A SHORT HISTORY OF THE U.S. GOVERNMENT RESPECT FOR HUMAN LIFE

The United States has a long history of human medical experimentation

As early as 1900, an American doctor conducting research in the Philippines was found guilty of infecting prisoners with the Plague and Beriberi.1 Such incidents have outraged and shocked many Americans, but they have continued to occur nevertheless. There have been some interesting developments in human medical experimentation this century, most of them referring to the idea of informed consent, which has its roots in the Nuremberg Code.

In response to the atrocities Nazi doctors and medical scientists had committed on prisoners in concentration camps, a series of international and national statutes were implemented to prevent further inhuman experiments. The most renowned statute created was the Nuremberg Code, established by a three-judge panel of U. S. judges, who tried and convicted the Nazi doctors and scientists who had subjected Jewish prisoners to cruel, inhuman, and nonconsensual experiments. Developed as a legal guideline of what was acceptable in international research standards, the Nuremberg Code sought to govern medical studies performed on human beings by providing ethical regulations for human experimentation based on informed consent.

Despite regulations providing protection for the welfare of human subjects, inhuman atrocities affecting disadvantaged groups persisted in the United States. For example, the U.S. government still managed to conduct studies like the infamous Tuskegee Experiment, subjecting hundreds of lower-class African-American men to syphilis so that researchers could study and chart the natural progression of the disease.

After being the main advocates and initiators of codes to prevent cruel experiments from being performed on human subjects, the government still exposed disadvantaged groups to inhuman research and experiments without getting their informed consent.

After Allied forces defeated the Nazis and other Axis powers, the Charter of the International Military Tribunal was drawn up and Control Council Law No. 10 was established as a uniform legal basis in Germany for the prosecution of war criminals. Control Council Law No. 10 was signed on December 20, 1945 and established the articles for the punishment of persons guilty of war crimes, crimes against peace, and crimes against humanity. Executive Order 9547, signed by President Harry S. Truman, provided for the representation of the United States in preparing and prosecuting charges of atrocities and war crimes against the leaders of the Axis powers and their agents and accessories 2.

Afterwards, the military government in the U.S. zone of Germany began setting out the organization and powers of certain military tribunals. The infamous Nuremberg trial was one such tribunal. It was designated officially as the United States of America v. Karl Brandt and Case No. 1 of Military Tribunal I. Military Tribunal I was constituted on October 25, 1946, and immediately dove into the prosecution of 23 German physicians and scientists associated with the Nazi party who were accused of inflicting a range of vile and lethal procedures on vulnerable populations and inmates of concentration camps between 1933-1945.3 The Medical Case began a few months after 19 of 24 leaders of the Third Reich were found guilty of accusations of war crimes.4 Twelve of the nineteen leaders were sentenced to death, and the others were imprisoned for variable terms.

At first, American military forces occupying Germany had not planned to conduct an inquest on human experimentation, but they changed their minds as information emerged about the medical atrocities committed in concentration camps. Shocked by the information that they received, American forces decided to pursue the matter as a war crime under the Charter of the International Tribunal.5 On December 9, 1946, the twenty-three physicians and scientists were put on trial for participating in Adolf Hitler's racial cleansing movement.

In his opening statement, the chief prosecutor Telford Taylor claimed that the medical practitioners were on trial for murders, tortures, and other atrocities committed in the name of medical science.6 Many doctors were involved in the Nazis racial hygiene policies, and half of the German doctors were Nazi Party members. Those medical physicians and scientists who were not members of the Nazi Party had to be well connected with the Nazi political hierarchy. Nazis believed that doctors had a special role in improving the German race; after all, the medical and science profession played a key role in developing and testing Nazi racial hygiene theories.

At the end of the 19th century, German Social Darwinists, fearing a general degeneration of the human race, set about to establish a racial hygiene that would combat the disproportionate breeding of inferiors, the celibacy of the upper classes, and the threat posed by feminists to the reproductive performance of the family.7 Anti-Semitism did not play a major role in early racial hygiene theories as it did when the Nazi Party started to rise. The masterminds of the theory, Alfred Plötz and Wilhelm Schallmayer, were more concerned about the indiscriminate use of birth control by "the fit" and the provision of inexpensive medical care to "the unfit", than the breeding of superior races with inferior races. In fact, Ploetz classified Jews, along with Nordics, as being one of the superior, cultured races of the world.8

But that attitude toward Jews had begun to change toward the 1920s and the rise of Nazism. In 1918, racial hygiene was identified as a political program that stands above all parties by the racial hygienist Herman W. Siemens. Siemens argued that racial hygiene was based on the facts of inheritance and variability. "Inheritance" meant that man owed the essential part of his character, good or bad, physical or spiritual, to his genetic material, and "variability" implied that men differed substantially in their genetic value resulting in men who were genetically classified as fit or unfit.9 He claimed that if men who were fit bred less than those who were inferior, the quality of the race would decline. Siemens argued that the goal of a positive racial hygiene was to ensure that the fit left more offspring than the unfit, and if this failed, Germany would collapse in the face of an Asiatic triumph.10

This philosophy evolved more in the mid-1920s as the Nazi Party came to power and included in its tactics anti- Semitism, especially when the right-wing faction of the racial hygiene movement merged with National Socialism. The conservative, anti-Semitic J.F. Lehmann Verlag took over the publication of the main racial hygiene journal shortly after World War I and set the stage for Nazi ideologues to incorporate eugenic rhetoric into their propaganda.11

Biology played an important role in Nazi ideology. In 1929, a number of physicians joined the National Socialist Physicians League to coordinate Nazi medical policy and purify the German medical community of Jews. By 1933, nearly 3,000 doctors joined the League before Hitler came to power, and by 1942, more than 38,000 doctors (constituting about half the doctors in the country) had joined the Nazi Party.12 In fact, two major institutes were established, the Kaiser Wilhelm Institute for Anthropology in Berlin and the Kaiser Wilhelm Institute for Genealogy in Munich which recognized racial hygiene as a primary research goal. Both institutes conducted research in the fields of criminal biology, genetic pathology, and human genetics. Both institutes also trained SS physicians and helped construct the genetic registries later used to round up Jews and Gypsies.13 These institutes along with other racial hygiene institutes were also conducting twin studies, studies of identical twins raised apart to sort out the relative influences of nature and nurture in human character and institutions. Racial hygienists believed that many human behaviors, such as crime, alcoholism, wanderlust, and divorce, were at root genetic, and studies of how twins behaved in different environments were supposed to prove the ultimate genetic origins of racial and social differences.14 Thus, the medical profession was essential in the Nazi platform.

The Nazis adopted three main policies to begin their medical racial cleansing programs. These policies were the Sterilization Law, the Nuremberg Laws, and the euthanasia operation, which led to subsequent mass killings. Drawn up by several of Germany's leading racial hygienists, on July 14, 1933, the Nazi government passed the Sterilization Law permitting the forcible sterilization of anyone suffering from genetically determined illnesses including schizophrenia, epilepsy, Huntington's Chorea, deafness, and severe alcoholism.15 As a result of the law, about 350,000 to 400,000 people were sterilized in Germany. Sterilization and abortion were instituted for individuals of inferior genetic stock and declared illegal and punishable in some cases by death as a crime against the German body for healthy German women. Birth control of all forms was prohibited, except for Jews in which it was generally available and encouraged. Two years later, in 1935, Hitler ratified the Nuremberg Laws, excluding Jews from citizenship and outlawing marriage or sexual relations between Jews and non-Jews. A further measure, the Marital Health Laws, required couples to submit to a medical examination before marriage to detect and avoid the possibility of racial pollution. The laws were considered public health measures and were administered primarily by physicians.16

A month after World War II began, in October 1939, the Nazis engaged in euthanasia operations. Hitler decreed orders that certain doctors be commissioned to grant a mercy death to patients judged incurably sick by medical examination. The euthanasia operation was planned and administered by leading figures in the German medical community. The Germans forcible euthanasia operation was an economic endeavor important during wartime to free up beds. The first gassings of mental patients took place in Poland 45 days after Germany invaded that country. By August 1941, in the first stage of the operation, more than 70,000 patients from German mental hospitals had been killed. Afterwards, euthanasia became part of normal hospital routine in Germany itself. Handicapped infants, people requiring long-term psychiatric care and judged incurable, and elderly patients in homes were regularly put to death.17 To the Germans, these were people whose lives were not worth living. The euthanasia operation eventually led to the destruction and genocide of Jews, homosexuals, Communists, Gypsies, Slavs and prisoners of war. The question of what to do with Jews was cast as a public health problem to the Third Reich.

In 1935, the Führer of the Nationalist Socialist Physicians League, Gerhard Wagner, declared that Judaism was an incarnate disease. He claimed that various diseases, including insanity, feeblemindedness, hysteria, neuralgia, chronic rheumatism, and flat feet were more common among Jews than non-Jews18 So began one of the greatest atrocities of mankind when Nazis enforced extermination of Jews and other populations by gassing them in concentration camps. The Nazis used physicians and scientists to carry out their sadistic policies and exploited both the intimacy and authority of traditional physician-patient relationship. Doctors served as executors and performed selections of people to be killed in the concentration camps. In fact, a decree was issued in 1943 saying that only physicians trained in anthropology could perform selections at concentration camps. 19

Medical professionals also used the Nazi Party for their advantage and benefit. Ambitious researchers used the racial hygiene policies to their advantage. The researchers, many of whom were members of the Nazi Party, could avail themselves on experimental subjects without limitations and could justify and rationalize their actions by the notion that the concentration camp inmates were eventually slated to die.20 The medical community also grew substantially under the Nazis, and the physicians achieved a higher status in the period of Nazism than at any time before or afterwards. The Office of the President at German universities was occupied by physicians 59% of the time during the 12 years of Nazism in contrast to 36% of the time for the decade prior to Nazism and to 18% of the time for the decade following the Nazi period. Doctors also prospered financially, earning 2,000 RM more than lawyers by 1936. Also, many physicians were in support of Nazi ideology and engaged in the correlation between Nazi ideology, social policies, and medicine. They were intrigued by the Nazis efforts to biologize or medicalize a broad range of social problems, such as crime, homosexuality, the collapse of the German imperial strength, and the Jewish and the Gypsy problems.21 The physicians and the scientists wanted to be among the first to make the medical break through that would advance the military goals of the Third Reich and make them heroes of racial medicine.

The Nazis, the physicians, and the scientists all held this view: There were superior and inferior races, worthies and unworthies, healthy and diseased. If it required the deaths of 20 or 100 Russian prisoners of war to increase the chances of saving one German pilot, this was a justified investment. Concentration camp inmates were valued as slave labor and when that labor was exhausted, they were not even worth keeping alive. They were lives without value, and their death implied a saving. The urgency of the war effort and the endorsement of the highest state authorities further encouraged physicians and scientists to perform human subject research on problems of pressing concern on the battlefield.23

During the trial of the 23 physicians and scientists, the racial hygiene view was used to justify their participation in the vile human experimentation they conducted with concentration camp prisoners. The physicians maintained that research was necessary in times of war and national emergency, military and civilian survival was dependent on the scientific and medical knowledge derived from human medical experimentation.24 The trial was held at Hitler's Palace of Justice in Nuremberg, which was the site of Hitler's administrative and judicial offices and his stupendous mass rallies.25 The defendants, which included Karl Brandt, Hitler's personal physician, who was also Reich Commissioner for Health and Sanitation and for which the case was named, were prosecuted in a United States styled military court presided by a three-judge panel consisting of Americans. For eight months, witnesses from hospitals and camps throughout Germany and Eastern Europe were brought to Nuremberg to testify. Various transcripts and testimonies revealed the atrocities and heinous acts that were committed in the concentration camps against Jews, Gypsies, and other classes of people the Nazis viewed as inferior.

Medical experiments listed under crimes committed in the guise of scientific research included mustard gas, epidemic jaundice, sterilization, typhus, incendiary bomb experiments, muscle and nerve regeneration, and bone transplantation.26 Court records described how numerous individuals died in agony and terror under the cold eye of the physicians and scientists who designed protocols and observed and recorded the manner of death. In the freezing experiments, Nazi researchers conducted experiments in the best way to thaw out Luftwaffe fliers forced to bail out over frigid waters of the North Sea. They tested various thawing techniques by exposing a number of prisoners to freezing conditions and experimented with various methods of reviving them.27 Other experiments they conducted for military purposes included the seawater experiments in which researchers forced subjects to drink seawater to determine how long pilots could survive downed in the ocean and establishing the point at which lungs exploded due to atmospheric pressures, an important issue for fighter pilots seeking to avoid anti-aircraft fire. In the incendiary bomb experiments, experiments were conducted at concentration camps to test various pharmaceutical preparations on phosphorus burns. Burns were inflicted on experimental subjects with phosphorus matter taken from incendiary bombs, which caused severe pain, suffering, and serious bodily injury.28 Many prisoners were also subject to inoculations of infectious disease pathogens.29 An estimated 100,000 human beings died horrible deaths in the course of experiments at Auschwitz, Buchenwald, Dacheau, Sachsenhausen, and other camps.30

After eight months of hearing such malicious crimes and acts done by researchers regarding human experimentation, on August 20, 1947, the judges gave the verdict, finding 15 of the 23 defendants guilty of war crimes and crimes against humanity, including human experimentation involving unconsenting prisoners.31 Seven were found not guilty and one was acquitted of the charges of having performed medical experiments but was found guilty of SS membership. Seven of the fifteen found guilty were sentenced to death by hanging and the other eight were imprisoned. Karl Brandt was one of the physicians sentenced to death, and on the day of his hanging, he exclaimed waiting beside the gallows, "It is no shame to stand on this scaffold. I served my fatherland as others before me!"32 Even upon their deaths, a majority of the physicians and scientists claimed that they did not do anything that was wrong.

The American judges at Nuremberg wanted to do more than punish the Nazi researchers for their actions. They sought to establish appropriate ethical standards for the conduct of human experimentation that would be universal and prevent Nazi atrocities from ever occurring again. Thus the Nuremberg Code, a set of ten principles to provide ethics and limitations on human experimentation, was born. The Nuremberg Code was based on a convergence of historical documents, testimonies, and standards of ethical human experimentation in the Doctors Trial. The principles of the Code were derived from the testimonies of two medical expert witnesses for the prosecution, Leo Alexander and Andrew Ivy, who were heavily influenced by the oaths, codes, and writings of such great thinkers as Hippocrates.

The Hippocratic Oath, written some time between 470 and 360 B.C.E., had been a significant ethos of medical practice and ethics and declared that the physician should work to the best of his ability for the good of his patients. The Oath stated, "I will follow that system of regimes which, according to my ability and judgment, I consider for the benefit of my patients and abstain from whatever is deleterious and mischievous."33 The judges had incorporated the medical experts' views into their final judgement and enumerated the 10 principles of the Nuremberg Code. The Code provided guidelines for the research setting, the integrity of the investigator, the balancing of rights and benefits, and the most important provision of all, the specifics of voluntary informed consent. In fact, the very first principle of the Code declared that the voluntary consent of the human subject is absolutely essential. The first principle was followed by two paragraphs which laid down the specifics of voluntary consent, stating that the person involved in an experimentation should have the legal capacity to give consent, situated to exercise free power of choice, given knowledge and comprehension of the experiment, and be made aware of the risks and dangers.

The Nuremberg Code became the first code to establish ethical standards for human experimentation and govern human experimentation in international law. The Code spurred on the development of other legal policies to govern human experimentation based on voluntary, uncoerced, and informed consent.34 The Nuremberg Code was not a flawless document, and the judges did not consider therapeutic research or subjects who were incompetent to make informed judgments in its implementation. The judges did not consider the fact that terminally ill patients might become depressed or unwilling to undergo further treatment if informed of their prognoses. So, in 1964, the World Medical Association created the Declaration of Helsinki, which drew a sharp line between therapeutic and non-therapeutic research.35 The document did not obtain an absolute requirement that informed consent be obtained in the setting of therapeutic research and introduced the notion of guardianship as means of obtaining consent from incompetent subjects.36 The Declaration permitted the physicians, under certain circumstances that he or she must defend, to waive the requirement of informed consent. Nevertheless, the Nuremberg Code was supposed to serve as the ethical basis for researchers conducting experiments on human subjects.

The Nuremberg Code was supposed to be a guard against further atrocities and provide protection for human subjects of research. One author stated: The Nuremberg Code gave us a blue print for a better world. It showed us that wanton aggression cannot be permitted if we are to have a secure world and assured peace. The Code showed us that we must reach the behaviors of individual to create a better world. That we must penetrate the veil of national sovereignty and punish the individual for violations of international law if we are to give that law life and vitality. Nuremberg also taught us that we need to recognize individuals as having international rights, which are not dependent on nation-state recognition.37

However, the United States, the main initiators of the rules to protect human research subjects and to prevent further atrocities, were the perpetrators of its own heinous acts justified in the name of medical science. After punishing Nazi researchers and establishing a universal law, the United States allowed its researchers to conduct its own racial and social hygienist experiments on minorities and other disadvantaged populations that would be deemed unfit in the terms of Nazi ideology. Human experimentation has remained a scientific dilemma in the medical arena. Human experimentation refers to scientific experiments, in which humans are used as subjects. The selection of human subjects for experiments continues to present many challenges. Subjects in the experiments can be nonconsensual or consensual. Unfortunately, many times subjects are unwilling or unknowing subjects of the experiments. Even more, the human rights of these individuals have been almost disregarded by the physicians involved.

Fifty years ago, the Nuremberg Code called for the informed consent of participants in human research.38 That same year penicillin was recognized as the standard of care for syphilis. However, researchers from the U.S. Public Health Service continued to conduct a long running study in Tuskegee, Alabama, on the course of the disease in African American men and chose not to provide penicillin to study participants.39 The Tuskegee study remains one of the most controversial experiments that has occurred in the United States. The Tuskegee study has since become a national symbol of racial and scientific exploitation.40 The fact that the government was involved in the experiment casts doubts on the future trust of the government by African Americans, as well as distrust for the medical arena. The fact that the study used poor African-American men at the governments consent demonstrates a substantial conflict with the basic rights that each citizen of the United States is supposed to possess. Even more, the impact of the study continues to be felt as the mistrust it generated in the eyes of African Americans.

The Tuskegee study began in 1932, when the federal government promised four hundred poor African American men -- all residents of Macon County, Alabama -- free treatment for Bad Blood, a euphemism for syphilis, which was epidemic in the country at that time.41 These men signed up with the U.S. Public Health Service for free medical care. The service was conducting a study on the effects of syphilis on the human body and, at that time, the sexually transmitted disease was rampant in Macon County, Alabama.42 The study ran from 1932-1972. Throughout the four decades, the men in the study at no point were ever told that they had syphilis. Nor, did the physicians tell the syphilitic men that they might have infected their wives, or doomed their children to a devastating congenital infection.43 In fact, they were continuously told that they had bad blood and were denied access to treatment, even for years after penicillin came to use in 1947.44 Even more, the physicians conducting the study went through extreme lengths to ensure that the men would not receive therapy from any other sources. It was not until the early 1970s that the popular media disclosed the research and the study was terminated.

The fact that the study targeted African American men raises another dilemma. The researchers targeted a population to study a problem that was not confined to that group. Even more, the men that were targeted were already disadvantaged in terms of socioeconomic status and medical condition.45 Because of the low educational status of the majority of the patients, it was impossible to appeal to them from a purely scientific approach.46 They were vulnerable subjects who were given incentives for their participation. The incentives offered by the Public Health Service included: free physical examinations, free rides to and from clinics, hot meals on examination days, free treatment of minor ailments, and a guarantee that a burial stipend would be paid to their survivors.47 The unfortunate thing is that free hot meals meant more to the men than $50 worth of free medical examination. The material incentives gave the men a support and a basic feeling of good will towards the physicians. In reality, their vulnerability was just the root of an unethical medical experiment gone bad.

The issue of why the physicians did not terminate the experiment after a cure was found remains one of the most difficult aspects of the experiment to face. Throughout the forty years of the study, it was periodically reviewed by U.S. Health Service officials. In each case the study was extended based on the argument that stopping the study, while helping the individuals, would interfere with the benefits of medical science of studying this untreated disease.48 Those studying the men rationalized their point of view by claiming that these extremely poor and sick men had the perks of medical attention, free aspirin for their aches and pains, a free nurse to watch over them, and would have their funerals paid for. These physicians ignored the fact that penicillin was a relatively inexpensive, safe, fast acting, wonder drug that cured many infections, including syphilis.49 The effects of the study are limitless. Over the years, the men suffered the effects of the untreated sickness, which can cause brain damage and paralysis. Some men infected their wives, and some of them, in turn, passed the disease on to their children.50 By the time the study was exposed in 1972, 28 men died of syphilis, 100 others were dead of related complications, at least 40 wives had been infected and 19 children had contracted the disease at birth. The U.S. Department of Health, Education, and Welfare only stopped the study after its existence was leaked to the public and it became a political embarrassment.51

The Tuskegee experiment has left a legacy of mistrust in the African American community. Louis Sullivan, MD, president of Morehouse University School of Medicine in Atlanta, explained that the Tuskegee study, more than any other factor, resulted in the African American community's distrust of the medical arena.52 Even more, it is such abuse that has caused a significant number of African Americans impacted by HIV/AIDS to refuse services from mainstream medical professionals. This is only one of the consequences of the study. Others suggest the Tuskegee study is the cause for the low participation of African Americans in clinical trials and organ donation effort.53 In essence, the study continues to cast a long shadow over the relationship between African Americans and bio-medical professionals. Some suggest that the apology by President Clinton for the experiment will mark a renewed effort to heal the wounds. However, others are unsure that after a quarter of a century and six presidents later, whether the apology can make change, if any.54 It is unfortunate that it took the Tuskegee incident for the U.S. medical community to learn the lessons of the Nuremberg Trials and the effects of human experimentation.

The Tuskegee syphilis study has been one of the most widely cited examples of research in which human subjects were not adequately protected. Even more, the fact that the study was government sanctioned has led to many unfortunate consequences, including a lack of trust by African Americans towards the medical community and the U.S. government. Although the apology by President Clinton was a necessary remedy, it alone can not ensure that an atrocity such as Tuskegee will not be duplicated. However, after the truth of the experiment was revealed, clinical research policy reforms were enacted to legally protect patients while binding science to specific rules and regulations. Although this will not take away the pain of the experiment, it will prevent others from becoming a target of another unethical experiment (or will it?). In 1952, at the Sloan-Kettering Institute, Chester M. Southam injected live cancer cells into 396 inmates at the Ohio State Prison. Half of the inmates involved were black. Oddly enough, one of the sponsors of this experiment, the National Institutes of Health, had also been a sponsor in the Tuskegee experiments. Southam was temporarily stripped of his medical license after injecting 22 elderly hospital patients with cancer cells at Brooklyn's Jewish Chronic Disease Hospital.55

Once again we see that at the heart of protection against unethical medical experimentation is the principle of informed consent. Not only is a patient insured the right to consent, but they must also be consenting with full knowledge and understanding of what is happening. They must be aware of side effects, possibility of failure, recovery time, etc. This is no longer a simple concept that can easily be misconstrued. The key word is not consent, but rather both informed and consent.

On November 28th 1953, in New York City, a psychotic and depressed Dr. Frank Olson threw himself out of a tenth floor hotel window. Nine days earlier, Dr. Olson had been unwittingly slipped 70 mcgs of lysergic acid diethylamide into an after-dinner drink by a colleague, Dr. Sidney Gottlieb, head of the CIA's Technical Service and key orchestrator in MKULTRA, to determine the effects of LSD on unknowing subjects. After ingesting 70 mcgs of LSD, Dr. Olson entered a nine-day state of psychosis that culminated with him jumping through a screened glass window to his death. In defense of his actions, Dr. Gottlieb and others in Operation MKULTRA said that non-consensual human experimentation with LSD was necessary to gather accurate information about the drug's effects.56 Two years later in San Francisco Captain George White of the OSS sat behind a two-way mirror, martini in hand, observing the effects that LSD has on sexual behavior for Operation Midnight Climax. Operation Midnight Climax was a sub-project of MKULTRA. Captain White hired prostitutes to lure unknowing patrons into a CIA-run brothel fully equipped with surveillance cameras, audio bugs, and two-way mirrors. At these safe houses, the unknowing subjects would be given beverages laden with LSD. CIA agents would then observe the effects that LSD and sexual intercourse have on various interrogation technique.57 The same reason given for the experiment on Dr. Olson was supplied for these actions. How can this be legal? Both of these cases of human experimentation without informed consent were entirely legitimized and funded by the Central Intelligence Agency.

Operation MKULTRAs ultimate goal was achieving a state of mind control through drugs, electronic devices, or radiation. Unlike most other instances of non-consensual human experimentation, Operation MKULTRA transcended race and economic class in most of its subject gathering processes.58 This pursuit for a Manchurian Candidate stretched laws dealing with the jurisdiction as designated in the National Security Act of 1947 that established the CIA in addition to the infringement of basic human rights. The infringement of human rights laws and various laws dealing with non-consensual human experimentation was justified by the CIA through the rationale that experimentation of individuals with out consent was necessary to collect accurate results. In a 1954 memo, then CIA Director, Richard Helms justifies this by stating: "Most of our difficulty stems from the fact that the individuals subjected to testing must be unwitting... In the circumstances of potential operational use of this technique, it is virtually certain that the target will be unwitting".59 Those accurate results would then be applied towards research with purpose of insuring national security. This rationale proved inconsequential when the operation was exposed through a number of Senate hearings in the 1970's.

The Kennedy Hearing of 1977 actually began the process towards Executive Order 12333 that prohibits the experimentation on humans without consent by intelligence agencies. Operation MKULTRA was initiated on April 13, 1953. It was the next step of a smaller operation called BLUEBIRD that was spawned by a response to rumors that the Chinese and Soviets were far ahead of the U.S. in research dealing with mind control. According to the few documents on the operation that were not destroyed by order of CIA director Richard Helms in 1973, MKULTRA was an umbrella project that contracted 149 sub- projects to various universities. According to Admiral Stansfield Turner, Director of Central Intelligence, 19 sub- projects involved the drugging of human subjects without informed consent.60 Only top officials knew the exact purpose of MKULTRA. Most of the doctors involved were only aware of the particular sub-projects allocated to them from operatives. Some of these officials found themselves to be unwitting guinea pigs. It was common practice amongst the upper echelon officials within the project to slip each other doses of various drugs, LSD being the most prevalent, to see the effects that it has on subjects not knowing that they have been drugged.

After initial experiments, Dr. Gottlieb, the man responsible for the death of Dr. Olson, concluded that while it has little use as an interrogation drug, LSD could be used on leaders to create public humiliation. They even began planning an attempt to slip Fidel Castro, dictator of Cuba, LSD to decrease his machismo image.61 After discovering the files on MKULTRA that were not destroyed in 1973, the more friendly CIA administration headed by Admiral Stansfield Turner handed them over to Congress in 1975. The struggle to obtain these files was primarily won through the usage of Freedom of Information Act. The Freedom of Information Act, passed in 1966, allows private entities more access to information about government activities.62 Two years later, a special hearing by Senator Edward Kennedy took place that examined the Operation MKULTRA and its violations of the CIA jurisdiction guidelines within the National Security Act of 1947. During the hearing, it was revealed that the above stories were true in addition to many other violations of already established informed consent laws. Informed consent, as used in the hearing, can be defined as full processes of disclosure, comprehension, and voluntary agreement to participate.63 Citing the National Security Act, Dr. Gottlieb refused to inform the hearing of information not otherwise provided in the remaining files on MKULTRA. When confronted about various cases of human experimentation without informed consent, Dr. Gottlieb and other CIA operatives working on MKULTRA stated that the utilization of unwitting subjects was necessary. The rationale for such testing was "that testing of materials under accepted scientific procedures fails to disclose the full pattern of reactions and attributions that may occur in operational situations".64 They stated that the gathering of such data, and its strict secrecy from all but top CIA officials, was crucial to national security, and therefore protected under the National Security Act of 1947.

As a result of the Kennedy Hearing of 1977, then President Carter began the process of drafting legislation directly prohibiting such abuses of human rights through non-consensual experimentation for the purpose of gathering intelligence information. The attempt to narrow the potential for future abuse from the intelligence community was finalized by President Reagan's Executive Order 123333. Among other items listed that streamline intelligence jurisdiction, the order states: No agency within the Intelligence Community shall sponsor, contract for or conduct research on human subjects except in accordance with guidelines issued by the Department of Health and Human Services. The subject's informed consent shall be documented as required by those guidelines. 65 It is true that Operation MKULTRA took place. Dr. Olson did jump out of a ten-story window to his death due to a drug-induced psychosis initiated without consent by the CIA. Prostitutes on CIA payrolls did lure unknowing bar patrons to CIA funded brothels where they were slipped LSD and observed while having sexual intercourse. At the time, both activities were arguably legal due to the fact that the information gathered was supposedly crucial to national security because of its relevance to research in mind control. However, once information about MKULTRA went public, hearings commenced and Executive Order 123333 was passed prohibiting, in theory, human experimentation without informed consent by an intelligence agency for any reason.

In 1970, it was made evident that men were not the only people at risk of medical experimentation. Children too are very susceptible to mistreatment. The main reason for children being at risk of experimentation is their inability to consent for themselves. Adults must give consent for children, but they can be misled, as was the case at a free child-care program at Johns Hopkins University. Over 7,000 young boys were used in an experimental three-year study that could have labeled them as criminals indefinitely. The majority of these boys came from poor, African American families. These experiments were once again funded by the National Institute of Health, and were supposed to test for anemia and other medical problems. However, in actuality, the blood was screened for the extra Y chromosome. Such screening enabled those boys who were XYY to be labeled as at risk criminals. It was believed at the time that XYY boys were more aggressive and at risk of becoming criminals. Similar experiments were conducted on 6,000 young men in institutions for abandoned children. Once again the majority of these boys were African American. When parents were involved, their permission to conduct tests was often coerced. The project director, Digamber Borganokar, was not a physician, and his assistants were merely undergraduate psychology majors. Despite certain allegations, Johns Hopkins University had never granted permission for the experiments. Laws protecting people against such incidents were already in effect, but had done nothing to prevent such experiments.66

In Philadelphia, Doris Jackson had the opportunity to tell CBS America Tonight that she had been refused the right to see her son after his death, and when she finally did, she discovered that his brain had been removed. This occurred in 1987. Pennsylvania had a doctrine of implied consent. This basically stated that unless a patient or subject has signed a written document saying the contrary, then consent has been implied. Unfortunately, few people were aware of the law and felt they were denied the right to object. Researchers claimed that the organs these families donated went towards research, however, that was not always the case. More often than noted, these organs were going towards building the resume of students not because there was a need for the study, but rather because the students involved wanted self-gain.67 Implied Consent has opened up an entirely new argument for the precedent set by the Nuremberg Code. Can implied consent be informed consent?

Throughout the last few decades, there have been multiple experiments carried out by the United States Military. The Navy was responsible for spraying bacteria over San Francisco, under the claim that the bacteria were harmless and was merely a simulated attack. However, many San Francisco residents became ill. The U.S. military also allegedly released harmless gasses over six U.S. and Canadian cities once again under the cover up of studying a simulated attack. These harmless gasses, however, resulted in respiratory problems for many non- consenting civilians. Twelve people died when Tampa Bay, Florida experienced a sharp rise in Whooping Cough cases after a CIA test.68 In 1985, the courts ruled against a military liability case, reasoning that by doing so they would affect the chain of command. A former U.S. Army sergeant attempted to bring a lawsuit against the Army for using drugs on him, without his knowledge, in United States v. Stanley, 483 U.S. 669 (1987). Justice Antonin Scalia wrote the decision in this case, which absolved the U.S. military from any liability in cases where the military might conduct medical experiments without informed consent. It also had the effect of absolving all past wrong doings as well. Conservative Justice, Sandra Day O'Connor, who dissented, had cited principles of human rights, and concepts formulated under the Nuremberg Code in an attempt to hold military commanders responsible for their deeds.69

The Gulf War Syndrome was thought to be a direct result of the Gulf War. The Gulf War Syndrome is a title that has been given to a wide array of symptoms ranging from mere skin diseases to attacks on the nervous system. 1.7 million soldiers were sent to the Persian Gulf in 1990. Twenty-two percent of these soldiers were African American. It is widely believed that the Gulf War syndrome stems partially if not entirely from the experimental vaccines given to U.S. soldiers. Soldiers were forced to take these vaccines under federal law but were ordered to deny the fact that the vaccines were indeed experimental. Soldiers have had dishonorable discharges from the military for refusing to take the vaccines. The media has focused on the possibility of the syndrome stemming from exposure to chemical weapons; however, 33% of soldiers infected with the Gulf War Syndrome had never left the United States.70

In conclusion, human medical experimentation still remains a dilemma in the United States. Legal developments to protect citizens from experimentation without informed consent have been ineffective. The Nuremberg Code, which set the precedent for obtaining informed consent, was not able to keep human experimentation without informed consent from occurring, especially when the experiments targeted minorities and disadvantaged populations. These experiments were able to continue and occur because the United States held the same racial hygienists views as the Nazis concerning people that were fit and unfit. After establishing the Code, the U.S. entered into the Cold War hysteria, competing against Russian and Chinese Communists. Government officials, scientists, and doctors worked vigorously in trying to surpass the achievements and accomplishments of the Communist countries to prove, in ways similar to the Nazis' actions, that a Democracy was the quintessential form of government and that the United States was the best country in the world.

Already plagued by a history of racism and a history of prejudice toward the poor, the United States continued and began to conduct experiments on people they deemed to be unfit to place the U.S. in spot #1 of the Cold War competition and to improve the livelihood of the dominant culture. To Americans, as evident by the experiments conducted after Nuremberg, African-Americans, poor people, soldiers, the under class, like alcoholics, and other disadvantaged populations were considered to be lives worth not living if it meant advancing and saving the lives of the dominant, advantaged, white, and superior cultures. Many government officials and agencies and medical associations were able to continue to perform these experiments because they took advantage of populations who did not have a political voice and little knowledge of policies promoting protection for their general welfare. These agencies and associations also deceived many participants and rationalized many of their actions by saying that they were promoting national security.

Since the passage of the Nuremberg Code, American society has been plagued by human experimentation incidents such as the incident that occurred in Tuskegee. The Tuskegee Syphilis Study began in 1932, years before the adoption of the Nuremberg Code. However, the study continued until 1972, which was well after the Nuremberg Code was created. Even more, the study continued even after penicillin was discovered as a cure for syphilis. As the awareness of the benefits of penicillin grew, the researchers saw a greater urgency in continuing "a-never-again-to-be-repeated-opportunity."71 Yet, doctors claimed that they were merely doing their jobs. John Heller, MD, then director of the Public Health Services of Venereal Diseases stated, "For the most part, doctors and civil servants simply did their jobs. Some merely 'followed orders', others worked for 'the glory of science'". However, was this really the case? To deny that race played a role in the Tuskegee Study is naive. All 600 subjects (399 experimentals and 201 controls) were black; the Public Health Service directors and most of the doctors were white.73 In essence, the Tuskegee Study was simply an unethical and immoral experiment on disadvantaged subjects. Even more, it was a premeditated genocide on a disadvantaged group, who was simply uninformed of what their participation really consisted of. The Tuskegee Study represents the misfortune of human experimentation that targets disadvantaged or vulnerable groups. Unfortunately, race played an important part of the disadvantage for these subjects. Human experimentation of this kind should have never been allowed to occur. However, if the Nuremberg Code could not prevent it, what could have?

Given the atrocities committed on unknowing subjects during project MKULTRA, the CIA, in addition to other intelligence groups, had almost as much freedom as the Nuremberg doctors when it came to human experimentation. The CIA legitimized their actions under MKULTRA by explaining that the results of the experiments were detrimental to national security, thus being entirely legal according to their 1947 charter. When the United States Congress learned about the horrors committed under Project MKULTRA during the 1977 Kennedy Hearings, the process towards Executive Order 123333 began. This order made it illegal for all intelligence agencies to practice experimentation on unknowing subjects. However, most current medical experiments performed on humans have involved the military, which has free reign to do as it wishes because of the precedent set by the Supreme Court decision in 1985. Throughout the 1980s and early 1990s, there were a number of incidents in which the U.S. military was allegedly involved in conducting experiments on American citizens and soldiers, including the Gulf War Syndrome.

Presently, fewer experiments are being carried out because the concept of informed consent is beginning to be accepted. Informed consent is now recognized by more government agencies and medical associations than in the past. There have been current developments in the sphere of medical experimentation, such as a development that came with a case concerning the studies at Johns Hopkins University, stating that parents are legally responsible for children under 18 and must therefore be the persons giving informed consent when children are involved in medical experiments. There have also been developments in the military involving the Gulf War Syndrome. Perhaps, the current crisis concerning the Gulf War Syndrome will demand results and progress in the realm of monitoring and controlling human medical experimentation. There has been a decrease in the number of human medical experiments performed without informed consent. Hopefully, the next set of developments will put more reasonable controls on the military.

Footnotes

1 TriJet. Germ Warfare: The Hall of Shame (1997) http://home.earthlink.net/~bkonop/GermIncidents2.html

2 Annas, George J. and Michael A. Grodin, ed. "Introduction." The Nazi Doctors and the Nuremberg Code. New York: Oxford University Press, 1992.

3 Leaning, Jennifer. "War Crimes and Medical Science." British Medical Journal. Vol. 313, Issue 7070, 5pp. EBSCO Host. 7 Dec 1996 Dec. 1996. Hereafter, cited as Leaning.

4 Ibid.

5 Moreno, Jonathan D. "The Dilemmas of Experimenting on People." Technology Review, July 97, Vol. 100, Issue 5, 6pp. Hereafter, cited as Moreno.

6 Ibid.

7 Proctor, Robert N. "Nazi Doctors, Racial Medicine, and Human Experimentation." The Nazi Doctors and the Nuremberg Code. Ed. George J. Annas and Michael A. Grodin. New York: Oxford University Press, 1992. Hereafter, noted as Proctor.

8 Ibid.

9 Proctor, Robert N. "The Racial Hygiene: The Collaboration of Medicine and Nazism." Medicine, Ethics, and the Third Reich: Historical and Contemporary Issues. Ed. John J. Michalczyk. Kansas City: Sheed & Ward, 1994. Hereafter, cited as Racial.

10 Ibid.

11 Racial, 35.

12 Ibid, 36.

13 Proctor, 20.

14 Ibid.

15 Racial, 37.

16 Ibid, 38.

17 Ibid.

18 Proctor, 39.

19 Ibid, 27.

20 Moreno, 2.

21 Proctor, 27.

22 Ibid, 26.

23 Moreno, 2.

24 Grodin, Michael A. "Historical Origins of the Nuremberg Code." The Nazi Doctors and the Nuremberg Code. Ed. George J. Annas and Michael A. Grodin. New York: Oxford University Press, 1992.

25 Leaning, 1.

26 Ibid.

27 Moreno, 2.

28 "Judgement and Aftermath." (Historical Notes) The Nazi Doctors and the Nuremberg Code. Ed. George J. Annas and Michael A. Grodin. New York: Oxford University Press, 1992.

29 Grodin, 132.

30 Moreno, 2.

31 Grodin, 132.

32 Mielke, Fred and Alexander Mitscherlich. "Epilogue: Seven Were Hanged." The Nazi Doctors and the Nuremberg Code. Ed. George J. Annas and Michael A. Grodin. New York: Oxford University Press, 1992.

33 Ibid, 123-33.

34 Ibid.

35 Moreno, 4.

36 Leaning, 2.

37 King Jr., Henry T. "The Meaning of Nuremberg." Case Western Reserve Law Review,Winter98, Vol. 30, Issue 1, 5pp. EBSCO Host15 Apr. 1999. http://www.epnet.com

38 Wolinsky, H.
"Steps Still Taken To Undo The Damage of "'America's Nuremberg'". http://www.acponline.org/journals/annals/15aug97/currnazi.htm. Hereafter, cited as Wolinsky.

39 Ibid.

40 Levine, J. "Sour Legacy of Tuskegee Syphilis Lingers". Hereafter, noted as Levine.

http://www.epnet.com

41 America's Dirty Little Secret. Home page  http://www.aabhs.org/tusk.htm

42 Ibid, 1.

43 O'Grady, Mary. "Never Forget Tuskegee." http://www.progressive.org/mpogrady.htm

44 Levine, 2.

45 Rose, S. "Selecting Human Research Subjects. Protecting Human Subjects"

http://www.er.doe.gov/production/oher/humsubj/index.html

46 Rivers, E., Schuman, S., Simpson, L., and Olansky, S. Twenty Years of Followup Experience in a Long Range Medical Study. Resources on Non-Consensual Human Experimentation. Home page

http://www.dc.peachnet.edu/~shale/humanities/composition/assignments/experiment/rivers.html

47 America's Dirty Little Secret, 1.

48 Brent, S. The Tuskegee Syphilis Study. http://showme.missouri.edu/~socbrent/tuskegee.html

49 Boehm, Frank. "Tuskegee." Dr. Frank Boehm's Essays. Home page. http://dr-boehm.com/tuskegee.htm

50 Peterson, Jonathen. "Close Up: Tuskegee Experiment's Legacy is the Spread of Suspicion". Seattle Times. 17 Oct.

1977. http://www.seattletimes.com/extra/browse/html97/alttusk051697.html

51 Brent, 2.

52 Wolinsky, 2.

53 Guenther, Kim. "A Request for Redress of the Wrongs of Tuskegee".  http://www.med.virginia.edu/hslibrary/historical/apology/report.html

54 Boehm, 2.

55 Washington, Harriet A. "Unethical Testing Targets Blacks and the Poor" (October 1994) http://www.msbet.com/content/live/833.asp

56 U.S. Senate. 1977 Senate Report on MKULTRA. 1977. Parascope. Home page. Parascope.

Hereafter, noted as Senate. http://www.parascope.com/ds/documentslibrary/documents/mkultrahearing

57 History House. LSD and the CIA. Home page. History House. Hereafter, noted as History. http://www.historyhouse.com/stories/lsd.htm

58 Senate, Opening remarks.

59 Helms, Richard. Memo. 17 DEc 1963. Acid Dreams Document Gallery. Home page. Levity Books. 21 April. 1999.
http://www.levity.com/aciddreams/dox.html

60 Senate.

61 History.

62 A Citizen's Guide on Using the Freedom of Information Act and the Privacy Act of 1974 to Request Government Record. Home page. Tennessee Criminal Law Defense Resources. http://www.tncrimlaw.com/foia_indx.html

63 Guidelines for Writing Informed Consent Documents. Helix Systems 21 April. 1999. http://helix.nih.gov:8001/ohsr/info/finfo_6.phtml

64 Senate, App. A.

65 Executive Order 12333. 4 Dec 1981. Granite Island Group. http://www.tscm.com/EO12333.html

66 MSBET 10-11.

67 Washington, 12.

68 TriJet, 2.

69 TriHet, 4.

70 MSBET 9.

71 Wolinski, 1.

72 Ibid, 2.

73 America's Dirty Little Secret, 1

Works Cited

Apel, Warren S. "A Brief History on Flag Burning." http://www.esquilax.com/flag/history.html.

Apel, Warren S. "The Flag Burning Page." http://www.esquilax.com/flag

"Bill of Rights." National Archives. http://www.nara.gov/exhall/charters/billrights/billmain.html.

Hobbs, Howard.
"Historic & Modern Foundation of Freedom of Expression, Speech & Press,"
The Republican Law Journal.  http://www.dailyrepublican.com/first_amend.html/

Jefferson, Thomas. "Declaration of Independence." 1776. http://www.law.indiana.edu/uslawdocs/declaration.html.

Justice Brennan. United States Supreme Court. Texas v. Johnson, 491 U.S. 397 (1989)
http://www.esquilax.com/flag/texasvjohnson.html. FindlAW
 

Justice Brennan. Unites States Supreme Court. United States v. Eichman, 496 U.S. 310 (1990).

http://laws.findlaw.com/US/496/310.html. Findlaw.

Justice Frankfurter.
United States Supreme Court. Minersville School District v. Gobitis, 310 U.S. 586 (1940) http://laws.findlaw.com/US/310/586.html. Findlaw.

Justice Harlan. United States Supreme Court. Halter v. Nebraska, 205 U.S. 34 (1907) http://laws.findlaw.com/US/205/34.html. Findlaw.

Justice Harlan. United States Supreme Court. Street v. New York, 394 U.S. 576 (1969). http://laws.findlaw.com/US/394/576.html. Findlaw/

Justice Jackson. United States Supreme Court. West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943).
http://laws.findlaw.com/US/319/624.html. Findlaw.

105th Congress Report, House Joint Resolution 54. Library of Congress. ftp://ftp.loc.gov/pub/thomas/cp105/hr121.txt.

"Proposed Flag Amendment Rejected Once Again." American Civil Liberties Union. http://www.aclu.org/news/n100798a.html.

Taylor, Phillip. "Amendment backers, foes clash over flag-desecration history." The Freedom Forum Online.

http://www.freedomforum.org/speech/1998/7/14flag.asp

United States Supreme Court. Spence v. Washington, 418 U.S. 405 (1974)

http://laws.findlaw.com/US/418/405.html. Findlaw.

Van Kamp, Julie C. "Freedom of Expression at the National Endowment for the Arts." http://www.csulb.edu/%7Ejvancamp/freedom1.html.