Project MKUltra - Legal Issues Involving Informed Consent

Legal Issues Involving Informed Consent

The revelations about the CIA and the Army prompted a number of subjects or their survivors to file lawsuits against the federal government for conducting experiments without informed consent. Although the government aggressively, and sometimes successfully, sought to avoid legal liability, several plaintiffs did receive compensation through court order, out-of-court settlement, or acts of Congress. Frank Olson's family received $750,000 by a special act of Congress, and both President Ford and CIA director William Colby met with Olson's family to publicly apologize.

Previously, the CIA and the Army had actively and successfully sought to withhold incriminating information, even as they secretly provided compensation to the families. One subject of Army drug experimentation, James Stanley, an Army sergeant, brought an important, albeit unsuccessful, suit. The government argued that Stanley was barred from suing under a legal doctrine—known as the Feres doctrine, after a 1950 Supreme Court case, Feres v. United States—that prohibits members of the Armed Forces from suing the government for any harms that were inflicted "incident to service."

In 1987, the Supreme Court affirmed this defense in a 5–4 decision that dismissed Stanley's case: United States v. Stanley. The majority argued that "a test for liability that depends on the extent to which particular suits would call into question military discipline and decision making would itself require judicial inquiry into, and hence intrusion upon, military matters." In dissent, Justice William Brennan argued that the need to preserve military discipline should not protect the government from liability and punishment for serious violations of constitutional rights:

The medical trials at Nuremberg in 1947 deeply impressed upon the world that experimentation with unknowing human subjects is morally and legally unacceptable. The United States Military Tribunal established the Nuremberg Code as a standard against which to judge German scientists who experimented with human subjects... . n defiance of this principle, military intelligence officials ... began surreptitiously testing chemical and biological materials, including LSD.

Justice Sandra Day O'Connor, writing a separate dissent, stated:

No judicially crafted rule should insulate from liability the involuntary and unknowing human experimentation alleged to have occurred in this case. Indeed, as Justice Brennan observes, the United States played an instrumental role in the criminal prosecution of Nazi officials who experimented with human subjects during the Second World War, and the standards that the Nuremberg Military Tribunals developed to judge the behavior of the defendants stated that the 'voluntary consent of the human subject is absolutely essential ... to satisfy moral, ethical, and legal concepts.' If this principle is violated, the very least that society can do is to see that the victims are compensated, as best they can be, by the perpetrators.

This is the only Supreme Court case to address the application of the Nuremberg Code to experimentation sponsored by the U.S. government. Although the suit was unsuccessful, dissenting opinions put the Army—and by association the entire government—on notice that use of individuals without their consent is unacceptable. The limited application of the Nuremberg Code in U.S. courts does not detract from the power of the principles it espouses, especially in light of stories of failure to follow these principles that appeared in the media and professional literature during the 1960s and 1970s and the policies eventually adopted in the mid-1970s.

In another law suit, Wayne Ritchie, a former United States Marshal, after hearing about the project's existence in 1990, alleged the CIA laced his food or drink with LSD at a 1957 Christmas party which resulted in his attempting to commit a robbery at a bar and his subsequent arrest. While the government admitted it was, at that time, drugging people without their consent, U.S. District Judge Marilyn Hall Patel found Ritchie could not prove he was one of the victims of MKUltra or that LSD caused his robbery attempt and dismissed the case in 2007.