Blog: U.S. Health Professionals and Torture
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December 15, 2021
Posted by By David Hogan, Harvard Law School International Human Rights Clinic
This post originally appeared on humanitariandisarmament.org’s Disarmament Dialogue blog. Videos of the panelists are available there.
As states gathered in Geneva, Switzerland, for a major UN disarmament conference, a recent online event illuminated the cruel effects of incendiary weapons and the need for stronger international law. Incendiary weapons, which produce heat and fire through the chemical reaction of a flammable substance, cause horrific injuries and long-term physical, psychological, and socioeconomic suffering. Protocol III of the Convention on Conventional Weapons (CCW) regulates the use of these weapons, but two loopholes weaken its effectiveness.
The event was entitled, “Incendiary Weapons: The Humanitarian Call for Stronger Law,” and co-hosted by Human Rights Watch and Harvard Law School’s International Human Rights Clinic. It featured three panelists: Kim Phuc Phan Thi, survivor of a napalm attack in Vietnam in 1972; Dr. Rola Hallam, a British doctor who treated victims of an incendiary weapons attack in Syria; and Roos Boer, a researcher at PAX, a Dutch peace organization. Kim Phuc and Dr. Hallam detailed the grievous suffering caused by incendiary weapons and articulated their hopes for a more peaceful future, while Boer described financial institutions’ policies for divesting from incendiary weapons.
Moderator Bonnie Docherty, of Human Rights Watch and Harvard Law School’s International Human Rights Clinic, opened the event by explaining the shortcomings of existing law and what states should do to address them. First, Protocol III’s definition of incendiary weapons excludes most multipurpose weapons with incendiary effects, such as white phosphorus. Second, the protocol has weaker restrictions for ground-launched weapons than for airdropped ones, even though they have the same damaging effects. At the CCW’s Sixth Review Conference, underway in Geneva until December 17, 2021, CCW states parties should agree to set aside time to assess the adequacy of the protocol with an eye toward strengthening it.
Known around the world as “the girl in the picture,” Kim Phuc was immortalized at age 9 by a photograph that shows her screaming and running naked down a road in Trảng Bàng, Vietnam, after having her clothing burned off by napalm. Kim Phuc’s memories of June 8, 1972, include fleeing bombs and explosions of gasoline and screaming, “too hot,” as her skin was on fire. Her parents located her in a hospital morgue three days after the attack, and she was transferred to a burn clinic in Saigon. Every day a nurse placed her in a tub “filled with a surgical soft solution and warm water [that] made it easier to cut [her] bare skin off.” She remembers, “The pain was unbearable, and I just cried as a child. When I couldn’t bear, when I couldn’t stand it any longer, I just passed out.”
Although Kim Phuc ultimately survived and left the burn clinic 14 months later, she endured lasting physical and emotional scars. She recalls, “I didn’t feel pretty growing up. I was certain no boy would ever love me or marry me and that I would never have a normal life.” She dreamed of being a doctor and was accepted into medical school, but the Vietnamese government cut her off from her studies so that she could serve as a symbol for the state, making her feel like “a victim all over again.” This was a “very low point” in her life. Kim Phuc reports that even now, she still receives laser treatment for burns covering her arm, back, and neck. “With all the scars, [I] have no pores, cannot sweat, so I have diabetes, high blood pressure, high cholesterol, and gout.” She also still suffers from pain, nightmares, and trauma, and whenever she sees a gun, fear and memories of war and fire return.
While her suffering exemplifies the impacts of incendiary weapons, Kim Phuc expressed hope for the world. She later married, defected to Canada, and founded the Kim Foundation International, a non-profit that funds projects to help child victims of war around the world. She also travels the world as a UNESCO Goodwill Ambassador. She described the difficult but liberating task of forgiving those who caused her harm and credits her Christian faith with making that possible. Kim Phuc said that she “will forever bear the scar” of the napalm attack, but she articulated her dream that “one day, all people will live without fear in real peace, no fighting and no hostility.” She said: “I believe that peace, love, and forgiveness will always be more powerful than any kind of weapons.”Continue Reading…
December 7, 2021
New Voices against Incendiary Weapons: Healthcare Professionals, Burn Survivor Groups Demand Stronger Law
Posted by By Nick Fallah, JD’23, and David Hogan, JD ’22 Harvard Law School International Human Rights Clinic From the HUMANITARIAN DISARMAMENT website
Incendiary weapons, which produce heat and fire through the chemical reaction of a flammable substance, cause grievous injury and long-term suffering for civilians. Protocol III of the Convention on Conventional Weapons (CCW) prohibits and regulates certain uses of incendiary weapons, but it contains loopholes that have limited its effectiveness.
As CCW states parties prepare to discuss these weapons and Protocol III at the CCW’s Sixth Review Conference, scheduled for December 13-17, 2021, healthcare professionals and burn survivor organizations have an opportunity to add their voices, expertise, and moral authority to the debate. They should sign an open letter that calls on states to “recognize the unnecessary human cost of incendiary weapons and initiate a process to revisit and strengthen” Protocol III.
The open letter, signed to date by more than 36 individuals and organizations from 7 countries, seeks to bring the views of those who have a unique knowledge of burn injuries to the diplomatic table. According to the letter,
Those of us who are healthcare professionals, including burn specialists, understand the human impacts of such injuries and the challenges of treating them. . . . Those of us who are burn survivors or their family members have directly or indirectly experienced the effects of burn injuries and empathize with those who suffer the immediate and lifelong consequences of incendiary weapons.
As the letter explains, the harm that incendiary weapons inflict on people is nothing short of horrific. These weapons, including those with white phosphorous, can burn people to the bone or smolder inside the body. They frequently cause severe or even fatal burns over more than 15 percent, and often more than 50 percent, of a victim’s total body surface area. The pain to survivors is so great that they often must take the maximum dosage of painkilling medication, and the burns leave victims at severe risk of infection and death. A 2013 incendiary weapon attack on a school in Syria killed several students and wounded many more. The flames burned an 18-year-old student named Muhammad, covering over 85 percent of his body including half his face, neck, back, and both legs and feet. To relieve the suffering of another boy whose throat had been scorched, a doctor intubated and sedated him, although, as the doctor expected, he died within the hour.
The impacts of incendiary weapons can last a lifetime. Thick scars cause contractures, which restrict muscles and joints, impede mobility, and can stunt the growth of children. Severe pain can linger for decades, and survivors may also suffer from skin damage, excessive dryness, either hypersensitivity or loss of sensation, and a range of physical disabilities. The trauma of an attack as well as its long-term physical effects can cause lasting psychological harm, and a survivor’s injuries and scarring can make it difficult to reintegrate into society socially and economically. Long-term harm is exacerbated by the lack of specialist medical personnel in combat zones, and the lack of adequate equipment and resources even when specialists are available.
CCW Protocol III has failed to prevent this kind of harm to civilians at least in part because two loopholes weaken its prohibitions and regulations. First, the protocol’s definition of incendiary weapons excludes most multipurpose weapons with incendiary effects, such as white phosphorus. Second, the protocol has weaker restrictions for ground-launched weapons than for airdropped ones, even though they have the same damaging effects. CCW states parties should amend Protocol III to remove these loopholes and focus the law on the weapons’ effects rather than on their primary purpose or delivery mechanism. Doing so would create stronger international norms that could influence states parties and states not party alike.Continue Reading…
September 21, 2017
Friday, September 22, 2017
“In Pursuit of Accountability for Post-9/11 Torture: A Discussion with the Litigation Team of Salim v. Mitchell”
12:00- 1:00 p.m.
Lunch will be served
Please join us for a discussion with the litigation team behind Salim et al. v. Mitchell et al., the landmark case that sought to hold CIA-contracted psychologists Dr. Bruce Jessen and Dr. James Mitchell accountable for the post-9/11 torture program they devised. Hina Shamsi, director of the ACLU National Security Project, and Lawrence Lustberg, chair of the Criminal Defense division at Gibbons Law in Newark, NJ, will discuss the recently settled case with moderator Paul Hoffman, a civil and human rights attorney and fellow member of the trial team currently teaching at HLS. The ACLU filed the lawsuit under the Alien Tort Statute on behalf of three victims of the CIA’s program, Mohammed Ben Soud, Suleiman Salim, and Gul Rahman, who died as a result of the torture inflicted on him.
July 1, 2016
Moving On: Deborah Popowski to Be Executive Director of NYU’s Center for Human Rights and Global Justice
Today we have the mixed blessing of announcing that one of our favorite people is moving on: Deborah Popowski, JD ’08, Clinical Instructor and Lecturer on Law, is bringing her considerable talents to New York University (NYU) School of Law as Executive Director of its Center for Human Rights and Global Justice.
It comes as no surprise to us that she was chosen for this leadership role. For the past seven years, Deborah has proven herself to be a visionary inside the International Human Rights Clinic, carving out a critical niche for U.S.-based work. In her time here, she led clinical projects on issues ranging from protest and assembly rights to the right to heal for U.S. service members and Iraqis. She also created a clinical seminar, “Human Rights Advocacy and the United States,” with the Human Rights Program’s former executive director, Clinical Professor Jim Cavallaro.
In particular, Deborah distinguished herself in recent years as a national leader in the grassroots movement to hold U.S. health professionals accountable for torture in the national security sphere. Her approach was both innovative and in-depth: through professional misconduct complaints, legislative advocacy, media outreach and academic conferences, she worked with clients to highlight the actions of psychologists at Guantánamo.Continue Reading…
April 13, 2016
When Deborah Alejandra Popowski, J.D.’08, was just beginning her studies at Harvard Law School (HLS), she learned a powerful lesson about the value and import of the law.
An American attorney representing a Guantanamo detainee spoke at an HLS event. The lawyer told of her client, a Saudi citizen in his early 20s, and of the regimen of inhuman treatment that he endured at the hands of U.S. military forces. For Popowski, the lawyer’s testimony brought home the human dimension of torture.
“Everybody in law school was talking about concepts and the rule of law regarding torture,” Popowski said. “That was the first time that I had ever heard somebody talking about people.”
Ever since, she has tried to follow that example and tend the people.
Since 2009, when Popowski began working as a fellow at the HLS International Human Rights Clinic, she has advocated for torture survivors as part of a movement to seek accountability for U.S. torture through both state and international courts.
Popowski, who became an HLS clinical instructor in 2011, has focused on the role that psychologists played in the U.S. torture program authorized by the Bush administration and implemented as part of its “war on terror.”
As is widely known, psychologists helped design the CIA’s “enhanced interrogation techniques,” which included water-boarding, sleep deprivation, forced nudity, and religious and sexual humiliation of Muslim men and boys detained by U.S. intelligence and military agencies. Psychologists also participated in interrogations as advisers.
Popowski recalled an internal military report that documented an interrogation session in which a detainee was repeatedly slammed onto the floor and ended up spitting up blood, with a loose tooth, bruises, and rib pain.
“The psychiatrist who was present didn’t say, ‘You shouldn’t be slamming him at all.’ He recommended the slamming,” said Popowski. His “protection” of the man, she said, was to tell the interrogator to move chairs out of the way before slamming him again.
Examining the controversial participation of psychologists in the U.S. torture program, Popowski will take part in a panel on Wednesday with David Luban of Georgetown University Law Center.
“The official narrative was that psychologists were there to keep interrogations safe and ethical,” Popowski said. “But they were there not to protect detainees; they were there to calibrate harm.”
Widespread public criticism of the American Psychological Association (APA) for endorsing the U.S. program led the group last summer to prohibit its members from taking part in interrogations by military or intelligence services. Shortly afterward, the Pentagon announced the withdrawal of psychologists from Guantanamo Bay.
For Popowski, both decisions are reasons to celebrate because they represent a landmark in the movement for reform and prevention within the association, whose call is to heal and do no harm.
An independent report last year commissioned by the APA concluded that the association had colluded with the Department of Defense inappropriately by aligning its ethics policies with military directives to protect the role of psychologists during interrogations they had reason to know were abusive. According to Popowski, this collusion enabled torture and cruel, inhuman, or degrading treatment in violation of human rights and humanitarian law.
Although the report validated Popowski’s position, she still worries about what she calls the U.S. government’s unwillingness to hold accountable the military and civilian officials who were responsible for the program. She represented a group of Ohio residents — including psychologists, lawyers, a minister, and a veteran — who filed a complaint with that state’s licensing board against Dr. Larry James for his role in Guantanamo. Other advocates presented evidence relating to Dr. James and other psychologists, alleging their involvement in torture, to licensing boards in Texas, New York, Louisiana, and Alabama.
In no case did a state board bring formal charges. Popowski said they offered “opaque, implausible, or seemingly pretextual justifications for their decisions” and “seemed to turn a blind eye” to credible evidence. All this, she said, highlights the lack of accountability for those who designed and implemented policies condoning torture. So for Popowski, the struggle is not over.
In her HLS classes and clinic, Popowski strives to teach students the effects of the legal practice on people’s lives, an aspect that she believes is somewhat overlooked in law schools across the country. As part of the International Human Rights Clinic, she took students to Geneva, where they, along with Trudy Bond, a psychologist from Toledo, Ohio, presented the UN Committee Against Torture with the 2014 shadow report that they helped write. The committee concluded that the U.S. government should investigate senior officials, lawyers and other civilians responsible for their role in the program.
Students also participated in litigation and in other advocacy work that accompanied the legal action.
“We want lawyers and advocates who are compassionate and empathetic people,” she said. “They have to be able to understand the tremendous impact their policies, rules, and actions can have on people. It’s an ethical question students have to wrestle with — what responsibilities they have as lawyers.”
Popowski feels optimistic about the future.
A granddaughter of Holocaust survivors, Popowski was born in Argentina during a military dictatorship. She likes to tell her students that in 1999, when she was writing her bachelor’s thesis on collective memory in Argentina, prospects for justice in cases of torture and human rights violations committed by the military junta were dim. Nearly a decade later, when she came back to HLS, Argentina had become an example of accountability for crimes of torture and forced disappearance.
“That’s the way I like to think about this work,” she said. “You have to be ready to challenge your concept of what’s possible and have a long-term imagination.”
April 12, 2016
April 13, 2016
“American Torture and Institutional Corruption: Law, Society and the Power of Professional Complicity and Resistance”
12:00- 1:00 p.m.
Please join HLS Advocates for Human Rights for a panel discussion of a recent independent investigation that found collusion between the American Psychological Association and the U.S. government in relation to interrogation policies that enabled the torture of Muslims by American officials. Panelists Deborah Popowski, Clinical Instructor with the International Human Rights Clinic at Harvard Law School, and David Luban, Professor at Georgetown University Law Center, will discuss the findings of the so-called Hoffman report and its implications for psychologists and also for the legal profession.
Popowski has been working at the intersection of human rights and professional ethics in the context of U.S. counterterrorism law and policy for the past decade. Luban has written extensively on the role of professionals in the U.S. torture program; his most recent book, “Torture, Power, and Law,” won the American Publishers Association PROSE Award for excellence in philosophy.
Lunch will be provided. Sponsored by the Muslim Law Students Association, the National Security and Law Association, the Human Rights Program, and Students for Inclusion
October 29, 2015
Clinic Submits Report In Support Of Hearing On Rights Of People Affected By The CIA Rendition And Torture Program
Posted by Deborah Popowski
Last week, the International Human Rights Clinic submitted a report in support of an Inter-American Commission on Human Rights thematic hearing on the rights of people affected by the CIA rendition and torture program. The hearing was requested by the ACLU and the NYU Global Justice Clinic, who asked us to adapt our 2014 shadow report to the U.N. Committee Against Torture for this purpose.
Titled Denial of Justice: The United States’ Failure to Prosecute Senior Officials for Torture, the report documents how the Obama administration and other government entities are in violation of the law by shielding from criminal liability the senior officials, including lawyers, who were responsible for the post-9/11 U.S. torture program. It notes that the U.S. government has failed to heed calls by the Inter-American Commission and other human rights authorities to conduct an in-depth and independent investigation into all allegations of torture and ill-treatment and to prosecute and punish those responsible.
We submitted both the Inter-American Commission and the U.N. Committee reports as members of the advocacy group U.S. Advocates for Torture Prosecutions.
Thanks to Michelle Ha, JD ’16, Kelsey Jost-Creegan, JD ’17, and Marin Tollefson, JD ’17 for their work on the report, and to Fernando Delgado, Tyler Giannini, and original co-authors Ben Davis, Trudy Bond, and Curtis Doebbler, for their review.
August 24, 2015
Posted by Deborah Popowski
This post was originally published on Just Security
The image of torture in US popular culture is an intimate one: a government agent and a suspect in a dark cell, usually alone. But the reality of our state-sanctioned torture program is that it took a village, working in broad daylight, to pull it off.
This summer, all eyes are on the American Psychological Association, as they should be. An independent investigation commissioned by the APA found that the organization had, as David Luban describes here, engaged “in a decade of duplicity to permit its members to participate in abusive interrogations while seeming to forbid it.” The report, lead-authored by former prosecutor David Hoffman, tells a tale of wholesale corruption and cooptation. Among its explosive findings is that APA officials refused to act on ethics complaints against military and CIA psychologists so as to shield them from sanction.
But the APA was not the only institution asked to investigate these matters. State licensing boards in Ohio, New York, Texas, Louisiana, and Alabama also received credible, well-documented complaints against implicated psychologists, including many of the same subjects of the improperly dismissed APA complaints. As lawyer and advisor for Dr. Trudy Bond and other courageous complainants in many of these cases, I witnessed how the licensing boards, like the APA, stonewalled and refused to bring formal charges, offering opaque, implausible, or seemingly pretextual justifications for their decisions.
According to the Hoffman report, ethics director Stephen Behnke told investigators that the duty to protect the public fell not on the APA, but on the state licensing boards. The truth is that the responsibility is shared — and so is their failure.
Licensing boards are legally mandated to protect people from the unsafe practice of psychology. This includes patients, all people with whom psychologists work, and the broader public. Yet, presented with evidence that their licensees had participated in or enabled torture, these state boards seemed to turn a blind eye. To truly understand how a profession dedicated to healing came to sanction brutality, we need a full investigation into how and why these boards dismissed misconduct complaints against psychologists James Mitchell, John Leso, Larry James, and Diane Zierhoffer. Did the state boards handle these complaints properly and in good faith, or did they, like the APA, strain their reading of the law to reach conclusions that would not restrict the government’s interrogation program — even if it included torture and cruelty? To what extent did they rely on compromised APA ethics policies and the now-discredited officials responsible for them?Continue Reading…
August 11, 2015
Posted by Cara Solomon
Up today on the Just Security blog, Deborah Popowski gives her initial reflections on the substantive provisions of the APA’s new policy, adopted last Friday, to ban psychologists from national security interrogations. She writes, in part:
“It was a stunning about-face for the APA. Having spent the better part of the last eight years supporting the “dissident psychologists” in their battle against the organized profession, I had trouble believing my ears as the steady wave of yesses rolled through that Toronto conference room last week. It was as if we had stepped into an alternate reality.
I predict that ultimately, this resolution will be more powerful than its AMA and American Psychiatric Association counterparts precisely because it took years of dogged advocacy to achieve. The APA’s bad behavior was a mobilizing force for psychologists of conscience. The organization now faces a savvy group of reformers that understand its playbook and will keep pressing for enforcement. I look forward to seeing how they ride this wave of momentum.”
August 7, 2015
Posted by Deborah Popowski
The American Psychological Association Council of Representatives passed a resolution today that forbids psychologists from participating in national security interrogations and aligns its policies with international law. This is a watershed moment for the movement against U.S. torture, and we owe tremendous gratitude to our partners at the Coalition for an Ethical Psychology and the many others who brought about this remarkable turnaround from the APA.
BE IT FURTHER RESOLVED that, in keeping with Principle A (Beneficence and Nonmaleficence) of the Ethics Code to “take care to do no harm,” not conduct, supervise, be in the presence of, or otherwise assist any national security interrogations working on their behalf, nor advise on conditions of confinement insofar as these might facilitate such an interrogation enforcement interrogations or domestic detention settings where detainees are afforded all of the protections of the United States Constitution, including the 5th Amendment rights against self-incrimination (“Miranda” rights) and 6th Amendment rights to “effective assistance” of legal counsel.
BE IT FURTHER RESOLVED, that … APA shall send official correspondence to the appropriate officers of the U.S. government, including the President, Secretary of Defense, Attorney General, CIA Director, and Congress, to inform them that APA has adopted policy changes to expand its human rights protections to safeguard detainees in national security settings against torture and cruel, inhuman, or degrading treatment or punishment.
1) The first of these communications will be sent as soon as possible after this amended policy is passed, and will state – It is a violation of APA policy for psychologists to conduct, supervise, be in the presence of, or otherwise assist any individual national security interrogation, nor may a psychologist advise on conditions of confinement insofar as those might facilitate such an interrogation. Furthermore, based on current reports of the UN Committee Against Torture and the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, it is also a violation of APA policy for psychologists to work at the Guantánamo Bay detention facility, “black sites,” vessels in international waters, or sites where detainees are interrogated under foreign jurisdiction “unless they are working directly for the persons being detained or for an independent third party working to protect human rights” or providing treatment to military personnel. To protect these psychologists from the consequences of violating their obligations under the APA Ethics Code, APA requests that psychologists be withdrawn from any role in individual national security interrogations or conditions of confinement that might facilitate such an interrogation. Furthermore, APA requests that psychologists working at prohibited sites, as described above, be offered deployment elsewhere.
Stay tuned for more coverage next week.
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