DEA action on medical use of marijuana

Sign the Petition to Let Us Pay Taxes
Your guide to making money in the multi-billion dollar marijuana industry

DEPARTMENT OF JUSTICE

Drug Enforcement Administration

21 CFR Part 1308

[Docket No. 86-22]

Marijuana Scheduling Petition;

Denial of Petition; Remand

AGENCY: Drug Enforcement Administration

ACTION: Final Rule

SUMMARY: This is the final rule of the Administrator of the Drug Enforcement Administration (DEA) concluding the plant material marijuana has no currently accepted medical use and denying the petition of the National Organization for Reform of Marijuan a Laws (NORML) to reschedule marijuana from Schedule I to Schedule II of the Controlled Substances Act.

FOR FURTHER INFORMATION CONTACT: Office of Congressional and Public Affairs,

202-307-7363.

SUPPLEMENTARY INFORMATION:

Background

On December 21, 1989, the former Administrator of DEA, following rulemaking on the record, which included a hearing before an administrative law judge, issued a final order concluding the plant material marijuana has no currently accepted medical use, and denying the petition of NORML to reschedule marijuana from Schedule I to Schedule II of the Controlled Substance Act. 54 FR 53767. On April 26, 1991, the United States Court of Appeals for the District of Columbia Circuit remanded the matter to the Administrator for clarification of DEA’s interpretation of the term “currently accepted medical use in treatment in the United States.” Alliance for Cannabis Therapeutics v. DEA, 930 F.2d 936.

Following a review of the entire record in this matter, and a comprehensive re-examination of the relevant statutory standard, I conclude that marijuana has no currently accepted medical use and must remain in Schedule I. Further hearings are unneces sary since the record is extraordinarily complete, all parties had ample opportunity and wide latitude to present evidence and to brief all relevant issues, and the narrow question on remand centers exclusively on this Agency’s legal interpretation o f a statutorily-created standard.

Summary of the Decision

Does the marijuana plant have any currently accepted medical use in treatment in the United States, within the meaning of the Federal Controlled Substances Act, 21 U.S.C. 801, et seg.? Put simply, is marijuana good medicine for illnesses we all fear, such as multiple sclerosis (MS), glaucoma and cancer?

The answer might seem obvious based simply on common sense. Smoking causes lung cancer and other deadly diseases. Americans take their medicines in pills, solutions, sprays, shots, drops, creams and sometimes in suppositories, but never by smoking. No medicine prescribed for us today is smoked.

With a little homework, one can learn that marijuana has been rejected as medicine by the American Medical Association, the National Multiple Sclerosis Society, the American Glaucoma Society, the American Academy of Ophthalmology and the American Canc er Society. Not one American health association accepts marijuana as medicine.

For the last century, drug evaluation experts at the United States Food and Drug Administration (FDA) have been responsible for protecting Americans from unsafe and ineffective new medicines. Relying on the same scientific standards used to judge all other drugs, FDA experts repeatedly have rejected marijuana for medical use.

Yet claims persist that marijuana has medical value. Are these claims true? What are the facts?

Between 1987 and 1988, DEA and NORML, under the guidance of an administrative law judge, collected all relevant information on this subject. Stacked together it stands nearly five feet high. Is there reliable scientific evidence that marijuana is me dically effective? If it has medical value, do its benefits outweigh its risks? What do America’s top medical and scientific experts say? Would they prescribe it for their patients, their families, their friends?

As the current Administrator of Drug Enforcement, and as a former United States District Judge, I have made a detailed review of the evidence in this record to find the answers.

There are significant short-term side effects and long-term risks linked to smoking marijuana. Marijuana is likely to be more cancer-causing than tobacco; damages brain cells; causes lung problems, such as bronchitis and emphysema; may weaken the bod y’s antibacterial defenses in the lungs; lowers overall blood pressure, which could adversely affect the supply of blood to the head; causes sudden drops in blood pressure (orthostatic hypotension), rapid heart beat (tachycardia), and heart palpitati ons; suppresses luteinizing hormone secretion in women, which affects the production of progesterone, an important female hormone; causes anxiety and panic in some users because of its mind-altering effects; produces dizziness, trouble with thinking, trou ble with concentrating, fatigue, and sleepiness; and impairs motor skills.

As a plant, marijuana can contain bacteria capable of causing serious infections in humans, such as salmonella enteritidis, Klebsiella pneumonia, group D streptococcus and pathogenic aspergillus.

Several of these risks stand out. The immune systems of cancer patients are weakened by radiation and chemotherapy, leaving them susceptible to infection. If they experiment with marijuana to control nausea, they risk weakening their immune systems further and exposing themselves to the infection-causing bacteria in the plant. It is estimated, for example, that at Memorial Sloan-Kettering Cancer Center 60 patients die each year from pathogenic aspergillus infections.

Glaucoma patients face possible blindness caused by very high fluid pressures within their eyes. If they experiment with marijuana to lower their eye fluid pressure, it can cause dramatic drops in their blood pressure and reduce the blood supply to t heir heads. Glaucoma experts testified this reduces the blood supply to the optic nerves and could speed up, rather than slow down, their loss of eyesight.

MS, glaucoma and cancer patients who have undiagnosed heart problems risk heartpalpitations, very rapid heart beats and sudden dramatic drops in blood pressure if they experiment with marijuana. For MS and glaucoma patients who must take medications for the rest of their lives, experimenting with marijuana poses the additional risks of lung cancer, emphysema, bladder cancer and leukemia.

Many risks remain unknown. Marijuana contains over 400 separately identified chemicals. No one knows all the effects of burning these chemicals together and inhaling the burnt mix. Are these risks outweighed by medical benefits?

There are scientific studies showing pure THC (Delta-9-Tetrahydrocannabinol), one of the many chemicals found in marijuana, has some effect in controlling nausea and vomiting. Pure THC is pharmaceutically made in a clean capsule form, called Marinol, and is available for use by the medical community. More information on Marinol can be found in the “Physicians’ Desk Reference,” available in most libraries.

Since marijuana contains THC, you might think marijuana also would be effective. However, the effect of taking a drug in combination with other chemicals is seldom the same as taking just the pure drug. As already noted, marijuana contains over 400 o ther chemicals, not just THC. There are no reliable scientific studies that show marijuana to be significantly effective in controlling nausea and vomiting. People refer to the Sallan study as proving marijuana’s effectiveness. They are mistaken. The Sallan study involved pure THC, not marijuana. People refer to the Chang study to support marijuana’s effectiveness. They also are mistaken. Doctor Chang tested the combination of pure THC and marijuana to treat nausea and vomiting. The prel iminary results he got were probably due to the THC, not the marijuana. Because he tested the combination, we cannot tell just what effects can be attributed to marijuana alone. People cite a third study, done by Doctor Levitt, as proof marijuana is eff ective. They are mistaken. Doctor Levitt compared marijuana to THC in controlling nausea and vomiting, and he concluded that THC was the more effective drug.

A librarian can help locate copies of these studies should you want to see them for yourself. Sallan, et al., “Antiemetic Effect of Delta-9-Tetrahydrocannibinol in Patients Receiving Cancer Chemotherapy,” 293 New England Journal of Medicine 795-797 (1975); Chang, et al., “Delta-9-Tetrahydrocannabinol as an Antiemetic in Cancer Patients Receiving High-Dose Methotrexate,” 91 Annals of Internal Medicine 819-824 (1979); Levitt, et al., “Randomized Double Blind Comparison of Delta -9-Tetrahydrocannabinol (THC) and Marijuana as Chemotherapy Antiemetics,” (Meeting Abstract) 3 Proceedings of the Annual Meeting of the American Society of Clinical Oncology 91 (1984).

During the 1970's and 1980's, a number of states set up research programs to give marijuana to cancer and glaucoma patients, on the chance it might help. Some people point to these programs as proof of marijuana’s usefulness. Unfortunately, all research is not necessarily good scientific research. These state programs failed to follow responsible scientific methods. Patients took marijuana together with their regular medicines, so it is impossible to say whether marijuana helped them. Observa tions or results were not scientifically measured. Procedures were so poor that much critical research data were lost or never recorded. Although these programs were well-intentioned, they are not scientific proof of anything.

Some people refer to a study by Doctor Thomas Ungerleider as proof marijuana reduced nausea in bone marrow transplant patients. Unfortunately, Doctor Ungerleider neglected to follow responsible scientific methods in his study. Like the state program s, it proves nothing. Doctor Ungerleider chose not to publish his study evidently because of its serious weaknesses. He admitted as much when questioned under oath.

Those who say there are reliable scientific studies showing marijuana is an effective drug for treating nausea and vomiting are wrong. No such studies exist.

Our nation’s top cancer experts reject marijuana for medical use. Doctor David S. Ettinger, a professor of oncology at the Johns Hopkins University School of Medicine, an author of over 100 scholarly articles on cancer treatment, and a nationall y respected cancer expert, testified:

There is no indication that marijuana is effective in treating nausea and vomiting resulting from radiation treatment or other causes. No legitimate studies have been conducted which make such conclusions.

Doctor Richard J. Gralla, a professor of medicine at Cornell University Medical College, an associate attending physician at the Memorial Sloan-Kettering Cancer Center, and an expert in cancer research, testified:

Most experts would say, and our studies support, that the cannabinoids in general are not very effective against the major causes of nausea and vomiting.

Doctor Gralla added:

I have found that because of the negative side effects and problems associated with marijuana..., most medical oncologists and researchers have little interest in marijuana for the treatment of nausea and vomiting in their patients.

Doctor John Laszlo, Vice President of Research for the American Cancer Society, an expert who has spent 37 years researching cancer treatments, and who has written a leading textbook on the subject, “Antiemetics and Cancer Chemotherapy,” tes tified there is not enough scientific evidence to justify using marijuana to treat nausea and vomiting. Not one nationally-recognized cancer expert could be found to testify on marijuana’s behalf.

To be an effective treatment for glaucoma, a drug must: (I) lower the pressure within the eye (intraocular pressure), (ii) for prolonged periods of time, and (iii) actually preserve sight (vidual fields). Five scientific studies are cited as evidence marijuana is an effective glaucoma treatment. Those who cite these studies are mistaken. These studies tested pure THC, not marijuana. W.D. Purnell and J.M. Gregg, “Delta-9-Tetrahydrocannabinol, Euphoria and Intraocular Pressure in Man,” 7 A nnals of Ophthalmology 921-923 (1975); M. Perez-Reyes, D. Wagner, M.E. Wall, and K.H. Davis, “Intravenous Administration of Cannabinoids on Intraocular Pressure,” The Pharmacology of Marijuana 829-832 (M.C. Braude and S. Szara eds. 1976); J.C. M erritt, S.M. McKinnon, J.R. Armstrong, G. Hatem, and L.A. Reid, “Oral Delta-9-Tetrahydrocannabinol in Hyperogeneous Glaucomas,” 12 Annals of Ophthalmology 947 (1980); K. Green and M. Roth, “Ocular Effects of Topical Administration of Delta- 9-Tetrahydrocannabinol in Man,” 100 Archives of Ophthalmology 265-267 (1982); and W.M. Jay and K. Green, “Multiple-Drop Study of Topically Applied 1% Delta-9-Tetrahydrocannabinol in Human Eyes,” 101 Archives of Ophthalmology 591-593 (1983).

Three studies show very heavy doses of marijuana, taken for short periods of time, can reduce eye pressure. R.S. Hepler, I.M. Frank, and T.J. Ungerleider, “Pupillary Constriction After Marijuana Smoking,” 74 American Journal of Ophthalmolog y 1185-1190 (1972); R.S. Hepler, I.M. Frank, and R. Petrus, “Ocular Effects of Marijuana Smoking,” The Pharmacology of Marijuana 815-824 (1976); and J.C. Merritt, W.J. Crawford, P.C. Alexander, A.L. Anduze and S.S. Gelbart, “Effect of Marij uana on Intraocular and Blood Pressure in Glaucoma,” 87 Ophthalmology 222-228 (1980).

Unusually large doses of marijuana were needed in these three studies to achieve the desired effect. Heavy marijuana use produces dizziness, trouble with thinking, impaired motor skills, fatigue and sleepiness. The 1976 study by Doctors Hepler, Fran k and Petrus emphasized “Our subjects were sometimes too sleepy to permit measurement of intraocular pressures...3 hours after intoxication.” If a glaucoma patient were to smoke marijuana 8 to 10 times every day for the rest of his life, would h e be alert and energetic enough to live a relatively normal life? Would he develop other diseases? No scientific studies exist to answer these questions. Robert Randall claims to have saved his sight by smoking 8 to 10 marijuana cigarettes every day. U nder oath he admits he stays at home most days, follows no daily schedule or routine, and has not held a regular job in over 15 years. He also has avoided having a comprehensive medical examination since 1975.

No scientific studies have shown marijuana can reduce eye pressure over long periods of time.

No scientific studies have shown marijuana can save eyesight.

America’s top glaucoma experts reject marijuana as medicine. Doctor Keith Green is a professor of Ophthalmology who serves, or has served, on the editorial boards of eight prestigious eye journals (Ophthalmic Research, Oftalmo Abstracto, Current Eye Research, Experimental Eye Research, Investigative Ophthalmology, American Journal of Ophthalmology, Archives of Ophthalmology, and Survey of Ophthalmology). Doctor Green has conducted extensive basic and clinical research using marijuana and THC to treat glaucoma patients. He has authored over 200 books or research articles in ophthalmology and is a highly respected expert on this subject. Doctor Green testified:

There is no scientific evidence...that indicates that marijuana is effective in regulating the progression of symptoms associated with glaucoma. *** It is clear that there is no evidence that marijuana use prevents the progression of visual loss in gla ucoma. *** The quantities of the drug required to reduce intraocular pressure in glaucoma sufferers are large, and would require the inhalation of at least six marijuana cigarettes each day. *** Smoking is not a desirable form of treatment for many reason s...[M]arijuana...has little potential future as a glaucoma medication.

Doctor George Spaeth is the Director of the Glaucoma Service at Wills Eye Hospital in Philadelphia, the largest service in the United States devoted to researching and treating glaucoma and to teaching other doctors about this disease. Doctor Spaeth is President of the American Glaucoma Society. He is a professor of ophthalmology, the editor of a scholarly eye journal (Ophthalmic Surgery), and the author of over 200 research articles on glaucoma. He testified:

I have not found any documentary evidence which indicates that a single patient has had his or her natural history of the disease altered by smoking marijuana.

Amputees and victims of MS can suffer from extreme muscle spasms. It is claimed marijuana is useful in treating spasticity. Three unusually small, inconclusive studies have tried using pure THC, not marijuana, to treat spasticity. D.J. Petro and C. Ellenberger, “Treatment of Human Spasticity with Delta-9-Tetrahydro-cannabinol,” 21 Journal of Clinical Pharmacology 413S-416S (1981) (included only nine patients). Two of the studies are mere abstracts, or short digests, without much detail. Hanigan, Destee & Troung Abstr. B45, Clin. Pharmacol. Ther. 198 (1986) (included only five patients), and Sandyk, Cannoe, Stern and Snider Abstr. PP 331, 36 Neurology 342 (1986) (included only three patients).

No scientific studies exist which test marijuana to relieve spasticity.

National experts on MS reject marijuana as medicine. Doctor Kenneth P. Johnson is chairman of the Department of Neurology at the University of Maryland School of Medicine. He manages the Maryland Center for MS, one of the most active MS research and treatment centers in the United States. He sits on the editorial boards of noted medical journals related to MS (Neurology and Journal of Neuroimmunology). He is the author of over 100 scientific and medical articles on MS. Doctor Johnson has spent mo st of his long career researching MS and has diagnosed and treated more than 6,000 patients with MS. Doctor Johnson testified:

At this time, I am not aware of...any legitimate medical research in which marijuana was used to treat the symptoms of multiple sclerosis. *** To conclude that marijuana is therapeutically effective without conducting rigorous testing would be professi onally irresponsible.

Doctor Stephen Reingold is Assistant Vice President of Research for the National Multiple Sclerosis Society, which spends over $7 million each year on MS research. Only the Federal Government spends more. Doctor Reingold testified:

I could find no actual published research which has used marijuana.... In the existing research using THC, the results were inconclusive.... In the absence of any well-designed, well-controlled research..., the National Multiple Sclerosis Society...d oes not endorse or advocate its use....

Doctor Donald H. Silberberg is Chairman of the Department of Neurology at the University of Pennsylvania School of Medicine and Chief of the Neurology Service at the Hospital of Pennsylvania. Doctor Silberberg is on the editorial board of Annals of N eurology and is President of the National Medical Advisory Board for the National Multiple Sclerosis Society. He has been actively researching and treating MS for most of his career, has written over 130 medical articles on MS and is Co-Director of a lar ge MS research center at the University of Pennsylvania. Doctor Silberberg testified:

I have not found any legitimate medical or scientific works which show that marijuana...is medically effective in treating multiple sclerosis or spasticity. *** The long-term treatment of the symptoms of multiple sclerosis through the use of marijuana could be devastating. *** [T]he use of (marijuana), especially for long-term treatment...would be worse than the original disease itself.

The only favorable evidence that could be found by NORML and DEA consists of stories by marijuana users who claim to have been helped by the drug. Scientists call these stories anecdotes. They do not accept them as reliable proofs. The FDA’s r egulations, for example, provide that in deciding whether a new drug is a safe and effective medicine, “isolated case reports...will not be considered.” 21 CFR 314.126(e). Why do scientists consider stories from patients and their doctors to b e unreliable?

First, sick people are not objective scientific observers, especially when it comes to their own health. We all have heard of the placebo effect. Patients have a tendency to respond to drugs as they believe is expected of them. Imagine how magnifie d this placebo effect can be when a suffering person experiments on himself, praying for some relief. Many stories no doubt are due to the placebo effect, not to any real medical effects of marijuana.

Second, most of the stories come from people who took marijuana at the same time they took prescription drugs for their symptoms. For example, Robert Randall claims marijuana has saved his sight, yet he has taken standard glaucoma drugs continuously since 1972. There is noobjective way to tell from these stories whether it is marijuana that is helpful, or the proven, traditional medicines. Even these users can never know for sure.

Third, any mind-altering drug that produces euphoria can make a sick person think he feels better. Stories from patients who claim marijuana helps them may be the result of the mind-altering effects of the drug, not the results of improvements in the ir conditions.

Fourth, long-time abusers of marijuana are not immune to illness. Many eventually get cancer, glaucoma, MS and other diseases. People who become dependent on mind-altering drugs tend to rationalize their behavior. They invent excuses, which they ca n come to believe, to justify their drug dependence. Stories of marijuana’s benefits from sick people with a prior history of marijuana abuse may be based on rationalizations caused by drug dependence, not on any medical benefits caused by the drug. Robert Randall, for example, admits under oath to becoming a regular marijuana user in 1968, four years before he showed the first signs of, and was diagnosed as having, glaucoma. Since then he has smoked marijuana 8 to 10 times every day.

A century ago many Americans relied on stories to pick their medicines, especially from snake oil salesmen. Thanks to scientific advances and to the passage of the Federal Food, Drug and Cosmetic Act (FDCA) in 1906, 21 U.S.C. 301 et seg., we now rely on rigorous scientific proof to assure the safety and effectiveness of new drugs. Mere stories are not considered an acceptable way to judge whether dangerous drugs should be used as medicines.

There are doctors willing to testify that marijuana has medical uses. NORML found over a dozen to testify in this case. We have a natural tendency to believe doctors. We assume their opinions are entitled to respect. But what if a doctor is giving an opinion beyond his professional competence? Evaluating the safety and effectiveness of drugs is a specialized area. Does the doctor have this specialized expertise? Is he familiar with all the published scientific studies? Or is he improperly basi ng his opinion on mere stories or anecdotal evidence? Does he really know what he is talking about? Does he have a personal motive to exaggerate or lie? Questions like these led the United States Supreme Court, in 1973, to warn about the opinions of do ctors concerning the value of drugs as medicine, when not supported by rigorous scientific testing,

Weinberger v. Hynson, etc., 412 U.S. 609, 639:

[I]mpressions or beliefs of physicians, no matter how fervently held, are treacherous.

Nearly half the doctors who testified for NORML are psychiatrists. They do not specialize in treating or researching cancer, glaucoma or MS. One is a general practitioner who works as a wellness counselor at a health spa. Under oath he admits to us ing every illegal, mind-altering drug he has ever studied, and he prides himself on recommending drugs that would never be recommended by medical schools or reputable physicians. Another is a general practitioner who quit practicing in 1974. He admits h e has not kept up on new medical and scientific information about marijuana for 18 years.

Only one of the doctors called by NORML is a nationally-recognized expert. Doctor John C. Merritt is a board-certified ophthalmologist and researcher who has authored articles on the use of marijuana and cannabinoids to reduce eye pressure. He is in private practice and sees mostly children who suffer from glaucoma. Doctor Merritt testified, “[M]arijuana is a highly effective IOP-lowering drug which may be of critical value to some glaucoma patients who, without marijuana, would progressively go blind.” The last scientific study using marijuana in glaucoma patients, published by Doctor Merritt in 1979, concluded:

It is because of the frequency and severity with which the untoward events occurred thatmarijuana inhalation is not an ideal therapeutic modality for glaucoma patients.

One year later, in 1980, Doctor Merritt gave the following testimony, under oath, before the United States Congress, House Select Committee on Narcotics Abuse and Control:

For me to sit here and say that the lowering pressure effects occurred repeatedly, day in and day out, I have no data, and neither does anyone else, and that is the real crux of the matter. When we are talking about treating a disease like glaucoma, w hich is a chronic disease, the real issue is, does the marijuana repeatedly lower the intraocular pressure? I have shown you no...studies and to my knowledge there is no data to that effect.

Doctor Merritt was unable to explain, under oath, the contradictory positions he has taken on this subject.

Each of NORML’s doctors testified his opinion is based on the published scientific studies. With one exception, none of them could identify under oath the scientific studies they swore they relied on. Only one had enough knowledge to discuss th e scientific technicalities involved. Eventually, each one admitted he was basing his opinion on anecdotal evidence, on stories he heard from patients, and on his impressions about the drug.

Sadly, Doctor Ivan Silverberg, an oncologist from San Francisco, exaggerated while on the witness stand. At first he swore “there is voluminous medical research which shows marijuana is effective in easing nausea and vomiting.” Pushed on c ross-examination to identify this voluminous research, Doctor Silverberg replied, “Well..., I’m going to have to back off a little bit from that.” How far would Doctor Silberberg back off? Was he aware, at least, of the approximate number of scientific studies that have been done using marijuana to treat nausea? Under oath, he replied, “I would doubt very few. But, no, I’m not.”

Beyond doubt, the claims that marijuana is medicine are false, dangerous and cruel.

Sick men, women and children can be fooled by these claims and experiment with the drug. Instead of being helped, they risk serious side effects. If they neglect their regular medicines while trying marijuana, the damage could be irreversible. It i s a cruel hoax to offer false hope to desperately ill people.

Those who insist marijuana has medical uses would serve society better by promoting or sponsoring more legitimate scientific research, rather than throwing their time, money and rhetoric into lobbying, public relations campaigns and perennial litigati on.

Clarification of Currently Accepted Medical Use

The Controlled Substances Act of 1970 divides the universe of all drugs of abuse into five sets or schedules. Drugs in Schedule I are subject to the most severe controls, because they have a high potential for abuse and no currently accepted medical use in treatment in the United States. 21 U.S.C. 812 (b) (1). Drugs of abuse which have currently accepted medical use in treatment in the United States are placed in Schedules II, III, IV and V. Regrettably the Controlled Substances Act does not speak directly to what is meant by “currently accepted medical use.”

A century before the Controlled Substances Act was enacted, the determination of what drugs to accept as medicine was totally democratic and totally standardless. Each patient and each physician was free to decide for himself, often based on no more than anecdotal evidence.

This state of affairs became unsatisfactory to a majority of the American people. In 1906, Congress intervened with the passage of the Food, Drug and Cosmetic Act (FDCA). A shift began away from anecdotal evidence to objectively conducted scientific research, away fromuninformed opinions of lay persons and local doctors to expert opinions of specialists trained to evaluate the safety and effectiveness of drugs, and away from totally democratic decision-making to oversight by the Federal Government.

By 1969, Congress had developed detailed Federal statutory criteria under the FDCA to determine whether drugs are acceptable for medical use. Those deemed acceptable can be marketed nationally. Those deemed unacceptable are subject to Federal seizur e if marketed interstate. The FDCA is a very complex regulatory scheme not easily summarized. However, it is fair to say that drugs falling into one of four FDCA categories were accepted by Congress for medical use.

First, Congress accepted new drugs which have been approved by FDA’s experts as safe and effective for use in treatment, based on substantial scientific evidence. 21 U.S.C. 321(p) and 355 (so-called “NDA-approved drugs”).

Second, Congress accepted those drugs “generally recognized, among experts qualified by scientific training and experience to evaluate the safety and effectiveness of drugs, as safe and effective,” based on substantial scientific evidence. 21 U.S.C. 321(p) and 355; Weinberger v. Bentex Pharmaceuticals, Inc., 412 U.S.645 (1973). An acronym for this category is “human GRASE drugs” (Generally Recognized As Safe and Effective). These drugs achieve acceptance through rigorous scienti fic proof, through a past history of widespread use in treatment in the United States, and through recognition by a consensus of drug experts outside the FDA.

Third, Congress accepted for use in veterinary medicine those drugs “generally recognized, among experts qualified by scientific training and experience to evaluate the safety and effectiveness of animal drugs, as safe and effective,” based on substantial scientific evidence. 21 U.S.C. 321(w) and 355. An acronym for these is “animal GRASE drugs.” They achieve acceptance through rigorous scientific evidence and through recognition by a consensus of drug experts outside the FDA. U nlike human GRASE drugs, animal GRASE drugs need not have a past history of widespread use.

Finally, Congress accepted those drugs marketed prior to 1938 which had been subject to the 1906 provisions of the FDCA, provided these very old drugs retain their exact formulations and are never promoted for new uses. 21 U.S.C. 321(p) and (w). The se are politically “grandfathered” drugs. They need not meet modern standards for safety and effectiveness.

A fifth group of drugs was accepted for research use only, not for use in treatment of patients. 21U.S.C. 355(I) (so-called “IND or approved investigational new drugs”).

Drugs intended for medical use and shipped interstate are subject to Federal seizure under the FDCA if they do not fit within one of the above accepted sets or groupings. It seems fair to say that seizable drugs were rejected by Congress for medical use.

In enacting the Controlled Substances Act in 1970, could Congress have intended to create a totally new Federal standard for determining whether drugs have accepted medical uses? Or did Congress intend to rely on standards it had developed over the pr ior 64 years under the FDCA? There is nothing in the Controlled Substances Act, its legislative history, or its purposes that would indicate Congress intended to depart radically from existing Federal law.

Indeed, it seems likely that the core standards developed under the FDCA represent a long-term consensus of expert medical and scientific opinion concerning when a drug should be accepted by anyone as safe and effective for medical use.

Fortunately, there is a way to corroborate what Congress intended. Congress did more than just announce criteria for scheduling drugs of abuse under the Controlled Substances Act;Congress applied those criteria to an initial listing of drugs that it placed into the original five schedules of the Act.

NDA-approved drugs were placed by Congress into Schedules II, III, IV and V of the Act. For example, pethidine (also known as meperidine) received New Drug Application (NDA) approval in 1942. Congress put it into Schedule II(b) (14). Methamphetamin e had an approved NDA. Congress put it into Schedule III(a) (3). I am not aware of any drug with an approved NDA that Congress originally put into Schedule I.

Drugs with medical uses, but without approved NDA’s also were placed by Congress into Schedules II, III, IV and V. For example, cocaine was put into Schedule II(a) (4). Codeine combinations were put into Schedules III(d) (I) and V. Morphine co mbinations were put into Schedule III(d) (8). Phenobarbital was put into Schedule IV(11). Barbiturates were put into Schedule III(b) (1). Amphetamines were put into Schedule III(a) (1).

The Court of Appeals for the First Circuit was correct when it decided in Grinspoon v. DEA, 828 F.2d 881 (1987) that NDA approval is not the only method by which drugs can achieve Federal recognition as having medical uses. Congress put both GRASE an d pre-1938-grandfathered drugs into Schedules II, III, IV and V of the CSA.

Drugs recognized under the FDCA for research use only, not for use in treatment, such as alphacetylmethadol and marijuana, were placed by Congress into Schedule I.

Unfortunately, Federal records are not complete enough to do a comprehensive mathematical mapping, tracing every drug in the initial Controlled Substances Act schedules back to its legal status under the FDCA. Nevertheless, determining legislative in tent does not require mathematical certainty. Probability based on circumstantial evidence, on samplings, and in inductive reasoning can suffice, especially when there is nowhere else to turn.

The pattern of initial scheduling of drugs in the Controlled Substances Act, viewed in light of the prior legal status of these drugs under the FDCA, convinces me that Congress equated the term “currently accepted medical use in treatment in the United States” as used in the Controlled Substances Act with the core FDCA standards for acceptance of drugs for medical sue.

This is not to say that every FDCA requirement for GRASE status, or for NDA approval, is pertinent to scheduling determinations under the Controlled Substances Act. There are differences. But the core FDCA criteria appear to have guided the Congress in the decisions it made concerning the initial scheduling of drugs in the Act.

These same core FDCA criteria served as the basis for an eight-point test used by my predecessor as Administrator to describe drugs with currently accepted medical uses.

54 FR 53783 (December 29, 1989):

1.Scientifically determined and accepted knowledge of its chemistry;

2.The toxicology and pharmacology of the substance in animals;

3.Establishment of its effectiveness in humans through scientifically designed clinical trials;

4.General availability of the substance and information regarding the substance and its use;

5.Recognition of its clinical use in generally accepted pharmacopeia, medical references, journals or textbooks;

6.Specific indications for the treatment of recognized disorders;

7.Recognition of the use of the substance by organizations or associations of physicians; and

8.Recognition and use of the substance by a substantial segment of the medical practitioners in the United States.

Some uncertainty remains over the precise meaning and application of parts of this test. Therefore, the Court of Appeals for the District of Columbia Circuit remanded these proceedings for a further explanation. In addition to addressing those parts o f the test that concerned the Court of Appeals, it would be useful to clarify the entire test, pinpoint its origins, and identify which elements are both necessary and sufficient to establish a prima facie case of currently accepted medical use. This is not an effort to change the substantive law. The statutory meaning of currently accepted medical use remains the same as enacted by Congress in 1970. My purpose simply is to clarify this Agency’s understanding of the law.

A. The Drug’s Chemistry Must Be Known and Reproducible.

The ability to recreate a drug in standardized dosages is fundamental to testing that drug and to using it as a medicine. Knowing the composition, properties, methods of production, and methods of analysis of a drug is essential to reproducing it in standardized dosages. To be GRASE or to receive NDA approval, a drug’s chemistry must be known and reproducible. See e.g., 21 CFR 314.50(d) (1) and 314.126(b) (7) (d); Dorovic v. Richardson, 749F.2d 242, 251 (7th Cir. 1973). The listing of a drug in a current edition of one of the official compendia normally satisfies this requirement. 21 U.S.C. 321(j); 21 CFR 314.50(d) (1).

The first element of our eight-point test, namely, “scientifically determined and accepted knowledge of its chemistry,” should be clarified to read:

The substance’s chemistry must be scientifically established to permit it to be reproduced into dosages which can be standardized. The listing of the substance in a current edition of one of the official compendia, as defined by Section 201(j) of the Food, Drug and Cosmetic Act, 21 U.S.C. 321(j), is sufficient generally to meet this requirement.

Acceptance of this knowledge will be discussed elsewhere.

B. There Must Be Adequate Safety Studies

No drug can be considered safe in the abstract. Safety has meaning only when judged against the intended use of the drug, its known effectiveness, its known and potential risks, the severity of the illness to be treated, and the availability of alter native therapies. Hess & Clark Division of Rhodia, Inc. v. FDA, 495 F.2d 975, 993 (D.C. Cir. 1974). To know the risks, there must be adequate studies, by all methods reasonably applicable, to show the pharmacological and toxicological effects of the drug. 21 CFR 314.125(b) (2). This includes animal studies and clinical trials in large numbers of humans. 21 CFR 312.21. The studies need not be well-controlled, but they must be adequate. Edison Pharmaceuticals Co. v. FDA, 600 F.2d 831 (D.C. Cir. 1 979). Short term (acute) studies of a drug intended to treat long term (chronic) illness, such as glaucoma or MS, are clearly inadequate. United States v. Naremco, Inc., 553 F.2d 1138, 1143 (8th Cir. 1977). The second element of our eight-point test, n amely, “the toxicology and pharmacology of the substance in animals,” should be clarified as follows:

There must be adequate pharmacological and toxicological studies, done by all methods reasonably applicable, on the basis of which it could fairly and responsibly be concluded, by experts qualified by scientific training and experience to evaluate the safety and effectiveness of drugs, that the substance is safe for treating a specific, recognized disorder.

It must be emphasized that while the existence of adequate safety tests is a separate analytical question, the ultimate determination of whether a drug is safe for a specific use is not adistinct issue. Safety and effectiveness are inextricably linked in a risks-benefits calculation. A determination that a drug is ineffective is tantamount to a determination that it is unsafe. United States v. Rutherford, 442 U.S. 544 (1970).

The scheduling criteria of the Controlled Substances Act appear to treat the lack of medical use and lack of safety as separate considerations. Prior rulings of this Agency purported to treat safety as a distinct factor. 53 FR 5156 (February 22, 198 8). In retrospect, this is inconsistent with scientific reality. Safety cannot be treated as a separate analytical question.

C. There Must Be Adequate and Well-Controlled Studies Proving Efficacy.

Since 1962, Congress has prohibited the FDA to approve an NDA unless the applicant submits adequate, well-controlled, well-designed, well-conducted, and well-documented studies, performed by qualified investigators, which prove the efficacy of a drug for its intended use. 21 U.S.C. 355(d); 21 CFR 314.126. Similarly, a drug cannot be considered GRASE unless it is supported by this same quantity and quality of scientific proof. 21 CFR 314.200(e) (I); Weinberger v. Hynson, Etc. , 412 U.S. 609, 629 (19 73).

Studies involving related, but not identical, drugs are irrelevant. United States v. Articles of Food & Drug, 518 F.2d 743, 747 (5th Cir. 1975). Studies involving the same

drug combined with other drugs are irrelevant. United States v. Articles of Drug...Promise Toothpaste, 826 F.2d 564, 570 (7th Cir. 1987). Incomplete studies are insufficient. United States v. Articles of Food & Drug, supra. Uncontrolled studies a re insufficient. 21 U.S.C. 355(d); Cooper Labs v. FDA, 501 F.2d 772, 778 (D.C. Cir. 1974). Statistically insignificant studies are insufficient. 21 CFR 312.21, 314.50(d) (6) and 314.126(b) (7). Poorly designed studies are insufficient. 21 CFR 314.126( b) (2). Poorly conducted studies are insufficient. 21 CFR Part 58 - - Good Laboratory Practices. Poorly documented studies are insufficient. 21 CFR 312.58 and 314.200(e) (4). Studies by investigators who are not qualified, both to conduct and to eval uate them, are insufficient. 21 U.S.C. 355(d). Moreover, since scientific reliability requires a double examination with similar results, one valid study is insufficient. There must be two or more valid studies which corroborate each other. See l J. O ’Reilley “Food and Drug Administration” 13-55 n.12 (1985).

Lay testimonials, impressions of physicians, isolated case studies, random clinical experience, reports so lacking in details they cannot be scientifically evaluated, and all other forms of anecdotal proof are entirely irrelevant. 21 CFR 314.126(e); Weinberger v. Hynson, Etc., 412 U.S. 609, 630 (1973).

Element three of our eight-point test, namely, “establishment of its effectiveness in humans through scientifically designed clinical trials,” should be restated as:

There must be adequate, well-controlled, well-designed, well-conducted and well-documented studies, including clinical investigations, by experts qualified by scientific training and experience to evaluate the safety and effectiveness of drugs, on the basis of which it could fairly and responsibly be concluded by such experts that the substance will have the intended effect in treating a specific, recognized disorder.

D. Acceptance by Qualified Experts Is Required.

The opinions of lay persons are totally irrelevant to whether a drug is GRASE or meets NDA requirements. The observations and opinions of medical practitioners who are not experts in evaluating drugs also are irrelevant to whether a drug is GRASE or meets NDA requirements.

Weinberger v. Hynson, Etc., 412 U.S. 609, 619 (1973). By explicit requirements in the FDCA since 1938, the only body of opinion that counts is that of experts qualified by scientific trainingand experience to evaluate the safety and effectiveness of d rugs. 21 U.S.C. 321(p) and (w).

From this, one would conclude that expert acceptance of a drug as safe and effective for its intended use is essential to a drug having a currently accepted medical use under the CSA. How widespread must this expert acceptance be?

To be GRASE, a drug must be “generally recognized” among experts as safe and effective for its intended use. The drug must be known or familiar to the national community of relevant experts. United States v Articles of Drug...Furestrol Vag inal Suppositories, 294 F. Supp. 1307, 1309 (N.D. Ga. 1968) aff’d, 415 F.2d 390 (5th Cir. 1969). To determine if a drug is known to the community of experts, courts have looked to whether there is widely available scientific literature about the dru g, Premo Pharmaceutical Laboratories, Inc. v. United States, 629 F.2d 795, 803 (2d Cir. 1980), whether it is widely taught in medical schools, Lemmon Pharmaceuticals Co. v. Richardson, 319 F. Supp. 375, 378 (E.D. Pa. 1970), and whether it is widely discus sed by experts. United States v. Bentex Ulcerine, 469 F.2d 875, 880 (5th Cir. 1972).

The recognition of a drug as GRASE need not be universal. General recognition is sufficient. United States v. 41 Cartons...Ferro-Lac, 420 F.2d 1126, 1132 (5th Cir. 1970). The Supreme Court has interpreted this to mean a consensus of experts is fami liar with and accepts a drug as safe and effective. Weinberger v. Hynson, Etc., 412 U.S. 609, 629 (1973). However, if there is a serious dispute among the experts, a drug cannot be considered GRASE. United States v. An Article of Food...Coco Rico, 752 F.2d 11, 15 (lst Cir. 1985); Merrit Corp. v. Folsom, 165 F. Supp. 418, 421 (D.D.C. 1958).

During the NDA process, the FDA may reach out to the expert community for its views. 21 CFR 314.103© (3). The FDA need not determine that a drug is generally known and accepted by the expert community. Nor must the FDA develop a consensus of op inion among outside experts. The FDA has both the experts and the statutory mandate to resolve conflicts over the safety and efficacy of new drugs. Weinberger v. Bentex Pharmaceuticals, Inc., 412 U.S. 638, 653 (1973).

In drafting the Controlled Substances Act, Congress appears to have accommodated, rather than chosen from these different FDCA standards. Clearly, the Controlled Substances Act does not authorize the Attorney General, nor by delegation the DEA Admini strator, to make the ultimate medical and policy decision as to whether a drug should be used as medicine. Instead, he is limited to determining whether others accept a drug for medical use. Any other construction would have the effect of reading the wo rd “accepted” out of the statutory standard. Since Congress recognized NDA-approved drugs as having currently accepted medical uses, without any need for a national consensus of experts, FDA acceptance of a drug through the NDA process would see m to satisfy the Controlled Substances Act. And, since Congress recognized GRASE drugs as having currently accepted medical uses, without the need for NDA approval, acceptance of a drug by a national consensus of experts also would seem to satisfy the Ac t.

When a drug lacks NDA approval and is not accepted by a consensus of experts outside FDA, it cannot be found by the Attorney General or his delegate to have a currently accepted medical use. To do so would require the Attorney General to resolve comp lex scientific and medical disputes among experts, to decide the ultimate medical policy question, rather than merely determine whether the drug is accepted by others.

Because the recognition of a drug by non-experts is irrelevant to GRASE status, to NDAapproval, and to currently accepted medical use under the Controlled Substances Act, points seven and eight of our eight-point test should be combined and restated a s follows:

The drug has a New Drug Application (NDA) approved by the Food and Drug Administration pursuant to the Food, Drug and Cosmetic Act, 21 U.S.C. 355. Or, a consensus of the national community of experts, qualified by scientific training and experience to evaluate the safety and effectiveness of drugs, accepts the safety and effectiveness of the substance for use in treating a specific, recognized disorder. A material conflict of opinion among experts precludes a finding of consensus.

This restatement also incorporates the component of part one of our eight-point test concerning “accepted knowledge of its chemistry.”

E. The Scientific Evidence Must Be Widely Available.

Nothing in the FDCA, nor in FDA’s regulations, requires that scientific evidence supporting an NDA be published. This stems from the fact that a consensus of experts outside FA is not required for NDA approval. In contrast, most courts have hel d that a drug cannot be considered GRASE unless the supporting scientific evidence appears in the published scientific and medical literature. Without published studies, it would be difficult for the community of experts outside FDA to develop an informe d acceptance of a drug for medical use. Cooper Labs Inc. v. FDA, 501 F.2d 772, 786 (D.C. Cir. 1974).

Point four of the eight-point test focuses, in part, on the “general availability of information regarding the substance and its use.” This should be clarified to read:

In the absence of NDA approval, information concerning the chemistry, pharmacology, toxicology and effectiveness of the substance must be reported, published, or otherwise widely available, in sufficient detail to permit experts, qualified by scientifi c training and experience to evaluate the safety and effectiveness of drugs, to fairly and responsibly conclude the substance is safe and effective for use in treating a specific, recognized disorder.

F. General Availability of a Drug Is Irrelevant.

The second component of point four of the eight-point test involves the “general availability of the substance” for use in treatment. The second component of point eight focuses on “use of the substance by a substantial segment of the medical practitioners in the United States.” These elements justifiably concerned the Court of Appeals, leading to the remand in this case.

Under the FDCA, a human GRASE drug must have a material history of past use in treatment in the United States. 21 U.S.C. 321 (p) (2) (which has..., otherwise than in such investigations, been used to a material extent or a material time); Weinberger v. Hynson, Etc., 412 U.S. 609, 631 (1973). Rigorous scientific proofs and current unanimous acceptance by the medical and scientific community are not enough for a human drug to be GRASE. Tri-Bio Labs, Inc. v. United States, 836 F.2d 135, 142 n.8 (3d Cir .. 1987). The general availability of a drug for use in treatment is a factor courts have considered to determine if a human drug is GRASE.

In contrast, a drug can achieve current acceptance for human medical use through the NDA process without a past history of medical use in treatment. Also, animal drugs can become accepted as GRASE without any past history of medical use. Given this conflict in FDCA standards, which did Congress choose when drafting the CSA?

As the Court of Appeals points out, requiring a material history of past use in treatment before recognizing a drug as having a currently accepted medical use, would permanently freezeall Schedule I drugs into Schedule I. 930 F.2d at 940. Clearly, C ongress did not intend this result. Moreover, the use of the word “currently” before the term “accepted medical use” would indicate Congress rejected the human GRASE requirement of past material use in treatment. I conclude that the general availability of a drug is irrelevant to whether it has a currently accepted medical use in treatment within the meaning of the Controlled Substances Act.

G. Recognition in Generally Accepted Texts Is Irrelevant.

Point five of the eight-point test deals with “recognition of its clinical use in generally accepted pharmacopeia, medical references, journals or textbooks.” The listing of a drug in an official compendium is sufficient to show its chemist ry is scientifically established. This appears in my clarification to point one. The requirement that information concerning the chemistry, pharmacology, toxicology and effectiveness of the substance be reported, published or otherwise widely available, is explained adequately in revised point four. To the extent the scheduling of a drug directly influences its recognition in publications, this element is subject to the same criticism identified by the Court of Appeals concerning point four. Therefore , this should not be treated as a distinct requirement.

H. Specific, Recognized Disorders Are the Referent.

It is impossible to judge the safety and effectiveness of a drug except in relation to a specific intended use. A drug cannot obtain NDA approval or GRASE status except in relation to the treatment of a specific, recognized disorder. This is an esse ntial aspect of whether a drug has currently accepted medical use. Rather than standing alone, this requirement will be more clearly understood by incorporating it into the other critical elements.

To summarize, the five necessary elements of a drug with currently accepted medical use in treatment in the United States are:

(I) The Drug’s Chemistry Must Be Known and Reproducible

The substance’s chemistry must be scientifically established to permit it to be reproduced into dosages which can be standardized. The listing of the substance in a current edition of one of the official compendia, as defined by Section 201(j) of the Food, Drug and Cosmetic Act, 21 U.S.C. 321(j), is sufficient generally to meet this requirement.

(ii) There Must Be Adequate Safety Studies

There must be adequate pharmacological and toxicological studies done by all methods reasonably applicable on the basis of which it could fairly and responsibly be concluded, by experts qualified by scientific training and experience to evaluate the sa fety and effectiveness of drugs, that the substance is safe for treating a specific, recognized disorder.

(iii) There Must Be Adequate and Well-Controlled Studies Proving Efficacy

There must be adequate, well-controlled, well-designed, well-conducted and well-documented studies, including clinical investigations, by experts qualified by scientific training and experience to evaluate the safety and effectiveness of drugs on the b asis of which it could fairly and responsibly be concluded by such experts, that the substance will have its intended effect in treating a specific, recognized disorder.

(iv) The Drug Must Be Accepted by Qualified Experts

The drug must have a New Drug Application (NDA) approved by the Food and Drug Administration, pursuant to the Food, Drug and Cosmetic Act. 21 U.S.C. 355. Or, a consensus of the national community of experts, qualified by scientific training and experi ence to evaluate the safety and effectiveness of drugs, must accept the safety and effectiveness of the substance for use in treating a specific, recognized disorder. A materialconflict of opinion among experts precludes a finding of consensus.

(v) The Scientific Evidence Must Be Widely Available

In the absence of NDA approval, information concerning the chemistry, pharmacology, toxicology and effectiveness of the substance must be reported, published, or otherwise widely available in sufficient detail to permit experts, qualified by scientific training and experience to evaluate the safety and effectiveness of drugs, to fairly and responsibly conclude the substance is safe and effective for use in treating a specific, recognized disorder.

Together these five elements constitute prima facie evidence that a drug has currently accepted medical use in treatment in the United States. In the interest of total clarity, let me emphasize those proofs that are irrelevant to the determination of currently accepted medical use, and that will not be considered by the Administrator:

(I) Isolated case reports;

(ii) Clinical impressions of practitioners;

(iii) Opinions of persons not qualified by scientific training and experience to evaluate the safety and effectiveness of the substance at issue;

(iv) Studies or reports so lacking in detail as to preclude responsible scientific evaluation;

(v) Studies or reports involving drug substances other than the precise substance at issue;

(vi) Studies or reports involving the substance at issue combined with other drug substances;

(vii) Studies conducted by persons not qualified by scientific training and experience to evaluate the safety and effectiveness of the substance at issue;

(viii) Opinions of experts based entirely on unrevealed or unspecified information

(ix) Opinions of experts based entirely on theoretical evaluations of safety or effectiveness.

Bad Medicine By Any Standard

My predecessor as DEA Administrator developed and relied upon an eight-point test to determine whether marijuana has accepted medical uses. 54 FR 53783 (December 29, 1989):

1.Scientifically determined and accepted knowledge of its chemistry;

2.The toxicology and pharmacology of the substance in animals;

3.Establishment of its effectiveness in humans through scientifically designed clinical trials;

4.General availability of the substance and information regarding the substance and its use;

5.Recognition of its clinical use in generally accepted pharmacopeia, medical references, journals or textbooks;

6.Specific indications for the treatment of recognized disorders;

7.Recognition of the use of the substance by organizations or associations of physicians; and

8.Recognition and use of the substance by a substantial segment of the medical practitioners

in the United States.

The Court of Appeals remanded the decision of my predecessor for clarification of what role factors (4), (5) and (8) of the initial eight-point test played in his reasoning. For ease of discussion, these factors can be divided as follows:

(4) (a) General availability of the substance...;

(4) (b) General availability of...information regarding the substance and its use;

(5) Recognition of its clinical use in generally accepted pharmacopeia; medical references, journals or textbooks;

(8)(a) Recognition...of the substance by a substantial segment of the medical practitioners in the United States; and

(8) (b) [U]se of the substance by a substantial segment of the medical practitioners in theUnited States.

I have found no evidence indicating initial factors (4) (a) or (8) (b) played any role in my predecessor’s decision. In light of my understanding of the legal standard involved, these factors are irrelevant to whether marijuana has a currently a ccepted medical use.

My predecessor emphasized the lack of scientific evidence of marijuana’s effectiveness, and the limited data available on its risks, as reflected in the published scientific studies. He also emphasized the importance of this data to the conclusi ons reached by experts concerning the drug. 54 FR 53783. I take this to mean that, under initial factor (4) (b), he believed the information available to experts is insufficient for them responsibly and fairly to conclude that marijuana is safe and effec tive for use as medicine

Marijuana is not recognized as medicine in generally accepted pharmacopeia, medical references and textbooks, as noted by my predecessor. 54 FR 53784. I take this to mean, under initial factor (5), that he determined that marijuana’s chemistry is neither known, no reproducible, as evidenced by its absence from the official pharmacopeia. Finally, my predecessor concluded, under initial factor (8) (a), that the vast majority of physicians does not accept marijuana as having medical use. 54 FR 5 3784. Along the way, he found that highly respected oncologists and antiemetic researchers reject marijuana for use in controlling nausea and vomiting, 54 FR 5377, that experts experienced in researching glaucoma medications reject marijuana for use in t reating glaucoma, 54 FR 53779, and that noted neurologists who specialize in treating and conducting research in spasticity reject marijuana for use by MS patients, 54 FR 53780. I take this to mean my predecessor found no national consensus of qualified experts accepts marijuana’s value as medicine.

Certainly I cannot know my predecessor’s unstated reasoning. However, I have reviewed the entire record de novo, and I am convinced that his application of the initial eight-point test to this record correctly resulted in the conclusion that mar ijuana has no currently accepted medical use in treatment in the United States. Therefore, I adopt in their entirety the findings of facts and conclusions of law reached by the former Administrator in his final order of December 21, 1989, 54 FR 53767.

Pursuant to the remand of the Court of Appeals, I have condensed and clarified the initial standard into a five-point test. My application of the refined, five-point test to this record is set out briefly below.

First, marijuana’s chemistry is neither fully known, nor reproducible. Thus far, over 400 different chemicals have been identified in the plant. The proportions and concentrations differ from plant to plant, depending on growing conditions, age of the plant, harvesting and storage factors. THC levels can vary from less than 0.2% to over 10%. It is now known how smoking or burning the plant material affects the composition of all these chemicals. It is not possible to reproduce the drug in dos ages which can be considered standardized by any currently accepted scientific criteria. Marijuana is not recognized in any current edition of the official compendia. 21 U.S.C. 321(j).

Second, adequate safety studies have not been done. All reasonably applicable pharmacological and toxicological studies have not been carried out. Most of the chronic animal studies have been conducted with oral or intravenous THC, not with marijuan a. Pharmacological data on marijuana’s bioavailability, metabolic pathways and pharmacokinetics is inadequate. Studies in humans are too small and too few. Sophisticated epidemiological studies of marijuana use in large populations are required, si milar to those done for tobacco use. Far too many questions remain unknown for experts fairly and responsibly to conclude marijuana is safe for any use.

Third, there are no adequate, well-controlled scientific studies proving marijuana is effectivefor anything.

Fourth, marijuana is not accepted for medical use in treatment by even a respectable minority, much less a consensus, of experts trained to evaluate drugs. The FDA’s expert drug evaluators have rejected marijuana for medical use. No NDA has bee n approved by FDA for marijuana. The testimony of nationally recognized experts overwhelmingly rejects marijuana as medicine, compared to the scientifically empty testimony of the psychiatrists, a wellness counselor and general practitioners presented by NORML.

Fifth, given my conclusions on points one, two and three, it follows that the published scientific evidence is not adequate to permit experts to fairly and responsibly conclude that marijuana is safe and effective for use in humans.

A failure to meet just one of the five points precludes a drug from having a currently accepted medical use. Marijuana fails all five points of the test.

NORML has argued, unsuccessfully, that the legal standard for currently accepted medical use should be whether a respectable minority of physicians accepts the drug. The key to this medical malpractice defense is that the minority opinion must be rec ognized as respectable, as competent, by members of the profession.

In the absence of reliable evidence adequately establishing marijuana’s chemistry, pharmacology, toxicology and effectiveness, no responsible physician could conclude that marijuana is safe and effective for medical use. To quote Doctor Kenneth P. Johnson, Chairman of the Department of Neurology at the University of Maryland, and the author of over 100 scientific and medical articles on MS: “To conclude that marijuana is therapeutically effective without conducting rigorous testing would be professionally irresponsible.”

By any modern scientific standard, marijuana is no medicine.

List of Subjects in 21 CRF Part 1308

Administrative practice and procedure, Drug traffic control, Narcotics, Dangerous drugs.

Under the authority vested in the Attorney General by section 201(a) of the Controlled Substances Act, 21 U.S.C. 811(a), and delegated to the Administrator of the Drug Enforcement Administration by regulations of the Department of Justice, 28 CFR 0.1 00(b), the Administrator hereby orders that marijuana remain in Schedule I as listed in 21 CFR 1308.11(d) (14).

Dated: March 18, 1992

Robert C. Bonner

Administrator




Link

The subjective experience of punishment

Friend of PFP has an intriguing article on sensitivity to punishment and punitive practices here.

Abstract:
Suppose two people commit the same crime and are sentenced to equal terms in the same prison facility. I argue that they have identical punishments in name only. One may experience incarceration as challenging but tolerable while the other is thoroughly tormented by it. Our sentencing policies seek to equalize the duration of their incarceration, yet largely ignore the differences in their experiences of isolation, stigma, and confinement. In this article, I argue that, according to our prevailing theories of punishment, the subjective experience of punishment matters. There is, therefore, a disconnect between our punishment practices and our best attempts to justify those practices.

There are three possible responses. First, we could try to modify or expand our theories to avoid the obligation to calibrate punishment. I show why this approach is unlikely to succeed. Second, we could conclude that, even though we ought to calibrate our punishments, doing so would be too costly or difficult to administer. This response is too hasty. In civil litigation, we do make subjective assessments of damages. Advances in neuroscience may someday make these assessments more accurate and less expensive. Even if we cannot individually calibrate punishments, we can surely enact sentencing policies that are more subjectively-sensitive than the policies we have now. We are left, then, with only the third response: to recognize that subjective experience matters in assessments of punishment severity and to take at least modest steps toward calibrating punishment, either through individual measurement or, more feasibly, by enacting punishment policies that are subjectively sensitive.

Hick on suffering

John Hick on suffering

by suffering we mean that state of mind in which we wish violent or obsessively that our situation were otherwise. such a state of mind involves memory and anticipation, the capacity to imagine alternatives, and (in man) a moral conscience. For the characteristic elements of human suffering are such relatively complex and high-level modes of consciousness as regret and remorse; anxiety and despair; guilt, shame, and embarrassment; the loss of someone loved, the sense of rejection, of frustrated wishes, and of failure. These all differ from physical pain in that they refer beyond the present moment. To be miserable is to be aware of a larger context of existence than one's immediate physical sensations, and to be overcome by the anguished wish that this wider situation were other than it is. [Evil and the God of Love, pp.354-5]

Two questions:
(1) Is this a privation account of suffering's badness in any traditional sense?

(2) He certainly means that suffering is (usually?) worse than physical pain alone. But how broad a time span does he have in mind? That is, it's plausible that over a week long period, suffering --as distinct from physical pain-- might be intrinsically worse. But could he plausibly say this about a stubbed toe 2 seconds after impact?

Pics of pain

Check out some pain art: PainExhibit.com

Carnival of PAIN!!!!!

The always excellent and informative How to Cope with Pain carnival for January is up here. Check it out.

Efficacy of morphine

ScienceDaily (Feb. 3, 2008) — Opioids, such as morphine, are effective and widely used drugs for the control of pain.

However, tolerance to opioids can develop with repeated administration (that is, higher and higher doses of the drug are required to achieve the same level of pain relief).

Nonetheless, there is some evidence to suggest that tolerance to opiods does not develop when they are used to treat individuals with diseases that are accompanied by inflammation.

Support for this hypothesis has now been provided by Christian Zöllner and colleagues from Charité--Universitätsmedizin Berlin, Germany, who found that peripheral tolerance to morphine did not develop in the chronically inflamed paws of rats.

Furthermore, blocking the action of endogenous opioid compounds in the inflamed tissue enabled tolerance to morphine to develop.

These data indicated that under conditions of chronic pain, endogenous opioid compounds prevent morphine from causing tolerance, inferring that the use of peripherally acting opioids for the prolonged treatment of inflammatory diseases such as chronic arthritis, inflammatory neuropathy, and cancer is not necessarily accompanied by opioid tolerance.

Journal of Clinical Investigation (2008, February 3). Managing Chronic Pain: When Does Morphine Become Less Effective?. ScienceDaily. Retrieved February 6, 2008, from http://www.sciencedaily.com­ /releases/2008/02/080203101431.htm#

Irritable Bowel Syndrome and sexual abuse

Important.

ScienceDaily (Feb. 3, 2008) — UCLA and University of North Carolina researchers have found that women with irritable bowel syndrome (IBS) who have experienced sexual and/or physical abuse may have a heightened brain response to pain that makes them more sensitive to abdominal discomfort. IBS is a condition that affects 10 to 15 percent of the population and causes gastrointestinal discomfort along with diarrhea, constipation or both.

Researchers used brain imaging to show that patients with IBS who also had a background of abuse were not as able to turn off a pain modulation mechanism in the brain as effectively as were IBS patients who had not suffered abuse.

According to previous studies, more than 50 percent of patients with IBS have been physically or sexually abused at some time in their lives. The new finding may help explain why those in this subset of IBS patients experience greater pain and poorer health outcomes than others with the disorder.

Such insight provides a greater understanding of how the disorder develops and may offer new pathways for treatment. Brain imaging studies were performed at the UCLA Brain Mapping Center.

The research appears in the Feb. 1 online edition of the journal Gastroenterology. Authors include Dr. Emeran Mayer, professor of medicine, David Geffen School of Medicine at UCLA; Dr. Douglas Drossman, professor of medicine, and Dr. Yehuda Ringel, lead study author and assistant professor of medicine, both at the University of North Carolina at Chapel Hill.

The study was funded by the National Institutes of Health (NIDDK and NCCAM).

Link

University of California - Los Angeles (2008, February 3). Abuse History Affects Pain Regulation In Women With Irritable Bowel Syndrome. ScienceDaily. Retrieved February 6, 2008, from http://www.sciencedaily.com­ /releases/2008/02/080201085752.htm

24 gets a lesson in torture from the experts

24 gets a lesson in torture from the experts

Their advice: Make the scenes more realistic, not bloodier. And don't rely on tidy conclusions.

By Martin Miller, Times Staff Writer
February 13, 2007

Hollywood is notorious for its meetings, but even by L.A. standards this one was unusual.

A few steps away from the CTU set of Fox's "24," an unlikely alliance of human rights activists, the dean of the U.S. Military Academy at West Point and veteran interrogators with experience stretching from Saigon to Abu Ghraib gathered around two tables in mid-November. The group was there to meet with some of the creative forces behind "24," one of television's most successful serialized dramas, famous for its relentless derring-do depiction of an American counter-terrorism unit.

The East Coast crowd didn't fly into town to pitch another quasi-military action series, but rather to advance a simple plea: Make your torture scenes more authentic.

By that, they did not mean bloodier or more savage. Instead, they wanted "24" to show torture subjects taking weeks or months to break, spitting out false or unreliable intelligence, and even dying. As they do in the real world.

"We're not opposed to having torture on television, but 98% of the time when it is shown, it's 'Bing, bang, boom,' and it works," said David Danzig, director of the Prime Time Torture Project for the New York-based organization Human Rights First. "Frankly, it's unrealistic and it's kind of boring."

More troubling, the disparate group told "24" writers and executive producers, are the social and political consequences of television's current version of torture and who is performing it. Since the terrorist attacks of Sept. 11, 2001, prime-time television has seen a surge of torture sequences.

From 1996 to 2001, there were 102 scenes of torture, according to the Parents Television Council. But from 2002 to 2005, that figured had jumped to 624, they said. "24" has accounted for 67 such scenes during its first five seasons, making it No. 1 in torture depictions, according to the watchdog group.

The increase in quantity is not the only difference. During this uptick in violence, the torturer's identity was more likely to be an American hero like "24's" Jack Bauer (Kiefer Sutherland) than the Nazis and drug dealers in pre-9/11 days. The action-packed show, which drew a hefty 13.6 million viewers last week, was among the first and certainly the most prominent to have its main character choke, stab or electrocute — among other techniques — information out of villains.

"It's unthinkable that Capt. Kirk would torture someone," said Danzig.

While hardly alone in the entertainment universe of television and movies in portraying torture, shows like "24" and later ABC's "Lost" were sought out by the human rights activists because of their popularity, both here and around the world. Even in Iraq, such series can sometimes substitute for or trump military training, and transmit a dark message to soldiers.

"Everyone wanted to be a Hollywood interrogator," said Tony Lagouranis, a former U.S. Army interrogator at Abu Ghraib prison in Iraq who spoke to the creative teams from "24" and "Lost." "That's all people did in Iraq was watch DVDs of television shows and movies. What we learned in military schools didn't apply anymore."

At the infamous Iraqi prison for nearly all of 2004, Lagouranis soon left the military and went to the media to detail the torture, largely ineffective, that was inflicted upon the inmates. He said that his actions — sleep deprivation, hypothermia, dietary manipulations and use of dogs, all illegal according to American and international law — were relatively mild compared with what else was being practiced.

"It's an ugly thing," said Lagouranis. "You don't get neat, tidy answers like you do on television."

The Hollywood meeting, a spirited back-and-forth discussion with its moments of defensiveness by most accounts, lasted a couple of hours and was followed by an Italian lunch. For the "24" team, the afternoon served as a rare opportunity for it to debrief real-world interrogators, but it also stirred up television's age-old tension between entertainment and social responsibility.

"The meeting was an eye-opener," said "24" executive producer Howard Gordon. "We hadn't really thought a lot about torture as anything more than a dramatic device."

As a result, Gordon has been filmed for a Humans Rights First video about torture that is expected to be used next fall at West Point and perhaps other military organizations as well. Executive producers from "Lost" also agreed to be in the video, which was shot last month.

Human Rights First, a nonprofit group with an annual budget of about $7 million, plans to continue pushing the point. They are in talks with the Writers Guild of America to bring in its team of former interrogators to discuss real-world experiences with Hollywood writers.

It's typically a cold, snowy day in Hollywood when time-pressured, well-moneyed producers agree to face-to-face talks with a nonprofit group armed with an agenda inherently critical of their shows' themes. But like most successful Hollywood ventures, relationships and serendipity played a big part in bringing the sides together.

Last year, Human Rights First was contacted by David Zabel, an executive producer of NBC's "ER," who was fact-checking a show story thread about the crisis in Darfur. The connection ultimately proved fortuitous. Zabel knew his counterparts at "24" and "Lost," whose ensemble includes a sympathetic torturer named Sayid, and introduced them to the human rights group.

Meanwhile, Danzig, whose father was former secretary of the Navy under the Clinton administration, helped recruit military interrogators and West Point's dean to travel to Hollywood.

"I was pretty skeptical to begin with," said retired Col. Stu Herrington, who worked U.S. Army interrogations from Vietnam to the first Gulf War. "I mean, these guys have a load of Emmys, a top show. Why should they listen to us? Their business model is based upon a shtick where Jack tortures the hell out of someone and they save the world."

The "24" team immediately challenged that view with openness and candor. It's true that Jack Bauer has tortured suspects, but he's no cartoon character, Gordon argued. "Our opinion is Jack Bauer hurts people and whether right or wrong, he's suffering for it," said Gordon.

Bauer, himself the victim of horrible violence, clearly is traumatized by what he's forced to do to others in the name of national security. In one instance this season, while in pursuit of information on the whereabouts of a suitcase nuke in Los Angeles, Bauer didn't have the stomach to torture a suspect. Later, however, the action hero recovered his steely nerve and put a plastic bag over the head of his evil brother for information.

To Gordon and the "Lost" producers, it's almost absurd that they should have to make clear that the fictionalized torture events are intended for anything other than entertainment.

" '24' is a television show with its own dramatic requirements which are reductive and unreal," said Gordon. "And to that extent, we would like to participate in any way we can with disabusing young kids in the military of any confusion over that."

CBS' "The Unit" is another successful prime-time show that revolves around an American counter-terrorism unit. However, the show has consciously avoided having its "good guys" torture.

"We've tried to show the futility of it and how it hurts both parties," said Shawn Ryan, an executive producer of "The Unit," which has devoted a couple episodes to the topic. "But I realize that safety comes first for people, and things like civil freedoms can become endangered in times of war and fear. And we live in a time of war and fear. I mean, how much useful information was pulled from Abu Ghraib? Probably none. But how much damage did it do to America around the world?"

In extremely rare instances, torture may actually work, said Herrington, who notes it's still practiced in many other countries. But what is far more likely to happen in such cases is the torturer will receive unreliable information — or will lose their suspect completely.

"A human being isn't a light switch," said Joe Navarro, a former counterintelligence agent with the Federal Bureau of Investigation. "We don't really know when someone will go into shock or when they will faint or even die."

Real-life interrogations are much more about building trust or staging psychological games to induce a subject to talk — and keep talking, added Navarro.

Sympathetic with the human rights group's agenda, producers for both "24" and "Lost" agreed to be interviewed on camera for an educational video for the military. Taping a public service message is one thing. Tinkering with the fragile, almost mystical, insides of a hit television show is another.

Producers for both shows balked at saying whether story lines would actually shift as a result of their discussions.

"It's a lot more dynamic to see somebody tortured than to win someone's trust," said Carlton Cuse, an executive producer of "Lost." "Particularly in the framework of an action/adventure show like 'Lost' and '24.' "

Link

Krauthammer: The Truth about Torture

Remember this little bit of sunshine and rainbows?

The Truth about Torture
It's time to be honest about doing terrible things.
by Charles Krauthammer
12/05/2005, Volume 011, Issue 12


DURING THE LAST FEW WEEKS in Washington the pieties about torture have lain so thick in the air that it has been impossible to have a reasoned discussion. The McCain amendment that would ban "cruel, inhuman, or degrading" treatment of any prisoner by any agent of the United States sailed through the Senate by a vote of 90-9. The Washington establishment remains stunned that nine such retrograde, morally inert persons--let alone senators--could be found in this noble capital.

Now, John McCain has great moral authority on this issue, having heroically borne torture at the hands of the North Vietnamese. McCain has made fine arguments in defense of his position. And McCain is acting out of the deep and honorable conviction that what he is proposing is not only right but is in the best interest of the United States. His position deserves respect. But that does not mean, as seems to be the assumption in Washington today, that a critical analysis of his "no torture, ever" policy is beyond the pale.

Let's begin with a few analytic distinctions. For the purpose of torture and prisoner maltreatment, there are three kinds of war prisoners:

First, there is the ordinary soldier caught on the field of battle. There is no question that he is entitled to humane treatment. Indeed, we have no right to disturb a hair on his head. His detention has but a single purpose: to keep him hors de combat. The proof of that proposition is that if there were a better way to keep him off the battlefield that did not require his detention, we would let him go. Indeed, during one year of the Civil War, the two sides did try an alternative. They mutually "paroled" captured enemy soldiers, i.e., released them to return home on the pledge that they would not take up arms again. (The experiment failed for a foreseeable reason: cheating. Grant found that some paroled Confederates had reenlisted.)

Because the only purpose of detention in these circumstances is to prevent the prisoner from becoming a combatant again, he is entitled to all the protections and dignity of an ordinary domestic prisoner--indeed, more privileges, because, unlike the domestic prisoner, he has committed no crime. He merely had the misfortune to enlist on the other side of a legitimate war. He is therefore entitled to many of the privileges enjoyed by an ordinary citizen--the right to send correspondence, to engage in athletic activity and intellectual pursuits, to receive allowances from relatives--except, of course, for the freedom to leave the prison.

Second, there is the captured terrorist. A terrorist is by profession, indeed by definition, an unlawful combatant: He lives outside the laws of war because he does not wear a uniform, he hides among civilians, and he deliberately targets innocents. He is entitled to no protections whatsoever. People seem to think that the postwar Geneva Conventions were written only to protect detainees. In fact, their deeper purpose was to provide a deterrent to the kind of barbaric treatment of civilians that had become so horribly apparent during the first half of the 20th century, and in particular, during the Second World War. The idea was to deter the abuse of civilians by promising combatants who treated noncombatants well that they themselves would be treated according to a code of dignity if captured--and, crucially, that they would be denied the protections of that code if they broke the laws of war and abused civilians themselves.

Breaking the laws of war and abusing civilians are what, to understate the matter vastly, terrorists do for a living. They are entitled, therefore, to nothing. Anyone who blows up a car bomb in a market deserves to spend the rest of his life roasting on a spit over an open fire. But we don't do that because we do not descend to the level of our enemy. We don't do that because, unlike him, we are civilized. Even though terrorists are entitled to no humane treatment, we give it to them because it is in our nature as a moral and humane people. And when on rare occasions we fail to do that, as has occurred in several of the fronts of the war on terror, we are duly disgraced.

The norm, however, is how the majority of prisoners at Guantanamo have been treated. We give them three meals a day, superior medical care, and provision to pray five times a day. Our scrupulousness extends even to providing them with their own Korans, which is the only reason alleged abuses of the Koran at Guantanamo ever became an issue. That we should have provided those who kill innocents in the name of Islam with precisely the document that inspires their barbarism is a sign of the absurd lengths to which we often go in extending undeserved humanity to terrorist prisoners.

Third, there is the terrorist with information. Here the issue of torture gets complicated and the easy pieties don't so easily apply. Let's take the textbook case. Ethics 101: A terrorist has planted a nuclear bomb in New York City. It will go off in one hour. A million people will die. You capture the terrorist. He knows where it is. He's not talking.

Question: If you have the slightest belief that hanging this man by his thumbs will get you the information to save a million people, are you permitted to do it?

Now, on most issues regarding torture, I confess tentativeness and uncertainty. But on this issue, there can be no uncertainty: Not only is it permissible to hang this miscreant by his thumbs. It is a moral duty.

Yes, you say, but that's an extreme and very hypothetical case. Well, not as hypothetical as you think. Sure, the (nuclear) scale is hypothetical, but in the age of the car-and suicide-bomber, terrorists are often captured who have just set a car bomb to go off or sent a suicide bomber out to a coffee shop, and you only have minutes to find out where the attack is to take place. This "hypothetical" is common enough that the Israelis have a term for precisely that situation: the ticking time bomb problem.

And even if the example I gave were entirely hypothetical, the conclusion--yes, in this case even torture is permissible--is telling because it establishes the principle: Torture is not always impermissible. However rare the cases, there are circumstances in which, by any rational moral calculus, torture not only would be permissible but would be required (to acquire life-saving information). And once you've established the principle, to paraphrase George Bernard Shaw, all that's left to haggle about is the price. In the case of torture, that means that the argument is not whether torture is ever permissible, but when--i.e., under what obviously stringent circumstances: how big, how imminent, how preventable the ticking time bomb.

That is why the McCain amendment, which by mandating "torture never" refuses even to recognize the legitimacy of any moral calculus, cannot be right. There must be exceptions. The real argument should be over what constitutes a legitimate exception.

Let's Take An Example that is far from hypothetical. You capture Khalid Sheikh Mohammed in Pakistan. He not only has already killed innocents, he is deeply involved in the planning for the present and future killing of innocents. He not only was the architect of the 9/11 attack that killed nearly three thousand people in one day, most of them dying a terrible, agonizing, indeed tortured death. But as the top al Qaeda planner and logistical expert he also knows a lot about terror attacks to come. He knows plans, identities, contacts, materials, cell locations, safe houses, cased targets, etc. What do you do with him?

We have recently learned that since 9/11 the United States has maintained a series of "black sites" around the world, secret detention centers where presumably high-level terrorists like Khalid Sheikh Mohammed have been imprisoned. The world is scandalized. Black sites? Secret detention? Jimmy Carter calls this "a profound and radical change in the . . . moral values of our country." The Council of Europe demands an investigation, calling the claims "extremely worrying." Its human rights commissioner declares "such practices" to constitute "a serious human rights violation, and further proof of the crisis of values" that has engulfed the war on terror. The gnashing of teeth and rending of garments has been considerable.

I myself have not gnashed a single tooth. My garments remain entirely unrent. Indeed, I feel reassured. It would be a gross dereliction of duty for any government not to keep Khalid Sheikh Mohammed isolated, disoriented, alone, despairing, cold and sleepless, in some godforsaken hidden location in order to find out what he knew about plans for future mass murder. What are we supposed to do? Give him a nice cell in a warm Manhattan prison, complete with Miranda rights, a mellifluent lawyer, and his own website? Are not those the kinds of courtesies we extended to the 1993 World Trade Center bombers, then congratulated ourselves on how we "brought to justice" those responsible for an attack that barely failed to kill tens of thousands of Americans, only to discover a decade later that we had accomplished nothing--indeed, that some of the disclosures at the trial had helped Osama bin Laden avoid U.S. surveillance?

Have we learned nothing from 9/11? Are we prepared to go back with complete amnesia to the domestic-crime model of dealing with terrorists, which allowed us to sleepwalk through the nineties while al Qaeda incubated and grew and metastasized unmolested until on 9/11 it finished what the first World Trade Center bombers had begun?

Let's assume (and hope) that Khalid Sheikh Mohammed has been kept in one of these black sites, say, a cell somewhere in Romania, held entirely incommunicado and subjected to the kind of "coercive interrogation" that I described above. McCain has been going around praising the Israelis as the model of how to deal with terrorism and prevent terrorist attacks. He does so because in 1999 the Israeli Supreme Court outlawed all torture in the course of interrogation. But in reality, the Israeli case is far more complicated. And the complications reflect precisely the dilemmas regarding all coercive interrogation, the weighing of the lesser of two evils: the undeniable inhumanity of torture versus the abdication of the duty to protect the victims of a potentially preventable mass murder.

In a summary of Israel's policies, Glenn Frankel of the Washington Post noted that the 1999 Supreme Court ruling struck down secret guidelines established 12 years earlier that allowed interrogators to use the kind of physical and psychological pressure I described in imagining how KSM might be treated in America's "black sites."

"But after the second Palestinian uprising broke out a year later, and especially after a devastating series of suicide bombings of passenger buses, cafes and other civilian targets," writes Frankel, citing human rights lawyers and detainees, "Israel's internal security service, known as the Shin Bet or the Shabak, returned to physical coercion as a standard practice." Not only do the techniques used "command widespread support from the Israeli public," but "Israeli prime ministers and justice ministers with a variety of political views," including the most conciliatory and liberal, have defended these techniques "as a last resort in preventing terrorist attacks."

Which makes McCain's position on torture incoherent. If this kind of coercive interrogation were imposed on any inmate in the American prison system, it would immediately be declared cruel and unusual, and outlawed. How can he oppose these practices, which the Israelis use, and yet hold up Israel as a model for dealing with terrorists? Or does he countenance this kind of interrogation in extreme circumstances--in which case, what is left of his categorical opposition to inhuman treatment of any kind?

But let us push further into even more unpleasant territory, the territory that lies beyond mere coercive interrogation and beyond McCain's self-contradictions. How far are we willing to go?

This "going beyond" need not be cinematic and ghoulish. (Jay Leno once suggested "duct tape" for Khalid Sheikh Mohammed. See photo.) Consider, for example, injection with sodium pentathol. (Colloquially known as "truth serum," it is nothing of the sort. It is a barbiturate whose purpose is to sedate. Its effects are much like that of alcohol: disinhibiting the higher brain centers to make someone more likely to disclose information or thoughts that might otherwise be guarded.) Forcible sedation is a clear violation of bodily integrity. In a civilian context it would be considered assault. It is certainly impermissible under any prohibition of cruel, inhuman, or degrading treatment.

Let's posit that during the interrogation of Khalid Sheikh Mohammed, perhaps early on, we got intelligence about an imminent al Qaeda attack. And we had a very good reason to believe he knew about it. And if we knew what he knew, we could stop it. If we thought we could glean a critical piece of information by use of sodium pentathol, would we be permitted to do so?

Less hypothetically, there is waterboarding, a terrifying and deeply shocking torture technique in which the prisoner has his face exposed to water in a way that gives the feeling of drowning. According to CIA sources cited by ABC News, Khalid Sheikh Mohammed "was able to last between two and 2 1/2 minutes before begging to confess." Should we regret having done that? Should we abolish by law that practice, so that it could never be used on the next Khalid Sheikh Mohammed having thus gotten his confession?

And what if he possessed information with less imminent implications? Say we had information about a cell that he had helped found or direct, and that cell was planning some major attack and we needed information about the identity and location of its members. A rational moral calculus might not permit measures as extreme as the nuke-in-Manhattan scenario, but would surely permit measures beyond mere psychological pressure.

Such a determination would not be made with an untroubled conscience. It would be troubled because there is no denying the monstrous evil that is any form of torture. And there is no denying how corrupting it can be to the individuals and society that practice it. But elected leaders, responsible above all for the protection of their citizens, have the obligation to tolerate their own sleepless nights by doing what is necessary--and only what is necessary, nothing more--to get information that could prevent mass murder.

GIVEN THE GRAVITY OF THE DECISION, if we indeed cross the Rubicon--as we must--we need rules. The problem with the McCain amendment is that once you have gone public with a blanket ban on all forms of coercion, it is going to be very difficult to publicly carve out exceptions. The Bush administration is to be faulted for having attempted such a codification with the kind of secrecy, lack of coherence, and lack of strict enforcement that led us to the McCain reaction.

What to do at this late date? Begin, as McCain does, by banning all forms of coercion or inhuman treatment by anyone serving in the military--an absolute ban on torture by all military personnel everywhere. We do not want a private somewhere making these fine distinctions about ticking and slow-fuse time bombs. We don't even want colonels or generals making them. It would be best for the morale, discipline, and honor of the Armed Forces for the United States to maintain an absolute prohibition, both to simplify their task in making decisions and to offer them whatever reciprocal treatment they might receive from those who capture them--although I have no illusion that any anti-torture provision will soften the heart of a single jihadist holding a knife to the throat of a captured American soldier. We would impose this restriction on ourselves for our own reasons of military discipline and military honor.

Outside the military, however, I would propose, contra McCain, a ban against all forms of torture, coercive interrogation, and inhuman treatment, except in two contingencies: (1) the ticking time bomb and (2) the slower-fuse high-level terrorist (such as KSM). Each contingency would have its own set of rules. In the case of the ticking time bomb, the rules would be relatively simple: Nothing rationally related to getting accurate information would be ruled out. The case of the high-value suspect with slow-fuse information is more complicated. The principle would be that the level of inhumanity of the measures used (moral honesty is essential here--we would be using measures that are by definition inhumane) would be proportional to the need and value of the information. Interrogators would be constrained to use the least inhumane treatment necessary relative to the magnitude and imminence of the evil being prevented and the importance of the knowledge being obtained.

These exceptions to the no-torture rule would not be granted to just any nonmilitary interrogators, or anyone with CIA credentials. They would be reserved for highly specialized agents who are experts and experienced in interrogation, and who are known not to abuse it for the satisfaction of a kind of sick sadomasochism Lynndie England and her cohorts indulged in at Abu Ghraib. Nor would they be acting on their own. They would be required to obtain written permission for such interrogations from the highest political authorities in the country (cabinet level) or from a quasi-judicial body modeled on the Foreign Intelligence Surveillance Court (which permits what would ordinarily be illegal searches and seizures in the war on terror). Or, if the bomb was truly ticking and there was no time, the interrogators would be allowed to act on their own, but would require post facto authorization within, say, 24 hours of their interrogation, so that they knew that whatever they did would be subject to review by others and be justified only under the most stringent terms.

One of the purposes of these justifications would be to establish that whatever extreme measures are used are for reasons of nothing but information. Historically, the torture of prisoners has been done for a variety of reasons apart from information, most prominently reasons of justice or revenge. We do not do that. We should not do that. Ever. Khalid Sheikh Mohammed, murderer of 2,973 innocents, is surely deserving of the most extreme suffering day and night for the rest of his life. But it is neither our role nor our right to be the agents of that suffering. Vengeance is mine, sayeth the Lord. His, not ours. Torture is a terrible and monstrous thing, as degrading and morally corrupting to those who practice it as any conceivable human activity including its moral twin, capital punishment.

If Khalid Sheikh Mohammed knew nothing, or if we had reached the point where his knowledge had been exhausted, I'd be perfectly prepared to throw him into a nice, comfortable Manhattan cell and give him a trial to determine what would be fit and just punishment. But aslong as he had useful information, things would be different.

Very different. And it simply will not do to take refuge in the claim that all of the above discussion is superfluous because torture never works anyway. Would that this were true. Unfortunately, on its face, this is nonsense. Is one to believe that in the entire history of human warfare, no combatant has ever received useful information by the use of pressure, torture, or any other kind of inhuman treatment? It may indeed be true that torture is not a reliable tool. But that is very different from saying that it is never useful.

The monstrous thing about torture is that sometimes it does work. In 1994, 19-year-old Israeli corporal Nachshon Waxman was kidnapped by Palestinian terrorists. The Israelis captured the driver of the car used in the kidnapping and tortured him in order to find where Waxman was being held. Yitzhak Rabin, prime minister and peacemaker, admitted that they tortured him in a way that went even beyond the '87 guidelines for "coercive interrogation" later struck down by the Israeli Supreme Court as too harsh. The driver talked. His information was accurate. The Israelis found Waxman. "If we'd been so careful to follow the ['87] Landau Commission [which allowed coercive interrogation]," explained Rabin, "we would never have found out where Waxman was being held."

In the Waxman case, I would have done precisely what Rabin did. (The fact that Waxman's Palestinian captors killed him during the Israeli rescue raid makes the case doubly tragic, but changes nothing of the moral calculus.) Faced with a similar choice, an American president would have a similar obligation. To do otherwise--to give up the chance to find your soldier lest you sully yourself by authorizing torture of the person who possesses potentially lifesaving information--is a deeply immoral betrayal of a soldier and countryman. Not as cosmically immoral as permitting a city of one's countrymen to perish, as in the Ethics 101 case. But it remains, nonetheless, a case of moral abdication--of a kind rather parallel to that of the principled pacifist. There is much to admire in those who refuse on principle ever to take up arms under any conditions. But that does not make pure pacifism, like no-torture absolutism, any less a form of moral foolishness, tinged with moral vanity. Not reprehensible, only deeply reproachable and supremely impracticable. People who hold such beliefs are deserving of a certain respect. But they are not to be put in positions of authority. One should be grateful for the saintly among us. And one should be vigilant that they not get to make the decisions upon which the lives of others depend.

WHICH BRINGS US to the greatest irony of all in the torture debate. I have just made what will be characterized as the pro-torture case contra McCain by proposing two major exceptions carved out of any no-torture rule: the ticking time bomb and the slow-fuse high-value terrorist. McCain supposedly is being hailed for defending all that is good and right and just in America by standing foursquare against any inhuman treatment. Or is he?

According to Newsweek, in the ticking time bomb case McCain says that the president should disobey the very law that McCain seeks to pass--under the justification that "you do what you have to do. But you take responsibility for it." But if torturing the ticking time bomb suspect is "what you have to do," then why has McCain been going around arguing that such things must never be done?

As for exception number two, the high-level terrorist with slow-fuse information, Stuart Taylor, the superb legal correspondent for National Journal, argues that with appropriate legal interpretation, the "cruel, inhuman, or degrading" standard, "though vague, is said by experts to codify . . . the commonsense principle that the toughness of interrogation techniques should be calibrated to the importance and urgency of the information likely to be obtained." That would permit "some very aggressive techniques . . . on that small percentage of detainees who seem especially likely to have potentially life-saving information." Or as Evan Thomas and Michael Hirsh put it in the Newsweek report on McCain and torture, the McCain standard would "presumably allow for a sliding scale" of torture or torture-lite or other coercive techniques, thus permitting "for a very small percentage--those High Value Targets like Khalid Sheikh Mohammed--some pretty rough treatment."

But if that is the case, then McCain embraces the same exceptions I do, but prefers to pretend he does not. If that is the case, then his much-touted and endlessly repeated absolutism on inhumane treatment is merely for show. If that is the case, then the moral preening and the phony arguments can stop now, and we can all agree that in this real world of astonishingly murderous enemies, in two very circumscribed circumstances, we must all be prepared to torture. Having established that, we can then begin to work together to codify rules of interrogation for the two very unpleasant but very real cases in which we are morally permitted--indeed morally compelled--to do terrible things.

Charles Krauthammer is a contributing editor to The Weekly Standard.

© Copyright 2007, News Corporation, Weekly Standard, All Rights Reserved.

The Truth about Torture

Tasers are safe? Oh. Never mind then...

I take it all back. Nothing bad about Tasering people. Just a few good natured 50,000 volt tickles and you're on your way.

Taser stun guns used by the police for law enforcement are safe - the injury rate is low and most injuries appear to be minor, a US study finds.

The electric disablers that hit their target with 50,000 volts are commonly used by US police and are increasingly being used by UK forces.

Human rights experts have expressed concern about the use of the stun gun.

But a Wake Forest University review of 1,000 US cases suggests the risk and severity of injuries is low.

Most injuries were mild, such as scrapes or bruises.

Three of the subjects suffered injuries severe enough to need hospital admission - two had head injuries suffered in falls after Taser use. The third was admitted to hospital two days after arrest with a medical condition of unclear relationship to the Taser.

Two subjects died but autopsy reports suggested neither death was related to the Taser.

Interim results on 597 of the cases were published in Annals of Emergency Medicine in September.

Lead researcher Dr William Bozeman, who received funding from the US National Institute of Justice for the work, said: "This is the largest study to date and the first to detail the medical effects of Tasers under real-world conditions.

"These results support the safety of the device. The injury rate is low and most injuries appear to be minor."

He stressed, however, that the Taser was a weapon and could clearly cause injuries and even deaths.

Amnesty International says Tasers have been linked to more than 70 deaths in America.

When Tasers are fired, two metal barbs connected to the weapon by a thin wire pierce the skin before the charge is delivered.

In the UK, police officers who carry guns have also carried Tasers since 2004. In September 2007, the Home Office extended permission to non-firearms officers in pilot areas.

Amnesty International's Arms Programme Director, Oliver Sprague, said: "Let's not be misled here. Tasers are dangerous electro-shock weapons.

"This is why we are urging the Home Office to review its decision and to ensure that only specialist firearms officers use the Taser in very limited circumstances and only as an alternative to shooting a lethal weapon."

A Home Office spokesman said: "The risk of life-threatening and other serious injuries is considered to be low.

"Tasers have contributed to resolving incidents without injury where otherwise there would have been a real possibility of someone being shot and killed.

"In some cases they have not needed to be fired: drawing them or arcing the Taser has been enough of a deterrent."

In England, a Taser has been used (drawn or fired) in service by the police 851 times, since April 2003.
Link

Taser death in Canada airport

Still think Tasers aren't being misused?

Video footage has been released in Canada showing the last moments of an immigrant who died after being stunned with a Taser by police. Robert Dziekanski, 40, of Pieszyce, Poland, was restrained by police after becoming agitated at Vancouver International Airport on 14 October.Mr Dziekanski, who spoke no English, was declared dead at the scene by an emergency medical team.

The incident is being investigated by police, the airport and the coroner. Police spokesman Cpl Dale Carr said the video was just one piece of evidence, and urged people to wait for the results of the inquest. Mr Dziekanski, a construction worker, was emigrating to Canada to join his mother, who lived in the western province of British Columbia.

The incident has prompted a debate about the use of Taser stun guns by police in Canada. The Canadian Broadcasting Corporation says up to 18 people have died after being stunned by a Taser in Canada since 2003.

The video was shot by Canadian traveller Paul Pritchard and handed over to police, and has only just been returned to him.

It starts before the police arrive, with Mr Dziekanski seen through a glass wall in a customs area. He appears agitated, sweating and breathing heavily. Airport security officials and passengers watch from the other side.

Having landed 10 hours earlier, he is seen pacing back and forth through an automatic door, standing briefly in the doorway with a small folding table, and then later with a chair. At one point, he takes what looks like a laptop computer off a counter and throws it to the ground, and then throws the small table against the glass wall.

Four policemen then walk into view. They walk through the glass doors towards Mr Dziekanski, who turns his back on them. Witnesses say he appeared to pick up a stapler. Seconds later, Mr Dziekanski is stunned by a Taser and falls down screaming and convulsing.

He is stunned a second time, and then the police officers restrain him on the floor. Mr Dziekanski's screams die down, and he is seen lying still. A voice is heard saying "code red", which is code for a medical emergency.

An autopsy found no sign of drugs or alcohol in Mr Dziekanski's system, and failed to pinpoint the cause of death.

Walter Kosteckyj, the victim's family lawyer, said Mr Dziekanski's mother had seen portions of the video and had approved its release to the public. "She had a son in distress, he was looking for help, he was frightened, and he didn't get that help," Mr Kosteckyj said. He said he was disturbed by the video because Mr Dziekanski was not violent.

"I was expecting to see a confrontation, a discussion and things go sideways, then the tasering... That's not what you see," he said.

Mr Dziekanski, who had not flown before, had boarded a plane a day earlier in Germany, and arranged to meet his mother at the baggage carousel in the international terminal.

Neither of them knew the baggage carousel was inside a secure area, with no view of the public arrivals hall area, except for a short distance through sliding glass doors, Mr Kosteckyj said.

No airport, customs or security employees at the airport apparently tried to help either of them, he added. Eventually Mr Dziekanski emerged into the public area, but his mother had left after six hours and Mr Dziekanski apparently panicked, the lawyer said. Link

Pain-Blog Carnival

The always awesome How To Cope With Pain Blog has this month's pain-blog carnival up:

http://www.howtocopewithpain.org/blog/172/pain-carnival/

Your's truly was too busy working on our job search process to contribute...

Compulsions in Tourette's Syndrome

In An Anthropologist On Mars Oliver Sacks describes the compulsions of Tourette's Syndrome:

it is often difficult for Touretters, to see their Tourette's as something external to themselves, because many of the tics and urges may be felt as intentional, as an integral part of the self, the personality, the will. It is quite different, by contrast, with something like Parkinsonism or chorea: these have no quality of selfness or intentionality and are always felt as diseases, as outside the self. Compulsions and tics occupy an intermediate position, seeming sometimes to be an expression of one's personal will, sometimes a coercion of it by another, alien will. These ambiguities are often expressed in the terms people use. Thus the separateness of 'it' and 'I' is sometimes expressed by jocular personifications of the Tourette's: one Touretter I know calls his Tourette's 'Toby,' another 'Mr. T.' By contrast, a Tourettic possession of the self was vividly expressed by one young man in Utah, who wrote to me that he had a Tourettized soul.' [102]

Gitmo operating manual

Important:

A never-before-seen military manual detailing the day-to-day operations of the U.S. military's Guantánamo Bay detention facility has been leaked to the web, affording a rare inside glimpse into the institution where the United States has imprisoned hundreds of suspected terrorists since 2002.

The 238-page document, "Camp Delta Standard Operating Procedures," is dated March 28, 2003. It is unclassified, but designated "For Official Use Only." It hit the web last Wednesday on Wikileaks.org.

[....]

The Camp Delta document (.pdf) includes schematics of the camp, detailed checklists of what "comfort items" such as extra toilet paper can be given to detainees as rewards, six pages of instructions on how to process new detainees, instructions on how to psychologically manipulate prisoners, and rules for dealing with hunger strikes.

"What strikes me is the level of detail for handling all kind of situations, from admission to barbers and burials," says Jamil Dakwar, advocacy director of the ACLU's Human Rights program. Dakwar was in Guantánamo last week for a military-commission hearing.

The Pentagon did not reply to a request for comment on the document.

Dakwar sees hints of Abu Ghraib in a section instructing guards to use dogs to intimidate prisoners. He also raises concerns over a section on the International Committee of the Red Cross, or ICRC, which indicates that some prisoners were hidden from Red Cross representatives.

The manual shows how the military coded each prisoner according to the level of access the Red Cross would have. The four levels are:

* No Access
* Visual Access -- ICRC can only look at a prisoner's physical condition.
* Restricted Access -- ICRC representatives can only ask short questions about the prisoner's health.
* Unrestricted Access

The No Access level troubles Dakwar.

"That actually raises a lot of concerns about the administration's genuineness in terms of allowing ICRC full access, as was promised to the world," Dakwar says. "They are the only organization that has access to the detainees, and this raises a lot of questions."

The ICRC does not make public reports about the conditions in prisons and gulags around the world, but instead meets privately with governments to persuade them to change their policies.

The manual also includes instructions on how to use military dogs to intimidate prisoners.

"MWD (Military Working Dogs) will walk 'Main Street' in Camp Delta during shifts to demonstrate physical presence to detainees," reads a directive in the "Psychological Deterrence" section. "MWD will not be walked through the blocks unless directed by the (Joint Detention Operations Group)."

The document was signed by Maj. Gen. Geoffrey Miller. According to media reports, Miller introduced harsh interrogation methods to Guantánamo, such as shackling detainees into stress positions and using guard dogs to exploit what the former head commander in Iraq Lt. Gen. Ricardo Sanchez referred to as "Arab fear of dogs."

Miller visited Iraq in 2003 to share the Guantánamo methods. Soon after that visit, the infamous Abu Ghraib photos were taken.

President Bush said in 2006 he wanted to close the Guantánamo Bay prison camp. The military is prosecuting some detainees under military-commission rules set by Congress, and trying to repatriate hundreds of others.
Link to Wired story
Link to Wikilinks
Link to pdf of document

Acupuncture for back pain

Acupuncture 'best therapy for back pain'

By Nic Fleming, Science Correspondent

Acupuncture can provide significantly more relief from lower back pain than conventional therapies, scientists say.

The Chinese needle treatment was 74 per cent more likely to lead to a sustained reduction in pain or improved ability to function normally than physiotherapy, medication and advice on exercise, according to German researchers.

Acupuncture 'best therapy for back pain'
Scientists say both acupuncture and
‘sham acupuncture’ are beneficial

However, the study also found "sham acupuncture" — in which needles are applied away from points usually used in traditional Chinese medicine — to be almost as effective, suggesting that the positive effects may have more to do with the way the body deals with pain than with the specific points where the needles are applied.

Dr Michael Haake, of the University of Regensburg in Bad Abbach, whose research was published in the journal Archives of Internal Medicine, said: "Acupuncture gives physicians a promising and effective treatment option for chronic low back pain, with few adverse effects or contra-indications.

"The improvements in all primary and secondary outcome measures were significant and lasted long after completion of treatment. The superiority of both forms of acupuncture suggests a common underlying mechanism that may act on pain generation, transmission of pain signals or processing of pain signals by the central nervous system."

Dr Haake and colleagues carried out a clinical trial involving 1,162 patients who had experienced chronic low back pain for an average of eight years.
advertisement

All participants underwent 10 half-hour sessions in five weeks. One group had acupuncture, while another had sham acupuncture.

The final group had conventional therapy consisting of a combination of medication, physical manipulation and exercise.

A successful response was defined as a 33 per cent reduction in pain or a 12 per cent improvement in ability to function normally. Both were assessed using questionnaires.

Six months after the trial was completed, 47.6 per cent of those in the real acupuncture group had responded to their treatment, compared to 44.2 per cent of the sham acupuncture group and 27.4 per cent in the conventional therapy group.

When a patient goes to see their GP about lower back pain in Britain, the doctor will firstly check for serious conditions, such as tumours or rheumatoid arthritis, before providing advice about exercise and the use of painkillers.

If the problem is not resolved within several weeks, patients are sometimes offered manipulation therapies including chiropractic, osteopathy or physiotherapy.

A survey of 2,240 people with back problems carried out by the charity BackCare in 2005 found that of those who had tried acupuncture 30 per cent said it had no effect, 41 per cent believed it provided only temporary relief and 19 per cent said it provided significant, sustained improvements.

Nia Taylor, the chief executive of BackCare, said: "We know from talking to patients that they are often dissatisfied with the attention they receive from their GPs. So-called alternative therapies such as acupuncture often provide longer consultation periods, and that in itself can be beneficial."

The NHS spends more than £1 billion per year on back pain, including £512?million for hospital treatment, £141 for GP consultations and £150 million on physiotherapy.

Publishers wishing to reproduce photographs on this page should phone 44 (0) 207 538 7505 or e-mail syndication@telegraph.co.uk

Information appearing on telegraph.co.uk is the copyright of Telegraph Media Group Limited and must not be reproduced in any medium without licence. For the full copyright statement see Copyright

http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2007/09/25/nback125.xml

More waterboarding

Even with the fictional narrator this looks pretty horrifying.


Is it torture? Don't forget...

Video of waterboarding

Video of a reporter being waterboarded.



Watch the full story.

And, of course, don't forget this.

The heart of torture

No debate about whether something counts as torture should ignore this passage from Orwell's 1984.

"By itself," he said, "pain is not always enough. There are occasions when a human being will stand out against pain, even to the point of death. But for everyone there is something unendurable --something that cannot be contemplated. Courage and cowardice are not involved. If you are falling from a height it is not cowardly to clutch at a rope. If you have come up from deep water it is not cowardly to fill your lungs with air. It is merely an instinct which cannot be disobeyed. It is the same with the rats. For you, they are unendurable. They are a form of pressure that you cannot withstand, even if you wish to. You will do what is required of you." [284]

Waterboarding is torture

An extraordinary account of waterboarding and torture by a former SERE instructor.

Read the whole thing.

Last week the Attorney General nominee Judge Michael Mukasey refused to define waterboarding terror suspects as torture. On the same day MSNBC television pundit and former Republican Congressman Joe Scarborough quickly spoke out in its favor. On his morning television broadcast, he asserted, without any basis in fact, that the efficacy of the waterboard a viable tool to be used on Al Qaeda suspects.

Scarborough said, "For those who don't know, waterboarding is what we did to Khalid Sheikh Mohammed, who is the Al Qaeda number two guy that planned 9/11. And he talked …" He then speculated that “If you ask Americans whether they think it's okay for us to waterboard in a controlled environment … 90% of Americans will say 'yes.'” Sensing that what he was saying sounded extreme, he then claimed he did not support torture but that waterboarding was debatable as a technique: "You know, that's the debate. Is waterboarding torture? … I don't want the United States to engage in the type of torture that [Senator] John McCain had to endure."

In fact, waterboarding is just the type of torture then Lt. Commander John McCain had to endure at the hands of the North Vietnamese. As a former Master Instructor and Chief of Training at the US Navy Survival, Evasion, Resistance and Escape School (SERE) in San Diego, California I know the waterboard personally and intimately. SERE staff were required undergo the waterboard at its fullest. I was no exception. I have personally led, witnessed and supervised waterboarding of hundreds of people. It has been reported that both the Army and Navy SERE school’s interrogation manuals were used to form the interrogation techniques used by the US army and the CIA for its terror suspects. What was not mentioned in most articles was that SERE was designed to show how an evil totalitarian, enemy would use torture at the slightest whim. If this is the case, then waterboarding is unquestionably being used as torture technique.

The carnival-like he-said, she-said of the legality of Enhanced Interrogation Techniques has become a form of doublespeak worthy of Catch-22. Having been subjected to them all, I know these techniques, if in fact they are actually being used, are not dangerous when applied in training for short periods. However, when performed with even moderate intensity over an extended time on an unsuspecting prisoner – it is torture, without doubt. Couple that with waterboarding and the entire medley not only “shock the conscience” as the statute forbids -it would terrify you. Most people can not stand to watch a high intensity kinetic interrogation. One has to overcome basic human decency to endure watching or causing the effects. The brutality would force you into a personal moral dilemma between humanity and hatred. It would leave you to question the meaning of what it is to be an American.

We live at a time where Americans, completely uninformed by an incurious media and enthralled by vengeance-based fantasy television shows like “24”, are actually cheering and encouraging such torture as justifiable revenge for the September 11 attacks. Having been a rescuer in one of those incidents and personally affected by both attacks, I am bewildered at how casually we have thrown off the mantle of world-leader in justice and honor. Who we have become? Because at this juncture, after Abu Ghraieb and other undignified exposed incidents of murder and torture, we appear to have become no better than our opponents.

With regards to the waterboard, I want to set the record straight so the apologists can finally embrace the fact that they condone and encourage torture.

History’s Lessons Ignored

Before arriving for my assignment at SERE, I traveled to Cambodia to visit the torture camps of the Khmer Rouge. The country had just opened for tourism and the effect of the genocide was still heavy in the air. I wanted to know how real torturers and terror camp guards would behave and learn how to resist them from survivors of such horrors. I had previously visited the Nazi death camps Dachau and Bergen-Belsen. I had met and interviewed survivors of Buchenwald, Auschwitz and Magdeburg when I visited Yad Vashem in Jerusalem. However, it was in the S-21 death camp known as Tuol Sleng, in downtown Phnom Penh, where I found a perfectly intact inclined waterboard. Next to it was the painting on how it was used. It was cruder than ours mainly because they used metal shackles to strap the victim down, and a tin flower pot sprinkler to regulate the water flow rate, but it was the same device I would be subjected to a few weeks later.

On a Mekong River trip, I met a 60-year-old man, happy to be alive and a cheerful travel companion, who survived the genocide and torture … he spoke openly about it and gave me a valuable lesson: “If you want to survive, you must learn that ‘walking through a low door means you have to be able to bow.’” He told his interrogators everything they wanted to know including the truth. They rarely stopped. In torture, he confessed to being a hermaphrodite, a CIA spy, a Buddhist Monk, a Catholic Bishop and the son of the king of Cambodia. He was actually just a school teacher whose crime was that he once spoke French. He remembered “the Barrel” version of waterboarding quite well. Head first until the water filled the lungs, then you talk.

Once at SERE and tasked to rewrite the Navy SERE program for the first time since the Vietnam War, we incorporated interrogation and torture techniques from the Middle East, Latin America and South Asia into the curriculum. In the process, I studied hundreds of classified written reports, dozens of personal memoirs of American captives from the French-Indian Wars and the American Revolution to the Argentinean ‘Dirty War’ and Bosnia. There were endless hours of videotaped debriefings from World War Two, Korea, Vietnam and Gulf War POWs and interrogators. I devoured the hundreds of pages of debriefs and video reports including those of then Commander John McCain, Colonel Nick Rowe, Lt. Dieter Dengler and Admiral James Stockdale, the former Senior Ranking Officer of the Hanoi Hilton. All of them had been tortured by the Vietnamese, Pathet Lao or Cambodians. The minutiae of North Vietnamese torture techniques was discussed with our staff advisor and former Hanoi Hilton POW Doug Hegdahl as well as discussions with Admiral Stockdale himself. The waterboard was clearly one of the tools dictators and totalitarian regimes preferred.

There is No Debate Except for Torture Apologists

1. Waterboarding is a torture technique. Period. There is no way to gloss over it or sugarcoat it. It has no justification outside of its limited role as a training demonstrator. Our service members have to learn that the will to survive requires them accept and understand that they may be subjected to torture, but that America is better than its enemies and it is one’s duty to trust in your nation and God, endure the hardships and return home with honor.

2. Waterboarding is not a simulation. Unless you have been strapped down to the board, have endured the agonizing feeling of the water overpowering your gag reflex, and then feel your throat open and allow pint after pint of water to involuntarily fill your lungs, you will not know the meaning of the word.

Waterboarding is a controlled drowning that, in the American model, occurs under the watch of a doctor, a psychologist, an interrogator and a trained strap-in/strap-out team. It does not simulate drowning, as the lungs are actually filling with water. There is no way to simulate that. The victim is drowning. How much the victim is to drown depends on the desired result (in the form of answers to questions shouted into the victim’s face) and the obstinacy of the subject. A team doctor watches the quantity of water that is ingested and for the physiological signs which show when the drowning effect goes from painful psychological experience, to horrific suffocating punishment to the final death spiral.

Waterboarding is slow motion suffocation with enough time to contemplate the inevitability of black out and expiration –usually the person goes into hysterics on the board. For the uninitiated, it is horrifying to watch and if it goes wrong, it can lead straight to terminal hypoxia. When done right it is controlled death. Its lack of physical scarring allows the victim to recover and be threaten with its use again and again.
[....]
Torture in captivity simulation training reveals there are ways an enemy can inflict punishment which will render the subject wholly helpless and which will generally overcome his willpower. The torturer will trigger within the subject a survival instinct, in this case the ability to breathe, which makes the victim instantly pliable and ready to comply. It is purely and simply a tool by which to deprive a human being of his ability to resist through physical humiliation. The very concept of an American Torturer is an anathema to our values.

That last paragraph reminds me of something...

More Taser misuse

Not cool.

LAist: OC Deputies Taser, Cuff 15-Year-Old Autistic Boy
Taylor Karras was reported missing by his mother yesterday, after running away from a Westminster social services facility where he was receiving therapy for autism.

Around 9:30 p.m., the 15-year-old boy was found just a block from his North Tustin home. Orange County Sheriff's deputies spotted Karras pushing a shopping cart in the street, chased him on foot, Tasered him once, and handcuffed him.

Only when a passing neighbor recognized Karras did the authorities realize he had been reported missing nearly ten hours earlier and that he had a disability.

Taylor Karras's mother, Doris, said she saw the entire incident and felt the police action was excessive. "He had been stopping at bus stops and reading the maps to find his way home," she said.

OC Sheriff Lt. Hal Brotheim claimed that Karras took off running through traffic when the deputies approached him. Traffic in unincorporated North Tustin at 9:30 p.m. on a Monday night. Link

Guard Tasers Man Holding Baby
In a confrontation captured on videotape, a hospital security guard fired a stun gun to stop a defiant father from taking home his newborn, sending both man and child crashing to the floor. Now William Lewis says his baby girl suffers from head trauma because she was dropped.

"I've got to wonder what kind of moron would Tase an adult holding a baby," said George Kirkham, a former police officer and criminologist at Florida State University. "It doesn't take rocket science to realize the baby is going to fall."

..."The Taser itself is a legitimate law-enforcement tool," said Kirkham, the criminologist. "The problem is the abusive use of them. They're supposed to be only used to protect yourself or another person from imminent aggression and physical harm. They're overused now." Link

Hog-tied woman tasered in jail
A Butterfield woman who allegedly was "hog-tied" and shocked multiple times with a Taser at the Barry County Jail is suing in federal court.

Melissa A. "Missy" Norman, 41, claims her civil rights were violated during a July 23 incident at the jail.

At least a half dozen officers from the Barry County Sheriff's Department and Cassville Police Department previously were placed on leave because of the incident, which is being investigated by the Missouri Highway Patrol.

None of the officers has been charged.

Norman "was handcuffed, leg shackled, hog-tied, blindfolded and tasered numerous times," according to a news release issued by her her attorneys, John Lewright and Robert Foulke.

Lewright said Monday the Taser incident was recorded by a video camera in the booking area, although he had yet to receive a copy of the recording. Lewright said he took the case — he normally focuses on criminal defense — because it "infuriated" him. The slow pace of the investigation into the woman's jail treatment and a delay in receiving the video have only added to that frustration, he said.

"If people hog-tied a dog and then took a cattle prod to that dog ... they would be federally prosecuted," he said.

The lawsuit claims: Norman's constitutional rights under the Fourth and Fourteenth Amendments were violated; the departments failed to properly supervise the officers; Norman was discriminated against under the Americans with Disabilities Act; and she was the victim of battery, negligence and infliction of emotional distress.
[....]
According to the lawsuit, Norman "was having personal difficulties" July 23 and contacted a law enforcement officer at his home. She was taken by ambulance to St. John's hospital in Cassville and given medicine to make her vomit.

Norman then left the hospital voluntarily but was later apprehended by a group of law enforcement officers, who "tackled, handcuffed, and leg-shackled" her, according to the lawsuit. The handcuffs and leg shackles were tied together behind her back while an officer "was digging his knee into Missy's neck so she could not breathe," the lawsuit said.

Norman allegedly was put into the back of a patrol car without a seat belt and taken to the Barry County Jail. Once there, a group of officers carried her into a booking area and allegedly taunted her. Norman "was terrified and started hitting her head," the lawsuit said.

The officers allegedly taped a towel around her head with duct tape, then began shooting her with a Taser multiple times. The lawsuit said that at one point the officers lifted Norman's shirt above her stomach to administer the Taser to her bare skin, causing burn wounds. Norman's screams of pain and pleas that the officers stop were repeatedly ignored, the lawsuit said.She eventually was placed in a jail cell but not released to a hospital until the next morning.

Six were punished for incident. Neither Epperly, the sheriff, nor McCullough, the police chief, returned phone calls seeking comment Monday.

Epperly — who was away at a conference at the time of the incident — said in an interview in July that Norman was emotionally disturbed and went to the home of an off-duty officer threatening suicide at about 10 p.m. the night of the incident.

Epperly said he was told officers tracked down Norman after she left the hospital out of concern for her safety.She became combative, he said, spat at and tried to harm officers, as well as herself. At the jail, Norman reportedly was hitting her head on the floor before a deputy used a Taser on her twice, the sheriff said. Link

At least the goat got away

DECATUR, Ala. (AP) - A nanny goat eluded police and a Taser stun after being spotted running into traffic in Decatur. Sergeant Jeremy Hayes said the goat, which occasionally ran onto roads, had been spotted repeatedly Sunday. He said Decatur police got three calls on the goat. Police didn't know where the goat came from and weren't sure where it was today. Lieutenant Frank DeButy said patrol officers tried zapping the goat with a Taser near Somerville Elementary school but missed as the goat was running full-stride.Hayes said police were having trouble catching the goat because they don't want to injure it. Link

H/T to Jesus' General

In which Adam experiences a privation of calm

Ugh.

Some time ago my little girl, then three years old, dislocated her shoulder. I was alone in the house at the time. The pain was so intense that she became faint. I treated her the best I knew how, but kept holding the thought that just as soon as some one came I would run for help. She seemed to grow worse and cried very much. I undressed her and tried to twist the arm into place, but it caused such suffering that I began to get afraid. Then like a flash came the thought, What would you do if you were out of the reach of a practitioner? Now is your time to prove God's power and presence. With these thoughts came such a sense of calm and trustfulness that I lost all fear. I then asked the child if I should read to her; she said "Yes, mamma, read the truth-book." I began reading aloud to her from Science and Health. In about half an hour I noticed she tried to lift the arm but screamed and became very pale. I continued to read aloud and again she made an effort to put some candy into her mouth. This time I noticed with joy that she almost reached her mouth before she felt the pain. I kept reading aloud to her until my sister and two boys came in, when she jumped off her bed, so delighted to see her brothers that she forgot her arm. She then began to tell her aunt that she had broken her arm and mamma treated it with the truth-book. When this happened, it was about 10.30 A.M. and by 3 P.M. she was playing out doors as though nothing had ever happened.--Mrs. M. G., Winnipeg, Man Link

Someone please read to me from the truth-book and pour me a stiff drink. Heal me of the burning rage I feel.

Why pains can't be privations

I've looked all over for someone making the most obvious and powerful objection to privation theories. Thank you Stanley Kane:

The difficulty is that pain seems clearly to be more than merely the absence of its contrary opposite. There is a marked difference between a limb which merely lacks feeling is numb or paralyzed or anesthetized and one that is racked with pain. In the former case it is quite plausible to say that is merely a privation of something, namely normal feeling, that under usual circumstances would belong to the limb. But it is clearly inadequate to describe a limb aching with pain as suffering merely a privation of good health or normal feeling. When pain occurs in the body, there is something new and different in a person’s experience which is not present when the body has simply lost feeling.

G.Stanley Kane, "Evil and Privation" Int J Phil Rel 11 (1980) 43-58

Agony

From the OED definition of 'agony'. 1b is rather surprising, no?

The development of the senses in Gr. was:{em}1. A struggle for victory in the games; 2. Any struggle; 3. Mental struggle, anguish, e.g. Christ's anguish in Gethsemane. But the historical appearance of the meanings in Eng. was as follows:

1. a. Anguish of mind, sore trouble or distress, a paroxysm of grief. agony column, (a) the column of a newspaper that contains special advertisements, particularly those for missing relatives or friends, and thus often gives evidence of great distress; (b) a regular newspaper or magazine feature containing readers' questions about personal difficulties, with replies from the columnist; cf. problem page s.v. PROBLEM 7(b); agony aunt(ie), a familiar name for the (female) editor of an agony column (sense b); in extended use, an adviser on personal, psychological, etc., problems.

b. Hence, Intensity or paroxysm of pleasure.
a1725 POPE Odyssey x. 492 With cries and agonies of wild delight. 1877 MRS. OLIPHANT Mak. Flor. v. 138 He struck the marble in an agony of pleasure and content, bidding it ‘Speak’!

2. spec. The mental struggle or anguish of Christ in the garden of Gethsemane.

3. The convulsive throes, or pangs of death; the death struggle. (med.L. agon mortis.) Seldom now used in this sense without qualification, as agony of death, mortal agony.

4. a. Extreme bodily suffering, such as to produce writhing or throes of the body.
b. transf. and fig.
1835-40 etc. [see PILE v.2 2b]. 1863 GEO. ELIOT Let. 23 Oct. (1956) IV. 111 We shall soon be in the agonies of moving. 1924 R. CAMPBELL Flaming Terrapin ii. 25 The mountains frown, Locked in their tetanous agonies of stone. 1932 W. B. YEATS Words for Music 2 Dying into a dance, An agony of trance, An agony of flame that cannot singe a sleeve.

5. A struggle or contest. (Rarely without some shade of the preceding senses.)
16

Link (requires subscription)

Thanks to the most awesome PDT for the reference.

In which Adam experiences a privation of sanity

In an amazing display of how a mistaken theodicy can lead to idiocy, Anglin and Goetz write:

one must distinguish between pain as an evil (a privation of normal consciousness, an inability to enjoy the weather) and pain as an experienced quality (a strong stimulus, an overwhelming sensation). A pain is only an evil insofar as it is privative.

Sounds a bit weird. But let's hear some more...

The privationist must agree that the experienced quality of a pain is not a mere absence of something but this does not commit him to saying that it is a good. Instead he can maintain that it is neither good nor evil but a sort of neutral thing. Of course, the experienced quality of pain always entails a privation of our normal state of consciousness and it often signals a privation of our normal state of bodily well-being. It can result in fear or resentment which are tied up with yet other privations.

Wait for it...........

However, just insofar as it is an experienced quality, pain is not an evil. Indeed, in some cases, the absence of this experienced quality would be an evil. If you cut your finger it would be worse if you did not than if you did feel pain.

OWWWWWWWWWWWWWWWWWWWWW! IT BURNS!!!!!!!!!!!!!!!!!!

Someone please douse me with the distinction between intrinsic and instrumental value to put the fire in my brain out........

OWWWWWWWWWWWWWWWWWWWWWW!!!!!!!!!!!!!!!!!!!!!!!!!!!!


*Anglin and Goetz, "Evil is Privation" Int J Phil Rel 13: 3-12 (1982), p.5