Berkley Center

Impact on the Rule of Law

One aspect of the torture and detention program at Guantánamo Bay has been that the role of law has enabled and justified the use of torture by U.S. personnel [1]. Distorting law in order to provide legal cover for torture is one of the most serious affronts to the rule of law violations. Legal violations by the government tear at the fabric of a rule of law society in myriad ways. 

First, governmental law-breaking damages the trust people place in their political leaders. When political power is wielded according to personal interests or private ideology, rather than according to publicly available rules and principles, the public comes to expect corruption, and they no longer trust that political leaders will act in the interests of the nation. 

Second, and connected with the first, governmental law-breaking produces a perceived loss of legitimacy: If government actors violate the law, the justification for the state’s monopoly on power is weakened. 

Third, the rule of law cannot survive in a society in which the rule of law is violated in any significant respect, with the result that citizens feel entitled to violate the law as well. Rather than perceive adherence to the law as mandatory, they come to perceive the law as merely “the advantage of the stronger,” to quote the sophist Thrasymachus in dialogue with Socrates on the nature of justice [2].

Ethical and Moral Responsibility of Health Care Providers

Psychiatrists, other mental health professionals, and physicians have been drawn into the epicenter of the war on terrorism particularly in confronting torture and abuse. Politics and public sentiment have contributed to a corruption of the ethics principles of the medical professions.

James E. Mitchell, Ph.D., one of the psychologists and architects of the program of enhanced interrogation, testified at open hearings in Guantánamo in January 2020. Mitchell justified his role in inflicting waterboarding, walling, and a host of other cruel and harmful tactics on the detainees in support of the CIA. Mitchell testified that a board-certified physician was in the room when he was waterboarding the detainees. The physicians’ role had been to "carefully monitor" the waterboarding, keep the subjects "safe," and revive the men subjected to these life-threatening acts if needed. He testified that the physicians did not object to inflicting the injuries of waterboarding, walling, sleep deprivation, painful shackling, and the other tactics. That medical monitoring of interrogation provides any measure of safety is dubious, since the presence of health professionals may serve to legitimate coercive interrogation rather than restrict it. The presence of physicians violated the fundamental principle of medical ethics, "first, do no harm."

Mitchell reviewed the concepts of "moral disengagement" as developed by Albert Bandura, Ph.D. [3]. He pointedly accused the 9/11 defendants of reprehensible behavior and opined that they demonstrated critical elements of moral justification, euphemistic labeling, displacement of responsibility, and dehumanization. His logic is convoluted and self-serving. The perpetrators of torture and cruel, inhuman, and degrading treatment asserted moral justification for their behavior, dehumanized their subjects, and displaced responsibility on to them. "Radical jihadist" has become a euphemistic label and a catch-all term to rationalize the global war on terror. 

'Radical jihadist' has become a euphemistic label and a catch-all term to rationalize the global war on terror.

Mitchell and his colleagues indulged in the very same psychological maneuvers as their victims to justify their enhanced interrogation practices. He did not see the irony, boldly asserting that good, loyal Americans had to go to the dark side to protect the country, and even teared up in sharing with the court the burden he and his colleagues endured. 

Authorizing enhanced interrogation techniques pushed the country down a slippery slope. No actors linked to torture and related policies have been held accountable or removed from positions of responsibility and authority. The doctors and health care providers on the front lines risked being fired or sidelined for not following orders, or had to search for ingenious ways to object, such as exercising their rights as a whistleblower. As recent events have shown, even the whistleblower provision in federal law may not protect the reporting individual from retribution. That was unfair, and doctors and psychiatrists deserved the protection of their professional organizations to follow time-honored ethics principles.

Failure of the Military Commissions

The recent hearings at Guantánamo brought to light even more damage caused by the interrogation techniques that amounted to torture, namely, the possibility that key statements made by the detainees will never be able to be used during their trials. The trial for the mastermind of 9/11 and his co-defendants has been delayed and may not begin for many years, now more than 20 years after the attacks. It is distressing that in its War on Terror, the U.S. government used techniques that might preclude the families of the victims, and all Americans, from witnessing justice. In the end, it appears that our own moral disengagement may prevent us from utilizing the key accountability mechanism of a system dedicated to the rule of law, the courts. 

1. It is noteworthy that there was never an investigation or inquiry conducted by the U.S. Senate Judiciary Committee—and that such a report would still be possible.
2. Plato, The Republic, Book I.
3. Albert Bandura, Social Foundations of Thought and Action: A Social Cognitive Theory (Englewood Cliffs, NJ: Prentice Hall, 1986).

Editor’s Note: The first section of this article is adapted from Claire Finkelstein and Steven N. Xenakis, “Repairing the Damage from Illegal Acts of State: The Costs of Failed Accountability in the U.S.” in Interrogation and Torture: Integrating Efficacy with Law and Morality, ed. Steven K. Barela et al. (Oxford University Press, 2020), 493–517. 

The second section of this article is adapted from Steven N. Xenakis, “More on ‘The Role and Responsibilities of Psychiatry in 21st Century Warfare,’” Journal of the American Academy of Psychiatry and the Law 48, no. 3 (September 2020): 290–292.