Human Rights and Health in 2009: An Interview with Leonard Rubenstein, JD
Interviewers: Hana Akselrod and Sujal Parikh
Editors: Hana Akselrod and Sujal Parikh
November 2009

 

Leonard S. Rubenstein, JD, is Visiting Scholar at the Johns Hopkins Bloomberg Center for Human Rights and Public Health. He spent the 2008-09 academic year as a Senior Fellow at the United States Institute of Peace, and for twelve years prior to that served as Executive Director and then President of Physicians for Human Rights, an organization that mobilizes the health professions to advance human rights. Prior to that he directed the Bazelon Center for Mental Health Law, which advocates for rights and services for people with mental disabilities. A graduate of Harvard Law School and Wesleyan University, Mr. Rubenstein has spent thirty years engaged in advocacy for human rights and health domestically and internationally and has expertise in human rights dimensions of U.S. national security policies and practices; development policy, particularly as related to health HIV/AIDS, health systems; human rights and armed conflict, including humanitarian intervention and accountability, gender, racial and ethnic inequality; and medical ethics and human rights. He has written extensively both for scholarly publications and in major media such as the New York Times, Washington Post, and Boston Globe.

Mr. Rubenstein is a member of the Council on Foreign Relations and the Committee on Scientific Freedom and Responsibility of the American Association for the Advancement of Science. He serves on the Governing Council of the American Public Health Association and the Board of Directors of the International Federation of Health and Human Rights Organizations. He has been a consultant to the Institute of Medicine of the National Academy of Sciences and served as an adjunct professor at Georgetown University Law School. He is the recipient of numerous awards, including the Congressional Minority Caucuses' Healthcare Hero Award; the United Nations Association of the National Capital Area's Louis B. Sohn Award; the Physicians Forum Edward K. Barsky Award; the National Mental Health Association's Mission Award; and the Political Asylum Representation Project's Outstanding Achievement Award.

HA: Can you give us a little background on your work directing PHR's campaign against torture during the last few years?

LR: PHR had been working internationally on the problems of torture and medical engagement in torture, going back probably at least 20 years. Then when the first reports that the U.S. was torturing detainees in its custody appeared around the beginning of 2003 - there were statements about interrogators "taking their gloves off" and other metaphors for torture - we started looking into the question and tried to find out everything we could about interrogation practices being used by the U.S. Of course at that time almost everything the U.S. was doing was hidden, but we filed Freedom of Information Act requests and sought information from other sources. But we didn't know the extent of the abuse until after the Abu Ghraib scandal broke in 2004, and from then on we became more intensively involved in investigations and advocacy.

HA: At the time that the Broken Laws, Broken Lives report came out in 2008, how did the Bush administration and the Congress respond to it?

LR: The report was released in 2008 and was our third report on US involvement in torture. The first was a report on psychological torture by the United States [Break Them Down] based largely on documents we received through the Freedom of Information Act. Our second report, co-written with Human Rights First [Leave No Marks], was an evaluation of the legality of coercive techniques that had been disclosed to date, analyzed by medical and legal criteria for torture. In the years before Broken Laws, Broken Lives, we had already been deeply engaged on the issue with the Bush Administration, Congress, the media, and the public. We had also started our Campaign Against Torture. For example, we worked hard to gain passage of the McCain Amendment in 2005, which bars any cruel or inhumane treatment, as well as torture, by all US agencies including the CIA. At the time we didn't know that the Bush administration was going to interpret that law, as it had with others, to permit the CIA to continue to engage in torture.

At the time we wrote Broken Laws, Broken Lives, there had already been some changes in practice and law. In fact, before Broken Laws, Broken Lives was released, the Defense Department had already abandoned a lot of the more draconian interrogation methods and issued a new interrogation field manual that repudiated most forms of torture. We wrote Broken Laws, Broken Lives because there was still a lot more to be done and we felt it important to get beyond abstractions about torture or discussions of ticking bombs and show what the U.S. actually did to men in its custody in Iraq, Afghanistan and Guantanamo Bay. We also thought - and I still do - that there is a lot more to be done to investigate these wrongs and hold perpetrators accountable. For example, we had previously sought a special investigation of the role of health professionals in torture, and we reiterated that demand after the report came out and again with the new administration. So far no investigation has taken place. We also believe that victims ought to be compensated in some way, and that understanding the truth of what was done to people enhance prospects for that outcome. A third objective was to establish a commission along the lines of the 9-11 commission, which has the power to subpoena documents and witnesses, so there would be a full investigation of torture. Broken Laws, Broken Lives gained wide attention in the media and sparked interest among members of Congress. We were pleased, of course, that on the first day of the Obama administration, the President signed an Executive Order banning the use of torture throughout the US armed forces, and the CIA and specifically banned the methods that had been used.

HA: Have you seen any progress toward more transparency of government practices around interrogation also?

LR: It is somewhat more transparent. There was a sea change when President Obama came to office. The first executive orders were very important in ending the US's practices of engaging in torture. He also released very important memos from the Justice Department and the CIA, which have exponentially increased our understanding of what the CIA was doing and how physicians became enablers of torture. To that extent the administration has brought some transparency. But it is also resisting or blocking other disclosures, such as photographs ordered released by a court, and resisting an independent commission, and so the goal of transparency and exposure still remains, and we would love to see the administration be more open.

HA: Some of the most disturbing aspects of what was happening was the involvement of health professionals in torture. What kind of responses have you gotten from the American Medical Association and the American Psychological Association?

LR: All these organizations have taken a position against torture. The AMA changed its ethical standards so that doctors are ethically prohibited from not only participating in torture but having any role in the interrogation of an individual, such as evaluating a detainee or planning, assisting, or monitoring the interrogation. The APA hasn't gone that far unfortunately - it still allows psychologists to participate in interrogation - but it has taken a strong position in condemning about 20 techniques of interrogation that amount to torture. What the medical organizations have not done is join actively in the fight for accountability, transparency, and redress, which is what I think they should do. They've taken some steps but there's much more they could do.

It is important to understand how deeply physicians became involved in justifying and rationalizing torture and how easily they were sucked into this vortex. It was the absence of awareness of human rights and their implications for practice, support systems, and any form of accountability for violations that facilitated complicity. If you look at the evidence of torture by the US, you see that over time, the more that the use of torture was revealed and criticized, the more doctors were brought in to approve methods and monitor interrogation en as a way of deflecting criticism by saying that doctors approved. The doctors were seduced into believing that they had a protective role for detainees, and lacking a grounding in human rights and a system of support to reinforce it, they convinced themselves that they were acting in accordance with ethical principles in their role as accomplices. The behavior shows the depth of the problem and how it needs to be addressed by the medical community

HA: Do you think that there are measures of accountability or transparency that could have prevented the abuses that did happen from happening the way they did?

LR: I think greater transparency and accountability, had the mechanisms been put in place, could have had a big impact. The difficulty here was that since torture was approved at the highest level of government - especially the White House - and the law itself was twisted in a way that permitted torture, many of the existing mechanisms of transparency and accountability were undermined. The Administration also did all it could to prevent the courts from hearing challenges to its actions. It shows that when the Vice President or President is involved in approving and hiding torture, it gets very difficult: it's a real challenge to the rule of law as well as to our values.

SP: What is the role of academic medicine in building peace and promoting human rights in general?

LR: I think academic medicine has a very important role to play. I'd like to focus on two specific roles. Number one is in medical education. Training in concepts of human rights and their relevance to medical practice are not considered an essential aspect of medical education. I think that's because to educators human rights seems non-essential to becoming a physician. What medical educators don't realize is that doctors often confront these issues whether in the emergency room, treating refugees, or immigrants, or in other situations where human rights issues arise, especially when there are pressures from people in authority to sacrifice a patient's human rights to serve some other (government) interest. Physicians are often unable to navigate those situations - which may explain why physicians became complicit in torture. Doctors are unprepared to face these difficult choices and to stand up to authority when they need to. Second, academic medicine can engage in research on the impact of human rights violations on health. They can illuminate how human rights violations impact health, drawing connections between forms of repression, displacement, discrimination, marginalization, and health. Research can reveal that health care can't be improved simply by building more clinics or having more health interventions, but by addressing the underlying social and political determinants of health as well. This research has started in the last generation, more in the last ten years, and medical journals are now starting to report on it, but a lot more can be done, both on the research and education side. Academic physicians can also be agents for the changes needed by using their voice and authority in support of a human rights approach to health.

SP: There is a series of essays recently published in Academic Medicine talking about what academic medicine could to promote peace building around the world. The authors of one article argued that it should be peculiar for health professional organizations to not oppose war, rather than the opposite. What's your view on making that a reality?

LR: Physicians as healers should be at the forefront of policies to preserve the health of their fellow human beings. Some have acted courageously in speaking out. But to get beyond just the few outspoken people, medicine as a profession has to see beyond a very narrow lens. Medical leaders sometimes see clinicians as being necessarily apolitical, and that getting involved in issues about war and peace is a political commitment - and of course it is. At the same time, to end the horrific consequences of war, the medical community needs to use its skills to reveal its impact and use its voice to speak out.

SP: Such as bearing witness?

LR: Bearing witness is one dimension, a very important dimension, as Doctors Without Borders has shown, but there are others as well, such as examining the health impacts of war, which is different than bearing witness. Bearing witness is about being on the scene and sharing the truth of what's happening with the world. Examining consequences is more on the analytical side. When we were involved in the campaign to ban landmines, we did a number of studies in Mozambique, in Cambodia, and elsewhere, showing what the medical consequences of landmines were to the population. That work helped lay the foundation for the International Campaign to Ban Landmines and ultimately a treaty that banned the weapons.

HA: Do you feel that from your work with PHR and student chapters of PHR, medical students graduating and entering the profession today are more equipped to deal with these issues than they were a generation of doctors ago?

LR: Unfortunately I don't think they are any more equipped than in the past. There are some medical students, and they are a growing number, who are deeply interested in the connection between health and human rights and the connection between medical practice and human rights, so that's a real advance. Some medical schools discuss racial disparities in health, including disparities in quality of care that may be attributable to physician behavior. But in general, I don't think young physicians are any better equipped to deal with the human rights questions that arise in daily medical practice. So I think a lot more has to be done.

SP: What are the challenges facing the health and human rights movement moving forward?

LR: The health and human rights movement has come a long way, even compared to just a decade ago. More people understand the connections between health status and human rights violations, such as how devaluation of women leads to very high rates of death in childbirth in so many countries of the world. The field now has listservs, journals, conferences, and studies, a UN Special Rapporteur on the Right to Health, and social movements associated with it. But there remain a number of barriers, especially for the medical profession's involvement. One is the sense that human rights is an extracurricular activity, and not essential to practice. There are deeper issues too, such as institutional conservatism in the profession, which has been the hallmark of medical professionalism for a long time. Under the traditional view, the role of the physician is viewed quite narrowly with no notion that though there is some need to pay attention to social conditions that affect health.

SP: This is at odds with the kind of model that is often mentioned in medical schools - like the works of Rudolph Virchow and Jim Kim who argue that we should be treating the social condition of our patients, not just their medical condition.

LR: Well, I think there is a strand of such thinking within the medical community that is powerful and quite long-standing. Physicians have also been active in movements against nuclear weapons, to ban landmines, to expand access to health services in the developing world, and to bring about a more equitable health system in the United States. But for many people, this model hasn't gone much beyond the rhetorical, in terms of how people are trained and how they are equipped to deal with the kinds of conflicts that they will experience and the kinds of situations they will face.

SP: What sort of training would better equip medical trainees and physicians, beyond a couple of hours of lectures? Are there other models that we should be looking at to impart the skills, the critical thinking, and the kind of insight that would help physicians be better at this?

LR: Though I'm not an expert in education, I think that having some exposure to real situations where human rights are at stake would have enormous power, and to actually discuss cases in the way students discuss cases in clinical medicine. What would you do, how would you address this problem, what kind of support would you need? And actually the question of support is a very important one. It would be misleading to think that just improving education is going to be empowering. There has to be an environment in any profession to encourage and support people who act to advance human rights, and those structures of support are as important as a formal education.

HA: From a human rights perspective, what are your thoughts on the current moment in US politics around healthcare reform and the conversation that's happening in the public sphere about what the system should look like and what structures it should contain?

LR: I think we're paying the price, as a society, of not having a robust and deep understanding and discussion within all of society, of the relationship between health and human rights. If this were a debate about freedom of speech, there would be a grounding that the whole population would share in understanding the importance of freedom of speech to our society. That kind of appreciation for health as a human right doesn't exist. For example, there is no outcry against the exclusion of undocumented people from health care. The unwillingness to see all people as having dignity, and all people as having rights to health care, wherever they are - it's just not part of the discussion. We don't look at whether poor people in Medicaid are entitled to fewer services than people in private plans or receive lower quality care. So we're paying the price, as a society, of not having a culture of human rights in health, and we see it every single day in this debate.

HA: Do you think it is effective to take a human rights-based approach to healthcare reform advocacy in the US right now?

LR: It's never too late to bring the human rights perspective to healthcare reform. It is up to those of us who believe deeply in human rights to assure that human-rights concerns, such as how marginalized people are treated, are injected into debates in healthcare reform. Even if we don't prevail, raising the issues makes the conversation richer and provides a platform for putting technical issues like affordability and coverage in a much broader context. There have been inklings of what a human rights approach would bring to the reform discussions. For example, the debate about affordability and the degree of subsidies people will receive goes to the heart of access to care and equity.

SP: One way to conceptualize human rights is in terms of positive rights and negative rights. It seems like over the course of American history, there is a strong discourse about negative rights - freedom of speech, freedom from violent crime, and so on - which is dramatically punctuated by movements for positive rights, such as Labor rights, Women's Suffrage, and the Civil Rights movement. How do we achieve a change where we stop having to have huge social movements every time we argue for a positive right?

LR: That is one of the major fault lines in American history. In the human rights world, this division between positive and negative rights has been breaking down. Within the American conversation, the distinction between the two remains. What's interesting is that embrace of so-called positive rights go back many, many decades. In fact, going back to the origins of the Universal Declaration on Human Rights, Franklin Roosevelt in his famous "Four Freedoms" speech talked about freedom from want and freedom from fear. He had a vision of positive rights that helped inspire the Universal Declaration on Human Rights. So we do have a tradition of positive rights in this country. But it is difficult because we also have a very strong tradition of anti-government ideology, and positive rights are all too often - often inaccurately - tied to and equated with increasing the power of government, and that in some ways is shaping the debate around health care reform today. I think your generation is going to be able to transform the thinking about the positive/negative duality so arguments against recognizing obligations to meet needs essential to human dignity won't be as powerful - in the same way as your generation is transforming attitudes about people who used to be deeply marginalized, for example gay people, where they are now largely accepted as equal in every way by members of your generation.

HA: Another aspect of America's historical conversation about human rights is that we seem to have a very strong tradition of defending them from violations perpetrated by the government, or by public entities. But in the world we live in, it seems that the violators are often private entities, such as corporations, or security firms operating in Iraq, or insurance companies operating domestically. My feeling is that we are just not used to making the accusation against those entities of violating rights, when in fact that is what they are doing. Do you think there is a way of talking about the actions of private entities in a way that is grounded in human rights?

LR: There is actually a very vibrant movement to bring powerful third parties, like multinational corporations or financial institutions, within the human rights framework, and there are a lot of tools being used..So the human rights field has taken on the question of non-state actors in a big way. There is also another way of looking at this question, which is that states have the responsibility not only to respect human rights, but to protect them from violations by others. So there is a dimension of state responsibility for the conduct of third-party actors as well.

SP: What is your advice to medical students and health professionals as they move forward in their training?

LR: My advice is that you will be both a better physician and a far more satisfied one if you ground your practice in human rights.

The editors would like to thank Wilnise Jasmine and Susan Lewis for their help with this interview.