What is too much pain?
This is the question that Bush administration lawyers answered when they legalized now-infamous interrogation techniques.
As a former federal counterterrorism official who served through 9-11, the anthrax mailings, and the on-set of the wars in Afghanistan and Iraq, I followed the recent release of Justice Department interrogation memos with interest.
Despite numerous readings I still can't understand them. How could these memos guide interrogators? As a physician, I found statements that defied reason. Experiences with patients contradict statements in the memos.
As such, the memos are a violation of the public trust and warrant investigation. The public deserves a full account of their production on which to render judgment. Either a courtroom or Congress will do.
Now in the public domain are two memos from Justice's Office of Legal Counsel dated Aug. 1, 2002, on the subject of interrogation practices, authored by John Yoo and signed by Jay Bybee. One was written for White House counsel Alberto Gonzales, the other for the Central Intelligence Agency.
In the first, Yoo legalized harsh interrogation practices by stating that they fell short of a definition of severe pain and therefore were not torture:
"Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."
This is a perplexing statement.
Specific symptoms are associated with the failure of individual organs such as heart, kidney, or lung. But pain is not prominent among any of them.
For example, someone with end-stage lung disease has the terrifying sensation that he cannot get enough air. In the final hours, the doctor sees the patient sweat. His face turns from deep red to blue. He leans forward and grasps the rails of the hospital bed so hard his knuckles turn white. He is intensely anxious and knows he is about to die. At what point in the approximation of this experience should the interrogator decide it's time to stop?
Maybe Mr. Yoo meant to equate the physical pain of torture with the pain of an injury serious enough to result in organ failure.
What do such injuries look like?
Someone who jumps out of a four-story window sustains multiple broken bones. The fractured pelvis severs an artery that results in hemorrhage so massive that vital organs can't get enough blood and begin to fail. As liver and kidneys shut down, the doctors race to stabilize the patient to take her to the operating room to fix the fracture. But the rate of the bleeding outstrips their best efforts. The patient dies in the emergency room.
Would it be permissible for an interrogator to deliver a blow hard enough to cause a fracture that doesn't result in organ failure, impaired function, or death? Is it OK to break a finger? A jaw?
I've read Yoo's definition many times and still don't know what it means. I'm certain of one thing. With death, there is no pain at all.
His definition can't account for this medical fact any better than it can any other. I'm not convinced that Mr. Yoo meant to hurt people, so it must be that it didn't matter to him that he didn't make sense.
The memo to the CIA set limits on allowable waterboarding.
The volume of water poured on a saturated cloth covering the nose and mouth was:
"a cup or small watering can" such that "air flow is slightly restricted for 20 to 40 seconds." After "three or four breaths," the practice could be repeated for "up to 20 minutes."
These numbers suggest hard scientific data, reminiscent of what we learn in a clinical trial — a study that evaluates how well a drug works by comparing it to another drug or placebo.
Doctors know something about clinical trials, and if that's where these numbers come from, OLC statements beg a few questions. How were these numbers obtained? How many subjects experienced 40 seconds of waterboarding in order to select this duration of exposure? Were earlier dose-ranging studies performed at 10, 20, 60 seconds? What happens to a person exposed to more than 20 minutes of repeated waterboarding? To what technique was waterboarding compared in order for investigators to conclude that it was the most effective one? Was the endpoint information? Relevant information? Reliable relevant information? Reliable relevant information that prompted action?
The memo goes on:
" pain and suffering" is best understood as a single concept The waterboard, which inflicts no pain or actual harm whatsoever, does not, in our view, inflict "severe pain or suffering."
So if the goal is to force someone to give up information he otherwise wouldn't, how is the procedure performed such that the detainee will not suffer?
I'm not confident the Justice Department will answer these questions. Instead I'll offer an alternative route to understand pain and suffering that worked for me.
In medicine, there are scales to grade pain. Because of the risk of addiction to certain drugs, these grades are linked to specific therapies, reserving the most potent narcotics for the worst pain.
Several years ago, armed with such tools, I saw a patient with a headache. He was an iron worker, about 30-years-old, who came to the doctor straight from the job. He wore a soiled coverall and scuffed work boots. By the time we sat down, he'd filled out a questionnaire. When asked to grade his pain on a scale of one to ten, he had crossed off nine sad faces out of 10.
This worried me. Pain this severe could represent something really serious. I looked him over carefully. Of particular concern was something that could elevate the intracranial pressure, like a tumor. His physical exam was unremarkable. I ordered blood tests and a CT scan of the head, increased the dose of the medicine he was taking, and told him to come back in a week. The only noteworthy thing was that he seemed tired.
When he came back, his tests and scan were negative. The higher dose of medicine wasn't helping. He was starting to miss work. I was considering a more potent drug and wanted to get to know the patient a little better. We spent most of the second visit talking. I mentioned to him that I thought he looked tired. Yes, he acknowledged, he was. He had a little girl, three-years-old, that he looked after when he got off work. She was energetic. The patient shook his head and smiled when he said this. He supposed that running around after a small child could give anyone a headache. Yes, I agreed, it could. But I didnt think it was a good enough reason for such a severe headache. Was there anything else going on?
The patient thought this over and finally came up with an answer. Maybe. It was a while back, six months ago, that his wife had died. She'd had cancer for about a year. The patient's sister was helping him with his daughter, but he still couldn't get done what he had to. He had trouble sleeping. He missed his wife.
The study of pain permits quantification, which guides correlation between severity and treatment. Even with a set of criteria, a scale with a graphic depiction, a patient who dutifully equates his pain with a number of sad faces, we recognize suffering as something different. The best we can do is identify it, which is enough to guide any further action.
In her book The Dark Side, Jane Mayer described the Bush administration's efforts to legalize these interrogation techniques. One person stands out. Richard Armitage, deputy secretary of state, was quoted as having said, " 'If you were twisting yourself in knots because you're fearful that you may be avoiding some war crimes, then you're probably tripping too closely to the edge.' Waterboarding in particular, Armitage said, was so obviously torture, 'I'm ashamed we're even having this conversation.' "
ABOUT THE WRITER
Dr. Andrea Meyerhoff is a member of the faculty of Johns Hopkins School of Medicine and a consultant in biodefense and drug development. She served as FDA Director of Counterterrorism from 2001-03 and Pentagon Director of Medical WMD Defense from 2003-04.
McClatchy Newspapers did not subsidize the writing of this column; the opinions are those of the writer and do not necessarily represent the views of McClatchy Newspapers or its editors.