Chapter 3: Supreme Court Dissents Invoke the Nuremberg Code: CIA and DOD Human Subjects Research Scandals
As we have seen, the development of federal legislation for government-sponsored research with human subjects arose in part because of institutional and governmental concern and public reaction to perceived abuses and failures by the government. Around the same time that the 1974 National Research Act was enacted, a scandal arose surrounding the discovery of secret Cold War chemical experiments conducted by the CIA and DOD. The review of these experiments led to the rediscovery of the previously secret 1953 Wilson memorandum and later to the first Supreme Court decision in which comment was made, in dissent, on the application of the Nuremberg Code to the conduct of the U.S. government.In December 1974, the New York Times reported that the CIA had conducted illegal domestic activities, including experiments on U.S. citizens, during the 1960s. That report prompted investigations by both Congress (in the form of the Church Committee) and a presidential commission (known as the Rockefeller Commission) into the domestic activities of the CIA, the FBI, and intelligence-related agencies of the military. In the summer of 1975, congressional hearings and the Rockefeller Commission report revealed to the public for the first time that the CIA and the DOD had conducted experiments on both cognizant and unwitting human subjects as part of an extensive program to influence and control human behavior through the use of psychoactive drugs (such as LSD and mescaline) and other chemical, biological, and psychological means. They also revealed that at least one subject had died after administration of LSD. Frank Olson, an Army scientist, was given LSD without his knowledge or consent in 1953 as part of a CIA experiment and apparently committed suicide a week later.[75] Subsequent reports would show that another person, Harold Blauer, a professional tennis player in New York City, died as a result of a secret Army experiment involving mescaline.[76]
The CIA program, known principally by the codename MKULTRA, began in 1950 and was motivated largely in response to alleged Soviet, Chinese, and North Korean uses of mind-control techniques on U.S. prisoners of war in Korea. Because most of the MKULTRA records were deliberately destroyed in 1973 by order of then-Director of Central Intelligence Richard Helms, it is impossible to have a complete understanding of the more than 150 individually funded research projects sponsored by MKULTRA and the related CIA programs.[77] Central Intelligence Agency documents suggest that radiation was part of the MKULTRA program and that the agency considered and explored uses of radiation for these purposes.[78] However, the documents that remain from MKULTRA, at least as currently brought to light, do not show that the CIA itself carried out any of these proposals on human subjects.
The congressional committee investigating the CIA research, chaired by Senator Frank Church, concluded that "[p]rior consent was obviously not obtained from any of the subjects."[79]'we have no answer to the moral issue.'" The committee noted that the "experiments sponsored by these researchers . . . call into question the decision by the agencies not to fix guidelines for experiments."[80] (Documents show that the CIA participated in at least two of the DOD committees whose discussions, in 1952, led up to the issuance of the Wilson memorandum.) Following the recommendations of the Church Committee, President Gerald Ford in 1976 issued the first Executive Order on Intelligence Activities, which, among other things, prohibited "experimentation with drugs on human subjects, except with the informed consent, in writing and witnessed by a disinterested party, of each such human subject" and in accordance with the guidelines issued by the National Commission.[81] Subsequent orders by Presidents Carter and Reagan expanded the directive to apply to any human experimentation.[82]
Following on the heels of the revelations about CIA experiments were similar stories about the Army. In response, in 1975 the secretary of the Army instructed the Army inspector general to conduct an investigation.[83] Among the findings of the inspector general was the existence of the then-still-classified 1953 Secretary of Defense Wilson memorandum. In response to the inspector general's investigation, the Wilson memorandum was declassified in August 1975. The inspector general also found that the requirements of the 1953 memorandum had, at least in regard to Army drug testing, been essentially followed as written. The Army used only "volunteers" for its drug-testing program, with one or two exceptions.[84] However, the inspector general concluded that the "volunteers were not fully informed, as required, prior to their participation; and the methods of procuring their services, in many cases, appeared not to have been in accord with the intent of Department of the Army policies governing use of volunteers in research."[85] The inspector general also noted that "the evidence clearly reflected that every possible medical consideration was observed by the professional investigators at the Medical Research Laboratories."[86] This conclusion, if accurate, is in striking contrast to what took place at the CIA.
The revelations about the CIA and the Army prompted a number of subjects or their survivors to file lawsuits against the federal government for conducting illegal experiments. Although the government aggressively, and sometimes successfully, sought to avoid legal liability, several plaintiffs did receive compensation through court order, out-of-court settlement, or acts of Congress. Previously, the CIA and the Army had actively, and successfully, sought to withhold incriminating information, even as they secretly provided compensation to the families.[87] One subject of Army drug experimentation, James Stanley, an Army sergeant, brought an important, albeit unsuccessful, suit. The government argued that Stanley was barred from suing it under a legal doctrine--known as the Feres doctrine, after a 1950 Supreme Court case, Feres v. United States--that prohibits members of the Armed Forces from suing the government for any harms that were inflicted "incident to service."[88]
In 1987, the Supreme Court affirmed this defense in a 5-4 decision that dismissed Stanley's case.[89] The majority argued that "a test for liability that depends on the extent to which particular suits would call into question military discipline and decision making would itself require judicial inquiry into, and hence intrusion upon, military matters."[90] In dissent, Justice William Brennan argued that the need to preserve military discipline should not protect the government from liability and punishment for serious violations of constitutional rights:
The medical trials at Nuremberg in 1947 deeply impressed upon the world that experimentation with unknowing human subjects is morally and legally unacceptable. The United States Military Tribunal established the Nuremberg Code as a standard against which to judge German scientists who experimented with human subjects. . . . [I]n defiance of this principle, military intelligence officials . . . began surreptitiously testing chemical and biological materials, including LSD.[91]
Justice Sandra Day O'Connor, writing a separate dissent, stated:
No judicially crafted rule should insulate from liability the involuntary and unknowing human experimentation alleged to have occurred in this case. Indeed, as Justice Brennan observes, the United States played an instrumental role in the criminal prosecution of Nazi officials who experimented with human subjects during the Second World War, and the standards that the Nuremberg Military Tribunals developed to judge the behavior of the defendants stated that the 'voluntary consent of the human subject is absolutely essential . . . to satisfy moral, ethical, and legal concepts.' If this principle is violated, the very least that society can do is to see that the victims are compensated, as best they can be, by the perpetrators.[92]
This is the only Supreme Court case to address the application of the Nuremberg Code to experimentation sponsored by the U.S. government.[93] And while the suit was unsuccessful, dissenting opinions put the Army--and by association the entire government--on notice that use of individuals without their consent is unacceptable. The limited application of the Nuremberg Code in U.S. courts does not detract from the power of the principles it espouses, especially in light of stories of failure to follow these principles that appeared in the media and professional literature during the 1960s and 1970s and the policies eventually adopted in the mid-1970s.
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