FDA mandates, as they were originally written, would have severely impeded the efforts of embryo adoption organizations like Snowflakes. Embryos would not have been eligible for adoption when they did not have the proper infectious disease clearance. Additionally, many couples would have been faced with the highly charged decision of embryo disposition with limited choices available to them. This is a vivid example of the government pushing political agendas and proposing legislation without clearly understanding the scientific impact or even the impact on their own ideology.
References American Fertility Association. (February 2005). "Regulating Donation Options: The American Fertility Association raises concern over new FDA guidelines." Medical News Today. Retrieved July 8, 2005. Available at <http://www.medicalnewstoday.com>. Arekapudi S. (n.d). "Adopting the unborn," American Medical Association. Retrieved July 8, 2005. Available at <http://www.ama-assn.org/ama/pub/category/9153.html>. Caplan A. (June 2003). "The problem with ‘embryo adoption.’ Why is the government giving money to ‘Snowflakes?’" Retrieved July 8, 2005. Available at <http://www.msnbc.msn.com/id/3076556>. Christianity Today Editorial. (June 2003). "Souls on Ice," Christianity Today. Retrieved July 8, 2005. Available at <http://christianitytoday.com/ct/2003/007/31.28.html>. Foubister V. (November 2000). "Extra embryos: what is their future?" American Medical News. Retrieved July 8, 2005. Available at <http://www.amednews.com/2000/prsa1113>. Hoffman et al. (May 2003). "Cryopreserved Embryos in the United States and Their Availability for Research," Fertility and Sterility, 79 (5): 1063-9. Kahn J. P. (2002). "‘Adoption’ of frozen embryos a loaded term." Center for Bioethics and CNN Interactive. Retrieved July 8, 2004. Available at <http://archives.cnn.com/2002/HEALTH/09/17/ethics.matters/index.html>. Meckler L. (August 2002). "Bush administration distributing nearly $1 million to promote embryo adoption," Associated Press. Retrieved July 9, 2005. Available at <http://pqasb.pqarchiver.com/ap/598350431.html>. <http://www.nightlight.org/snowflakes Office of the Press Secretary, President George W. Bush (2005). Fact Sheet: Valuing Life through Embryo Adoption and Ethical Stem Cell Research. Retrieved July 8, 2005. Available at <http://www.whitehouse.gov/news/releases/2005/05/20050524-10.html>. U.S. Department of Health and Human Services. (2002). 2002 Assisted Reproductive Technology success rate. Center for Disease Control & Society of Reproductive Technology. U.S. Department of Health and Human Services. (May 2005). Human cells, tissues, and cellular and tissue based products; Donor screening and testing, and related labeling. (Food and Drug Administration, 21 CFR part 1271, Docket No. 1997N-0484T, pp. 29949-29952, Vol. 70, No. 100). Vergara J. (2002). "Federal grant promoting embryo adoption raises bioethics issues." Retrieved July 8, 2005. Available at <http://www.the-tidings.com/2002/0920/embryo.htm>. Weiss R. (May 2003). "400,000 Human Embryos in U.S.," Washington Post. Retrieved July 7, 2005. Available at <http://www.washingtonpost.com/ac2/wp-dyn/A27495-2003May7>.
Medical Investigations of Homicides of Prisoners of War in Iraq and Afghanistan
Steven H. Miles, M.D. Center for Bioethics, University of Minnesota
Introduction The publication of the photographs of the abuse of prisoners at Abu Ghraib has resulted in a widening circle of disclosures and official investigations of similar abuses in Iraq, Afghanistan, and at Guantanamo Bay. There are reports that some medical personnel neglected detainees’ medical needs and collaborated with coercive interrogations.1,2 Some physicians, medics, nurses, and physician assistants failed to report abuses or injuries caused by the abuses that they witnessed. This article reviews another human rights issue—the medical evaluation of cases in which prisoners potentially died because of mistreatment or under suspicious circumstances.
Method This article is mainly based on government documents, including reports of U.S. Army and U.S. Navy criminal investigations, death certificates, autopsy reports, sworn statements, official correspondence between militar y personnel, and U.S. Department of Defense policies. To a lesser degree, it cites reports by human rights organizations and well-sourced media reports. Most of the events discussed in this article occurred in Iraq where the United States government accepts the application of the Geneva Convention’s "Geneva Convention Relative to the Protection of Civilian Persons in Time of War," of which relevant excerpts are given below.
Excerpts from the "Geneva Convention Relative to the Protection of Civilian Persons in Time of War" (1949) Article 129: Deaths of internees shall be certified in every case by a doctor, and a death certificate shall be made out, showing the causes of death and the conditions under which it occurred. An official record of the death, duly registered, shall be drawn up in accordance with the procedure relating thereto in force in the territory where the place of internment is situated, and a duly certified copy of such record shall be transmitted without delay to the Protecting Power as well as to the Central Agency referred to in Article 140. Article 130: The detaining authorities shall ensure that internees who die while interned are honourably buried, if possible according to the rites of the religion to which they belonged, and that their graves are respected, properly maintained, and marked in such a way that they can always be recognized. …As soon as circumstances permit...the Detaining Power shall forward lists of graves of deceased internees to the Powers on whom the deceased internees depended, through the Information Bureaux provided for in Article 136. Such lists shall include all particulars necessary for the identification of the deceased internees, as well as the exact location of their graves. Article 131: Every death or serious injury of an internee, caused or suspected to have been caused by a sentry, another internee or any other person, as well as any death the cause of which is unknown, shall be immediately followed by an official enquiry by the Detaining Power. A communication on this subject shall be sent immediately to the Protecting Power. The evidence of any witnesses shall be taken, and a report including such evidence shall be prepared and forwarded to the said Protecting power. If the enquiry indicates the guilt of one or more persons, the Detaining Power shall take all necessary steps to ensure the prosecution of the person or persons responsible. Article 136: Upon the outbreak of a conflict and in all cases of occupation, each of the Parties to the conflict shall establish an official Information Bureau responsible for receiving and transmitting information in respect of the protected persons who are in its power. Each of the Parties to the conflict shall, within the shortest possible period, give its Bureau information of any measure taken by it concerning any protected persons who are kept in custody for more than two weeks. …It shall...provide the aforesaid Bureau promptly with information concerning all...deaths. Article 138: The information received by the national Bureau and transmitted by it shall be of such a character as to make it possible to identify the protected person exactly and to advise his next of kin quickly. The information in respect of each person shall include at least his surname, first names, place and date of birth, nationality, last residence and distinguishing characteristics, the first name of the father and the maiden name of the mother, the date, place and nature of the action taken with regard to the individual, the address at which correspondence may be sent to him and the name and address of the person to be informed.
How Many Detainees Died of Homicide by Torture? In March 2005, the U.S. Armed Forces said that it suspected that twenty-six deaths were due to criminal homicides. However, it did not clarify whether these deaths occurred on the battlefield or in its prisons.3 The U.S. Department of Defense enumeration of "Substantiated" criminal homicides of detainees is certainly too low. Two main categories of homicidal detainee deaths likely went unsubstantiated (see below). There are cases in which a homicidal cause of death was not medically recognized and other cases in which the investigation of the death was insufficient to establish whether trauma was inflicted or accidental. Prisoners died of torture at Asadadad, Bagram, and Gardez in Afghanistan, and at Abu Ghraib, Camp Whitehorse, Basra, Mosul, Tikrit, Bucca, and an unidentified facility in Iraq (see Table ). These cases do not include deaths due to medical neglect, mortar attacks on prisons, or the shootings of rioting prisoners. Such cases will be considered after reviewing U.S. Department of Defense forensic medical procedures. Substantiated and Unsubstantiated Homicides of Detainees "Substantiated" criminal homicide by Armed Forces Criminal Investigation "Unsubstantiated" due to unrecognized homicidal cause of death (false natural deaths) Homicide by torture method (e.g., asphyxia that was not recognized as cause of death); Homicide by heart attack; and Homicide by medical neglect. "Unsubstantiated" due to obstructed/incomplete investigation: Obstructed investigation by local commander; Formally/informally unregistered detainees who are invisible to investigation; and Detainees who die by torture after rendition to torturing authorities in other nations. Medical Investigations of Prisoners’ Deaths The Armed Forces Institute of Pathology, Washington, D.C., is responsible for determining the causes of deaths of prisoners who died in U.S. detention facilities in Iraq, Afghanistan, and Guantanamo Bay. Ten years ago, the Institute created the Armed Forces Office of the Medical Examiner (AFME) to conduct autopsies of soldiers or civilians (including prisoners) who died while in the Armed Forces or under their jurisdiction. In 2002, budget cutbacks left the AFME with only two forensic pathologists; in 2004, it had thirteen. The AFME was not prepared to investigate the deaths of prisoners who may have died of torture. Its pathologists have published little on forensic pathology and are not known to have specialized expertise in investigating or documenting the injuries of persons who died as a result of torture.4,5 Death Certificates On May 21, 2004, a U.S. Department of Defense press conference addressed concerns about the deaths of prisoners in Iraq and Afghanistan.6 The Department released twenty-three death certificates that were incomplete and fell far short of standard medical practice or the requirements of the Geneva Convention (Figure 1). Thirteen of the death certificates do not note a date of birth, a vital statistic that would be helpful in evaluating the claim that many prisoners died of heart attacks. None record the next of kin or disposition of the remains. Many do not specify the location of death: four simply record "Iraq." The incompleteness of the death certificates and autopsy reports suggests that Armed Forces pathologists supervising prisoners’ autopsies did not have access to medical records, information about events preceding the deaths, or the circumstances under which the bodies were found to correlate with autopsy findings. Medical records were rarely created for Iraqi prisoners.7,8 If available, field investigators inconsistently noted their contents. Field investigators rarely documented any inquiry into confinement or interrogation events preceding the death. The death certificate sections entitled "Other Significant Conditions" and "Major Autopsy Findings" are blank. Given that half of the deaths were caused by physical abuse, it is notable that none of the persons dying of "natural causes" had any noteworthy signs of trauma. For example, Baha Mousa was arrested and died in August 2003. He was heard screaming. A person who saw the body saw lacerations, severe chest trauma, and a broken nose. The death certificate said that the cause of death was "cardio-respiratory arrest-asphyxia" of unknown cause and does not record any signs of trauma.9,10 The May 2004 death certificates appear to have been finalized for the press conference rather than completed during the routine work of the pathologists. Most bear preliminary signatures dated within a week of the death, but seventeen of twenty-two certificates for deaths occurring between 2002 and 2004 were finalized within nine days of the press conference. It appears that pathologists signed their batch of certificates at a single sitting at which the earlier and later signatures were affixed. Figure 2, for example, shows all five death certificates signed by Major Michael E. Smith. It appears that he used one pen and signature mark to simultaneously put a preliminary signature on certificates dated August 22, 23, and 25, 2003, and on October 23 and December 2, 2003, and then finalized those same certificates on May 12, 2004, with the same pen and hand stroke. A similar pattern is seen on death certificates signed by Colonel Eric Berg, Lieutenant Colonel Elizabeth Rouse, and Major Louis Finelli. James Caruso used the same signatures on his three death certificates and signed one for Jerry Hodge on May 13, 2004. Two prisoners inexplicably have two differing final death certificates. Dilawar was a prisoner who was murdered in Afghanistan. A retyped certificate adds his age, religion, and a comment on the circumstances of death. The date of death and the rank, title, and address of the name-censored pathologist and the final signature date are also all changed. Fahin Ali Gumaa, who died after being shot under unclear circumstances, has two death certificates—one finalized before the May 2004 press conference and another finalized in June. "Natural" Deaths It is probably inevitable that some prisoners who reportedly die of "natural causes" in truth died of homicide. However, the nature of Armed Forces’ medical investigations made this kind of error more likely. The AFME reported homicide as the cause of death in ten of the twenty-three death certificates released in May 2004. The death of Mohamed Taiq Zaid was initially attributed to "heat"; it is currently and belatedly being investigated as a possible homicide due to abusive exposure to the hot Iraqi climate and deprivation of water. Eight prisoners suffered "natural" deaths from heart attacks or atherosclerotic cardiovascular disease. Threats, beatings, fear, police interrogation, and arrests are known to cause "homicide by heart attack" or life-threatening heart failure. People with pre-existing heart disease, dehydration, hyperthermia, or exhaustion are especially susceptible.11-15 No forensic investigation of lethal "heart attacks" explores the possibility that these men died of stress-induced heart attacks. There are a number of reports of "heart attack" following harsh procedures in rounding up noncombatants in Iraq and Afghanistan. A typically sketchy U.S. Army report says, "Detainee Death during weekend combat…Army led raid this past weekend of a house in Iraq…an Iraqi who was detained and zip-locked (flexi-cuffed with plastic bands tying his wrists together) died while in custody. Preliminary information is that the detainee died from an apparent heart attack."16 Sher Mohammad Khan was picked up in Afghanistan in September 2004. Shortly thereafter, his bruised body was given to his family. Military officials told journalists that he had died of a heart attack within hours of being taken into custody. No investigation, autopsy, or death certificate is available.17 An account collected by the Christian Peacemaker Team also suggests a stress-induced heart attack. On December 21, 2003, soldiers burst into the home of Mehadi Al Jamal, a retired land surveyor who lost an election because he was not a member of Saddam Hussein’s Ba’ath Party. The seventy-year-old man had a hip replacement and walked with a cane. The Christian Peacemaker Team reports the son as saying: They pushed him like a criminal; they didn’t let him use his cane because his hands were tied. They handcuffed and put plastic hoods on my father, my uncle and my brother. I heard my father say, "I can’t breathe…" They pushed him into the vehicle. My father was in very bad condition at that time. He couldn’t talk because of the bag. …I could hear him gasping. …After that, my father stopped moving. …[An] officer told me my father died from a heart attack.18 Abed Al Razak was treated at the Abu Ghraib hospital in mid-2004 for an unspecified cardiac condition several days before he suddenly died. Criminal investigators carefully documented the attempted resuscitation. They noted that the body had "no apparent signs of extraordinary trauma or injury," but they didn’t record any inquiry into the nature of his interrogation or confinement. Thus, it is not known whether Mr. Razak was hooded with a sandbag that impaired his breathing or ability to exhale body heat. It is not known whether he was subject to prolonged stress positions, "fear up harsh," heat or cold exposure, sleep deprivation, shouted threats, continuous loud noise, sexual humiliation, or whether he saw a relative being beaten.19 Abdul Kareen Abdura Lafta (also known as Abu Malik Kenami) was admitted to Mosul prison on December 5, 2003, and died four days later.20,21 The short, stocky, forty-four-year-old man weighed 175 pounds. He was never given a medical examination, and there is no medical record. After interrogation, a sandbag was put over his head. When he tried to remove it, guards made him jump up and down for twenty minutes with his wrists tied in front of him and then twenty minutes more with his wrists bound behind his back with a plastic binder. The bound and head-bagged man was put to bed. He was restless and "jibbering in Arabic." The guards told him to be quiet. The next morning, he was found dead. The body had "bloodshot" eyes, lacerations on his wrists from the plastic ties, unexplained bruises on his abdomen, and a fresh, bruised laceration on the back of his head. U.S. Army investigators noted that the body did not have defensive bruises on the arms, an odd notation given that a man cannot raise bound arms in defense. No autopsy was performed. The death certificate lists the cause of death as unknown. It seems likely that Mr. Kenami died of positional asphyxia because of how he was restrained, hooded, and positioned. Positional asphyxia looks just like death by a natural heart attack except for those telltale conjunctival hemorrhages in his eyes.
Mishandled Forensic Medical Evidence The Office of Medical Examiners did not develop adequate procedures for preserving evidence for trial. The cooler containing the autopsy specimens of the murdered prisoner, Mr. Nagen Sadoon Hatab, exploded while sitting on a hot airport tarmac awaiting transport to trial. Pathologist Colonel Kathleen Ingwersen lost the broken neck hyoid (wishbone) bone showing that a soldier had strangled Mr. Hatab. The throat and rib cage were found on two different continents. As Dr. Ingwersen explained, "I should have paid closer attention…instead of relying on what turned out to be a miscommunication with my assistant." She suggested that she mishandled evidence because she was taking a drug to treat an allergic reaction to sandfly bites. The Armed Forces Institute of Pathology then obstructed the trial by refusing to allow independent DNA testing on the decedent’s rib cage that they had temporarily lost so that the prosecution could prove that it came from the decedent. The judge rebuked the Institute for its lack of cooperation and the broken chain of evidence, but the homicide charges were dropped against several defendants.22,23 The effect of the existence of two differing death certificates on the trial of those who murdered Dilawar remains to be seen.
Obstructed Death Investigations Several Defense Department practices facilitate obstructing the medical evaluation of a death so that investigators are less likely to substantiate that a homicide occurred. Local commanders aborted or delayed some death investigations. At Husaybah, an unnamed prisoner made more than twenty escape attempts in thirty-six hours before he reportedly threw himself out of a window and died of head trauma. It is difficult to understand—given the routine use of restraints on noncompliant prisoners—how such a prisoner could throw himself out of a window. The camp commander delayed reporting the death. A cursory and inconclusive investigation was conducted more than a month after the body had been buried.24 At Camp Cropper in 2003, an Iraq prison where many detainees were abused, two investigations were locally closed without autopsies.25 In one, a prisoner being treated for chest pain "fell out of bed and struck his head. A CAT scan showed intra cranial trauma and signs of prior head injuries." Another detainee was found "unresponsive by guards"; the body did not exhibit any signs of abuse or foul play. It is highly likely that investigators failed to substantiate homicides of ghost detainees. Mr. Hadi Abdul Hussain Hasson was a ghost detainee at Camp Bucca in Iraq. He was captured on an unknown date in the spring of 2003. U.S. Army investigators learned of his death on July 27, 2004. The investigator wryly notes, "Due to inadequate record keeping, this office could only estimate the Mr. Hasson possibly died between April-Sept 03." Mr. Hasson’s name was not found on the camp roster, military intelligence notes, medical records, or autopsy reports. The U.S. Army death homicide investigation was "unsubstantiated," but the investigation file contains a note, "Preliminary investigation has revealed the following detainees have alleged they were abused while in Coalition custody...Hussain Hasson."26 Nasrat Mohammad "Amer" Abed al-Latif disappeared after being taken into custody. The twenty-three-year-old Iraqi physics student was shot during a raid on his house by plain-clothed armed men who appeared to be U.S. nationals. His father and two brothers were detained for five days. Soldiers told the family that they had taken the injured Amer to a medical facility where he had died and that his body would be returned to them. His body and records of his care have disappeared.27 Jamal Naseer was picked up by U.S. Special Forces in Afghanistan in March 2003. He was held in a small, overcrowded detention cell at Gardez, a facility that did not register its prisoners and which was closed to Red Cross monitors. No medical personnel visited Naseer during the seventeen days that he was held and beaten. Men arrested with Mr. Naseer were beaten, kicked, whipped, slammed against the wall, and immersed in cold water. Their toenails either fell off or were torn off. Eyewitnesses report that Mr. Naseer suddenly fell to the ground, seized, and died. He was bleeding from his ear. The clinical history suggests that he died of a basilar skull fracture, an injury caused by severe head trauma with a hard object. His death was not mentioned in the Pentagon’s updated list of thirty-nine detainee deaths in July 2004. The Pentagon claims that it did not know of this case until a human rights organization, the Crimes of War Project, informed them of the matter. Six months after he died, the U.S. Army announced that it was opening an inquiry.28 "Rendition" is the practice of transporting prisoners to countries that practice torture for interrogation and imprisonment. It is against U.S. law and the Geneva Convention. There is no account of the fates of the several hundreds of persons who have been tortured during this practice.29 The United States bears responsibility for homicides of these prisoners. The U.S. Department of Defense Responds In 2004, in response to challenges to the veracity of death certificates and cases in which the reported cause of death had changed from "natural causes" to "homicide," Pentagon spokesperson Lieutenant Colonel Ellen Krenke asserted, "There is no evidence that final death certificates were falsified."30 Another official offered a similar view: "An initial reported cause of death is a field expedient process, often made by local medical personnel not fully qualified to certify cause of death. Autopsies corroborate or correct initial inaccuracies."31 In February 2005, Assistant Secretary of Defense for Health Affairs Dr. William Winkenwerder, M.D., reiterated that there is "no evidence" of falsification of detainee death reports.32 In 2005, the Defense Department released the Executive Summary of Vice Admiral Albert Church’s investigation of interrogation operations. It claims to have reviewed sixty-eight detainees’ deaths but neither lists these deaths nor states whether they included all the prisoners who died. Some of these deaths were by criminal and justified homicide; some were by natural causes. Without further comment, Admiral Church noted three cases (Mullah Habibullah, Dilawar, and Al-Jamadi) in which medical personnel may have attempted to misrepresent the circumstances of death, possibly in an effort to disguise detainee abuse.33
Afghanistan Detainee Torture Deaths

 

Name, Age

Location of Detainer/Date Event History

 

Name unknown17

Prior to September 2002 Murder conspiracy and obstruction of justice; case closed.
1 Mullah Habibullah (also known as Habib Ullah), ~3033,41 Bagram, December 4, 2002; U.S. Army Dr. Ingwerson did the autopsy on December 6-8, 2002, and promptly signed a death certificate finding homicide by "Pulmonary embolism due to blunt force injury to the legs." Defense Department issued false report of natural death and, when pressed by media, issued the death certificate in May 2004. Admiral Church identified this case as one in which medical personnel may have attempted to misrepresent the circumstances of death, possibly in an effort to disguise detainee abuse. Prosecution under way.
2 Dilawar, 2233,42 Bagram, December 10, 2002 Dr. Rouse did the autopsy on December 13, 2002; signed the preliminary copy on December 13, 2002; and did not finalize the death certificate until May 20, 2004, just before the Pentagon press conference. The autopsy attributed the death to a homicide by "Blunt force injuries to lower extremities complicating coronary artery disease." Defense Department issued false report of natural death and, when pressed by media, issued the death certificate in May 2004. The Defense Department has issued two different death certificates on this person. Admiral Church identified this case as one in which medical personnel may have attempted to misrepresent the circumstances of death, possibly in an attempt to disguise detainee abuse.
3 Jamal Naser28,43 Gardez, Special Forces, March 2003 Severely beaten unregistered detainee. On September 20, 2004, the U.S. Army confirmed that it was opening an inquiry into the death.
4 Abdul Wali28,44 Asadadad Base, Kunar, June 21, 2003 No autopsy performed. Cursory exam in the dark by Afghan officials. Former CIA contractor and special operations soldier charged with assault by beating Mr. Wali with a flashlight.
5 Abdul Wahid45 Bagram, November 6, 2003 Dr. Kathleen Ingwerson did the autopsy, signed, and finalized the death certificate on November 13, 2003. She concluded that he had died of a homicide from "Multiple blunt force injuries complicated by probably rhabdomyolysis [extensive crush injuries of the muscles]." The Pentagon released the death certificate in May 2004.
6 Sher Mohammad Khan17 September 24, 2004 Military officials told journalist that he had died of a heart attack within hours of being taken into custody. Autopsy not released. Family retrieved the bruised body.
Iraq Detainee Torture Deaths
1 Radi Nu’ma27,46 British forces, Basra, May 8, 2003 UK soldiers delivered a note to house, "Radi Nu’ma suffered a heart attack while we were asking him questions about his son. We took him to the hospital." Family were told at the hospital that no person of that name existed. Body found in morgue. RMP had delivered unidentified corpse on May 8 and told staff that cause of death was a heart attack but did not give any other historical or identifying information.
2 Nagen Sadoon Hatab47-50 U.S. Marines Camp Whitehorse, June 6, 2003 The base commander testified that a medic said that Hatab was "faking" or had a "mild heart attack" when seen six hours before death. Autopsy showed that he had been strangled, and the hyoid bone (wishbone) in his neck had been crushed when a solider dragged him by the throat. However, the case fell apart when the Armed Forces lost the pathology specimens (see text). The Defense Department says that the broken bones came from bouncing the body in a Humvee after death. Dr. Kathleen Ingwerson did the autopsy, signed, and finalized the death certificate on June 10, 2003.
3 Dilar Dababa25 Secret center, Baghdad, June 13, 2003 There are several accounts of his traumatic death. Dr. Elizabeth Rouse did an autopsy on June 17, 2003, and signed the death certificate as a homicide by "Closed head injury with a cortical brain contusion and subdural hematoma." However, she did not finalize the death certificate until May 14, 2004.
4 Baha Mousa10,50 Al Hakima, Basra, September 13, 2003 A twenty-eight-year-old prisoner was heard screaming and calling for assistance. Death certificate said that cause of death was "cardio-respiratory arrest-asphyxia"; cause unknown. Lacerations, broken ribs, and a broken nose were not noted on the death certificate (seen by ICRC, which remains classified), although such were noted by witnesses who saw the body.
5 Mohamed Taiq Zaid51 United States, Iraq, August 22, 2003 The sparsely documented investigation simply says that he was found lying on the ground at a detention center with heat stroke. Autopsy and death certificate: "Heat related. Accidental death." Dr. Michael Smith performed the autopsy and signed the death certificate on October 23, 2003, but did not finalize the death certificate until May 12, 2004. This case is now being challenged as a possible abuse by heat exposure without providing water and shelter.
6 Obeed Hethere Radad52 U.S. Army, Tikrit, September 11, 2003 On September 10, a guard had been yelling and acting aggressively toward Mr. Radad. On September 11, Mr. Radad was in an isolation cell with his hands in flexicuffs. He allegedly leaned through concertina wire and the guard shot him in the arm and abdomen with an M-16 rifle. The Army commander waited four days before notifying Army criminal investigations of the homicide. During this time, the base conducted a local hearing that charged a soldier with voluntary manslaughter and demoted and discharged him, thereby preempting the risk that he would face a more serious court martial.
7 Baha Dawud Al-Maliki52-55 British forces, Basra, September 14, 2003 Press reports and Amnesty International report signs of severe beating, and death certificate says asphyxia. Body is given to family. Investigation by the British is pending.
8 Kefah [Kifah] Taha54 British forces, Basra, September 17, 2003 Died after three days in British custody in Basra in September. Major James Ralph, ICU consultant at the British Military Field Hospital at Shaibah, wrote, "admitted to our facility at 22:40 hours on 16 September. It appears he was assaulted approximately 72 hours ago and sustained severe bruising to his upper abdomen, right side of chest, left forearms and left upper inner thigh…acute renal failure." Died. Investigation pending.
9 Mon Adel Al-Jamadi33,56,57 CIA/SEALS, Abu Ghraib, November 4, 2003 Ghost prisoner beaten to death. An Iraqi medical doctor working with the United States in Abu Ghraib confirmed Mr. Al-Jamadi’s death. The corpse was packed in ice overnight to try to alter the perceived time of death. The next day, a medic inserted an IV in the corpse’s arm and took it out of prison on a gurney as if he was ill. Other interrogators were told that he had died of a heart attack. Death certificate, based on autopsy: "blunt force injuries complicated by compromised respiration." Dr. Jerry Hodges did the autopsy November 9, 2003, and signed the death certificate the same day. However, he did not finalize the death certificate until May 13, 2004. Admiral Church identified this case as one in which medical personnel may have attempted to misrepresent the circumstances of death, possibly in an effort to disguise detainee abuse.
10 Abed Hamed Mowhoush58-61 CIA/U.S. Army, Al Qaim, November 26, 2003 Iraqi General Mowhoush was put headfirst into a sleeping bag while being rolled back to stomach; then an interrogator sat on him. On November 27, 2003, the military surgeon and the Pentagon claimed that he had died of natural causes. Dr. Michael Smith did an autopsy on December 2 and signed the death certificate as a homicidal death by asphyxia on December 2, 2003. However, he did not finalize the death certificate until May 12, 2004, as press inquiries were demanding a clearer account of what the Defense Department had been claiming was a natural death. Charges will be filed against the military intelligence officers.
11 Jaleel Abdul62,63 Al Asad, Fort Rifles, January 9, 2004 James Caruso filled out the death certificate as a homicide from "Blunt force injuries and homicide" on January 11, 2004, and finalized it on May 13, 2004. Soldiers being invesitgated.
12 Fashad Mohamed64 US SEALS, Mosul, April 5, 2004 Beaten by SEAL TEAM 7, interrogated, and allowed to sleep and did not wake up. Autopsy and death certificate by Dr. Elizabeth Rouse. She signed it as results "Pending" on April 26. On May 14, she signed a final copy with no further revisions.
CIA = Central Intelligence Agency; ICRC = International Committee of the Red Cross; ICU = intensive care unit; RMP = Royal Military Police
Discussion The Armed Forces Institute of Pathology bears primar y responsibility for the inadequate investigation of detainees’ deaths. There is no evidence that its staff properly and forcefully asserted the need for field commanders to follow Defense Department policies for reporting prisoners’ deaths for investigation. In June 2004, in the wake of public concern about unreported deaths of prisoners under torture, U.S. Secretary of Defense Donald Rumsfeld sent a memo to field commanders reiterating U.S. Department of Defense policies for reporting and investigating prisoner deaths.34 The Institute’s death certificates failed to comply with U.S. Army and Geneva Convention obligations. In civilian practice, when a physician does not know the cause of death, or where the death is under investigation, the proper procedure is to write "pending investigation" or similar phrasing on the death certificate rather than enter a misleading or exculpatory cause. U.S. Army regulations dictate a similar standard: "When the cause of death is undetermined, the medical officer will make a statement to that effect. When the cause of death is finally determined, a supplemental report will be made."35 Delayed death certificates have harmful consequences. They hamper investigators who use their findings to question witnesses while their memories are fresh. The contorted construction of "final death certificates" does not comport with Defense Department policy and allowed Defense Department spokespeople to knowingly announce that deaths were due to natural causes, an impression that Armed Forces’ pathologists who knew better did not challenge. For example, Pentagon officials claimed that Iraqi General Abed Hamed Mowhoush died of natural causes. Reporters learned that he had been beaten, stuffed headfirst into a sleeping bag, and sat on until he died. A paramedic could not resuscitate him; a military surgeon declared death by natural causes. Six months after his death, the U.S. Army released a death certificate and reported that he had died of homicide. A similar sequence of an incorrect Defense Department report of "natural deaths" was followed by late-arriving death certificates finding that "homicide" occurred in the cases of Dilawar and Habibullah. Delayed death certificates make it difficult to create the Geneva-mandated registries of decedents so that families can be notified and bodies claimed for burial. For example, Mr. Al Jamadi died November 4, 2003; his death certificate was finalized on May 13, 2004, as his body lay unclaimed in the Baghdad Morgue.36 For want of a death certificate, relatives can be unable to get death benefits, seek redress, or have the closure of learning how and when a loved one died. The AFME failed to fulfill its own policy and its Geneva obligation to ensure that death investigations could be used for sentinel public health research to identify torture as a pattern of preventable death.37 This failure was of critical importance between 2002, when human rights organizations began complaining of prisoner abuse, and 2004, when the Abu Ghraib photographs became public. By failing to report statistics on deaths by torture or signs of abusive injuries, it failed to perform its duty to issue an authoritative early warning that something was seriously wrong in the prisons. The failures of the Armed Forces Institute of Pathology were amplified by other administrative, investigatory, and prosecutorial failures by the U.S. Department of Defense and Central Intelligence Agency (CIA). The U.S. Department of Defense has not provided a public accounting of the names, locations, circumstances, and numbers of prisoners who died by abuse or natural causes during arrest, transport to prisons, or imprisonment. It has failed to allow an independent review of autopsy photographs, particularly of the exterior of the bodies, which may show trauma that went unnoted. Allowing base commanders to abort or delay the investigations of prisoners’ deaths made it less likely that investigators would be able to substantiate that a criminal homicide had occurred. The failure to create prisoners’ internment records containing demographic, medical, and family information, and the failure to investigate the interrogation procedures deprived pathologists of the information that they needed for assigning a cause of death. The unexamined deaths of ghost detainees and of those who were sent to other torturing nations for interrogation are not counted, and it is unlikely that those responsible will ever be held accountable. Even when investigators found a criminal homicide, the U.S. Department of Defense was reluctant to prosecute thoseinvolved, or who were aware of the abuse. A soldier who shot a prisoner to death was not prosecuted because he was not informed about the rules for using force against prisoners.38 At Camp Bucca in September 2003, an International Committee of the Red Cross monitor saw a guard shoot a prisoner in the chest. The monitor said, "The shooting showed a clear disregard for human life and security of the persons deprived of their liberty."9 The U.S. Army concluded that the shooting was justifiable. Escaping, nonthreatening detainees were shot on other occasions.39 The base commander at Tikrit prison used an administrative procedure to preempt the prosecution of the soldier who killed Obeed Hethere Radad (see Table ). Most of the soldiers prosecuted for criminal homicides of prisoners received nonjudicial punishments, such as a reduction in rank, and the record of charges, punishments, and even the name of the victim are sealed.3 War conspires against forensic medicine. Autopsy facilities are inadequate and often far removed from prisons. There is often a low priority for employing military resources for forensic investigations. However, a great deal of material was available to the Armed Forces Institute of Pathology to assist its work. The United Nations and World Medical Association endorse the Manual on Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. It says that physicians evaluating corpses that may have been tortured must be trained to detect and document signs of torture. It specifies that corpses should be examined for signs of beatings, thermal and chemical burns, visible and invisible fractures, and signs of tight ligaments around the penis or extremities, suffocation, brain damage, suspension tears to ligaments or muscles or nerves, and anal or vaginal penetration. Each of these kinds of abuses has been reported in Armed Forces detention centers. That Manual, called the "Istanbul Protocol," further states, "Forensic doctors should not falsify their reports but should provide impartial evidence including making clear in their reports any evidence of maltreatment."40,41 The failures of the Armed Forces Institute of Pathology have had diverse adverse consequences. A death monitoring system, which might have led to earlier awareness and prevention of homicides and abuse caused by torture, was never operational. Mishandled evidence and incomplete evaluations allowed alleged perpetrators of lethal torture to go unprosecuted. The failure to integrate the completion of death certificates into a Geneva-mandated system for notifying relatives of deaths compounded the grief, anger, and uncertainty of families. Bodies were administratively buried rather than being interred by relatives with proper ceremonies in the family’s chosen place of interment. Our national reputation and interests were harmed by these failures.
Endnotes Citations to government documents have been facilitated by the anthology: The Torture Papers: The Road to Abu Ghraib, edited by Greenberg KJ and Dratel JL. New York: Cambridge University Press, 2005. Its pagination will be used whenever possible. Citations to government documents that are not in The Torture Papers pose unique bibliographic challenges. Subject fields, authors, recipients, and dates have often been redacted. The documents are neither catalogued nor indexed. Many, but not all, have page stamps with several different prefixes (no prefix, DODDOACID, or DOD). Accordingly, the letterhead name of the agency, date, and pagination are the best available citations at this time. Media and Defense Department documents have been posted and taken down; therefore, documents are not cited by the original URLs from which they were downloaded. The ACLU and Center for Public Integrity maintain repositories of government documents at http:// www.aclu.org/tortureFOIA and http://www.publicintegrity.org/ report.aspx?aid=396&sid=100. For brevity, all dates are given as month/day/year.
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