Human Research Subject Protections
for National Security Experiments
This paper addresses the legal and underlying historical factors that have led to the current status of US law on human research subject protections for national security experiments. A framework of national security law and presidential powers is used and provides a new perspective. Human research subject protections for secret experiments represents a small part of experimentation law although it has a well-established grounding in constitutional and international law. The secret CIA experiments to develop mind control weapons in the 1950s-1970s led to congressionally-imposed federal regulations and presidential executive orders so that illegal experiments on unwitting human subjects would never happen again. Military radiation experiments for the development of the atomic bomb led to executive memorandums ordering federal and intelligence agencies to implement regulations to prevent illegal and unethical secret experiments conducted without the consent of the human research subject. By examining the judicial, executive and legislative response to the two major scandals, strategies and proposals for preventing future illegal experiments for national security are more likely to succeed. So far, experimentation law has not included an analysis using current theories of national security law and presidential powers.
This paper specifically addresses why federal legislation has never been enacted and why the current executive memorandums and executive orders do not protect human subjects of national security experiments. Proposed remedies include enacting a federal statue to provide an effective legal protections for human research subjects of national security experiments. Some presidential scholars have recently studied executive orders and the historical and legal basis of presidential powers.1 The history of executive orders for human experimentation can be applied to the study of presidential powers. Because human experimentation for national security experiments is an intelligence matter, the history and framework of national security law also provides an explanation for the long record of failed human subject protections.
First, experts on secret experiments and the law dating back to World War II discuss the major issues including: the cold war CIA experiments that were knowingly conducted outside the bounds of the law; the scientific-military culture of secrecy; the excessive control of all scientific information connected to weapons; and the propaganda and scientific deception surrounding the unethical and illegal radiation experiments. The importance of the cold war culture is that experts are now reporting a great increase of secrecy, new weapons, scientific propaganda and deception, and government actions above the law; all to protect national security.
The fifty year clash between the acknowledged validity of human subject legal protections and the perceived needs of national security is described by many experimentation law experts and they report utilitarian national security interests continue to trump human subject protections. As will be shown, this is carried out by means of: condoning illegal experiments at the very top levels of government; by the executive branch in failing to implement effective protections for human research subjects; by the historically-based acquiescence of Congress to presidential initiative in national security issues and thereby failing to pass effective legislation to protect human research subjects; by the acceptance at top levels of the government of a culture of scientific propaganda and deception including government cover stories; and the classifying of illegal government actions, ordered and implemented by top levels of the government for national security purposes. This pattern was in place for CIA mind control experiments, for radiation experiments and continues today, experts report.
This paper will address the judicial, legislative and executive response to human subject protections and the finding that the system of law works as well as in similar intelligence matters. As will be shown, the legal approach to solving this issue is dependent on a political question; the continuing cold war culture that allows the government to work outside of the law and to go unpunished.
The first section identifies and defines the problem of human subjects protections for national security experiments. The next section presents a history of experimentation law beginning with the Nuremberg Code and the well-grounded basis for human subject protections in international and constitutional law. Next, the judicial branch response to illegal human experiments is followed with sections on the failed attempts of the executive and legislative branches of government to address human subjects protections as seen in several 1990-2005 government reports on experimentation. This section includes an analysis of the shared powers between the executive and legislative branches over national security issues within the framework of national security law and presidential powers..http://mindjustice.org/humprot2-06.htm
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