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Just following (doctors’) orders


[Killing by gas] was indeed a medical matter, since it was prepared by physicians; it was a matter of killing, and killing, too, is a medical matter.” – Robert Servatius (Adolph Eichmann’s lawyer)
James Mitchell and John Jessen

Everyone loves lawyer jokes, right? Lawyers must love them too, otherwise they wouldn’t keep inventing them.

This week’s lawyer joke comes from the civil suit against James Mitchell and John “Bruce” Jessen, two psychologists who spotted the commercial potential of designing torture programs for the CIA. They weren’t being terribly innovative. Mental health professionals have a long and lucrative history of abusing human rights for authorities, including researching interrogation and brainwashing techniques on projects like MKUltra and supervising waterboarding at Gitmo; usually with the full support of their guilds. Their entrepreneurial spirit netted the pair $81 million from US taxpayers.

Unusually, and uncomfortably for Mitchell and Jessen, a group of torture victims – as well as the family of one who was killed under interrogation – have done what the state won’t and dragged them before a court, seeking punitive damages for the part they played in the abuse of prisoners of ‘The War on Terror’.

In a surprising twist lawyers for the defendants recently equated their clients to those who provided the Nazis with the Zyklon B gas used for the mass killing of Jews, Roma, Slavs, homosexuals, political opponents and people designated mentally ill or deficient.

That’s a bit harsh isn’t it? Psychologists didn’t design the Holocaust after all. Psychiatrists did.

Psychiatry was an enthusiastic early adopter of racial hygiene theory, with big names like Emil Kraepelin, Henry Maudsley and Eugen Bleuler throwing their considerable prestige behind it. But it was the psychiatrist and utilitarian philosopher Alfred Hoche who kicked things into overdrive when he and his colleague, lawyer Karl Binding, laid out the principle of ‘life unworthy of life‘, thus offering an intellectual fig-leaf to those who wanted to exterminate anyone they considered less human than themselves. Psychiatrist Berthold Kihn added an economic dimension to the argument by calculating the mentally ill were costing Germany over 150 million Reichsmarks per year in his 1932 paper The Eradication of the Less Valuable from Society.

From 1938 the Nazis began piecemeal non-voluntary euthanasia of disabled children and mental patients, a measure that may have gained approval from modern utilitarians such as Peter Singer and Mary Warnock. It was done case-by-case with legal and medical oversight and consent from next-of-kin in much the same way contemporary legal euthanasia is carried out. But with the outbreak of war physicians – especially psychiatrists – in eastern Germany and occupied Poland took it upon themselves to commence unauthorised mass killing of institutionalised ‘mental defectives’ to free up hospital beds for wounded soldiers. When Hitler learned what was going on he legalised it, backdating the directive to September 1, 1939 and granting retrospective immunity to the killers. The resultant official program would eventually become known as Aktion T4 and by 1941, when Hitler called a halt due to public outcry, more than 70,000 people had been done away with. But there was no stopping the shrinks. They continued what they called wilde Euthanasie’ (decentralised euthanasia) without official approval, eventually accounting for an estimated 200,000 hospital and asylum patients with perhaps an equal number sent to labour camps to be worked to death. The industrialised slaughter techniques pioneered by T4 psychiatrists – such as extermination vans and gas chambers disguised as communal showers – would soon become integral to the Final Solution and many would find employment in the booming death camp business; among them Dr Irmfried Eberl, the architect and commandant of Treblinka.

So why did their lawyers say Mitchell and Jesson were like the manufacturers of Zyklon B?

Well, they’re lawyers not PR agents. Their argument went something like this: The people who supplied Zyklon B couldn’t be held responsible for how it was used. It might have been for delousing or killing rats. Likewise the psychologists who taught CIA interrogators how to torture people weren’t responsible when they used those methods to torture people. They might have used them to … err … umm … provide technical advice to the producers of Homeland and 24?

Sadly it seems the attorneys neglected to get underpaid paralegals to research precedents. Shortly after the war Bruno Tesch and Karl Weinbacher were put on trial to determine their complicity in genocide for supplying Zyklon B to the SS. They were convicted and hanged.

Hoche was never brought to book for developing the philosophical underpinning to the Holocaust. He killed himself in 1943 after a member of his family fell victim to Aktion T4.

I’m no lawyer so I can’t say what subtle legal strategies Mitchell and Jessen’s attorneys are pursuing in linking them to the Nazis. Perhaps the defendants plan to use their choice of legal representatives as part of an insanity plea. Is this a variation of the Scumbag Defence? Or will they be relying on the longstanding convention – reiterated just this week – that you can only be guilty of war crimes if you’re on the losing side.

From → history

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