APA Torture & Ethics Scandal Highlights Fact No Medical Professionals Have Been Held to Account for Torture

In her very interesting analysis of the American Psychological Association's new policy calling for withdrawal of psychologists from national security interrogations and sites identified with torture and abuse, such as Guantanamo, Deborah Popowski ("The APA’s Watershed Move to Ban Psychologists’ Complicity in Torture," August 11) writes:

I predict that ultimately, this resolution [Motion 23B passed by APA's Council of Representatives] will be more powerful than its AMA and American Psychiatric Association counterparts precisely because it took years of dogged advocacy to achieve. The APA’s bad behavior was a mobilizing force for psychologists of conscience. The organization now faces a savvy group of reformers that understand its playbook and will keep pressing for enforcement. I look forward to seeing how they ride this wave of momentum.

I think this is a good point, but it, like most of the analysis on the APA's new interrogations policy has a certain unreal character, as its analysis exists outside of the realities of the Department of Defense justifies its use of health professionals, including psychologists and psychiatrists, in interrogations.

DoD and the American Psychiatric Association "Ban" on Psychiatrists in Interrogations

Popowski mentions AMA and the American Psychiatric Association (APsyA) because both of these practitioner groups previously issued policies forbidding their members to participate in interrogations. Such participation is unethical, they said, although the psychiatrist's group did allow their members to "provide training to military or civilian investigative or law enforcement personnel... on the possible medical and psychological effects of particular techniques and conditions of interrogation..."

But what these powerful organizations condemn and how they enforce these policies are two different things. In addition, how the Pentagon chooses to interpret the policies of these organizations is yet another thing.

In a September 2008 letter to then-Secretary of Defense Robert Gates, the APsyA president, Dr. Nada Stotland, quoted an article by George Annas, who noted, "The DOD's new position that its physicians not follow nationally and internationally accepted medical ethics represents a major policy change." Stotland was complaining about how the Pentagon continued to train psychiatrists for interrogation despite the APsyA's opposition to the their participation. It is not known if or how Gates replied, but DoD's policy in the matter itself never changed.

But the psychiatrist association itself never put any teeth in their policy. It never moved to sanction any member for participation in interrogations, which is done under the auspices of the Pentagon's Behavioral Science Consultation (BSC) program. Later, then-APA president Gerald Koocher would use APsyA's stated preference not to bring any such charges as an example of the rightness of APA's own policy. (See "President's Column," APA Monitor, July/August 2006)

Indeed, no doctor, psychiatrist, psychologist, nurse, medical technician, or any medical professional involved in interrogations has ever been brought up on charges by any medical or professional association. Attempts to bring charges by state licensing agencies were undertaken by private individuals -- attempts with which Ms. Popowski has assisted -- and such attempts universally failed (thus far), though not for trying.

But as important as the attempts to get at the torturers via licensing board complaints are, is a strategy aimed at prosecution via state licensing agencies really going to be effective? As one state licensing agency official told me, "How do you expect us to prosecute these cases when the U.S. government will not do so?" It would indeed take a great deal of courage to buck the federal government. There is also the issue that legal actions against health professionals would be subject to "graymail" defenses, in that defendants will argue that (supposedly, or potentially) exonerating evidence is classified and highly unlikely to be made available from the government. What happens then?

Applicable DoD policy on BSCs goes back to the 2006 DoD Instruction 2310.08E, "Medical Program Support for Detainee Operations." This policy allows DoD to use psychiatrists or physicians with the approval of the Assistant Secretary of Defense for Health Affairs, despite the policy by the American Psychiatric and American Medical associations.

E2.2 As a matter of professional personnel management, physicians are not ordinarily assigned duties as BSCs, but may be so assigned, with the approval of ASD(HA), in circumstances when qualified psychologists are unable or unavailable to meet critical mission needs.

In case some might think this old Bush-era instruction is not in force, it is. The most current policy, DoD Directive 3115.09, "DoD Intelligence Interrogations, Detainee Debriefings, and Tactical Questioning" (in its most up-to-date version of 11/15/13) references the 2006 DoD 2310.08E instruction as "reference (r)", i.e., for policy on BSCs.

Manipulation of Phobias

It's worth noting, 3115.09 has also made allowance for the ongoing use of SERE techniques, as they are used in the Army Field Manual, which I pointed out some time back. The only recent change in 3115.09 has to do with BSC manipulation of detainee phobias, a change that has not been publicly noted before: "Behavioral science consultants may not be used to determine detainee phobias for the purpose of exploitation during the interrogation process." That appears to be the one concession made by the Obama administration to criticisms of its interrogation policy. The reference was to phobias as addressed in Army Field Manual 2-22.3 in its description of the "Fear Up" approach. Before this change was made in 2012, BSCs were allowed to manipulate or create phobias in prisoners in a style of coercive interrogation that an earlier version of the Field Manual noted some nations -- though not the United States -- would find illegal.

The fact is, the opponents of existing policy at APA, not to mention officers at AMA, APsyA, and a number of human rights watchdog groups are aware of current Pentagon policy on using physicians in interrogations in lieu of psychologists, and despite the opposition on paper of physicians organizations, but nothing is ever said about it. One has to ask why this is. Psychologists, who still have a fight on their hands in making the new APA policy enforceable within APA, have not mentioned DoD's policy on such use, about which nothing has changed since the days of the Bush administration.

The Enforcement Question

Except for an Aug. 8 article in Al Jazeera America, no news accounts have noted that when APA opponents of the old interrogation policy were putting forth their motion to ban members from participation in interrogations or at sites where human rights abuses take place, the first draft of that motion had a strong enforcement proviso, which stated, "Be it resolved that the APA will direct staff to contact the licensing boards of all states and territories informing them that it is the sense of the Council of Representatives that any complaint against a psychologist who refuses to comply with the call to leave Guantanamo be reviewed ‘with prejudice’."

The final version of the motion that passed, and is hailed as a victory, omitted that provision. Such a step back from enforcement does not bode well for the future effectiveness of the APA action.

Other arguments regarding the efficacy of enforcing the APA's new policy were raised by psychologist John Grohol at his blog PsychCentral last week. Grohol quoted an August 18, 2015 email from APA’s Associate General Counsel Jesse Raben to psychologist and ethics exert Ken Pope, who resigned from APA in 2008 over APA's slippery ethics policies.

With regards to 23B (and therefore with the 2008 [member-initiated] resolution [banning psychologists from interrogation at human rights violating sites]) while this new Council resolution invokes Ethical Principle A to “take care to do no harm,” it does not amend the Ethics Code and is not enforceable as a result [emphasis added]. However, Council’s implementation plan for the new policy requests that the Ethics Committee consider a course of action to render the prohibition against national security interrogations enforceable under the Ethics Code.

Grohol's article must have made some impact, because Nadine Kaslow and Susan McDaniel, both members of the Special Committee for the Independent Review by David Hoffman that excoriated APA's connivance with the Department of Defense on interrogation issues, responded to Grohol's charges in an email to APA's Division 48, The Society for the Study of Peace, Conflict, and Violence. (Kaslow is also an APA past president, while McDaniel is the organization's president-elect.)

APA Officials Respond

Kaslow and McDaniel's full reply is not online, but what follows is an edited version of the high points. The two APA officials sympathized with Grohol's skepticism, but felt "that this reaction is misplaced at this time in the history of APA."

The authority and processes regarding policy development and modifications to the APA Ethics Code are stipulated in APA’s Bylaws and Association Rules. The first very important step is for a policy, such as the national security interrogation prohibition, to be passed by Council. For those policies with ethical aspects such as this one, the next step is for it to be considered by the Ethics Committee. The independence of the Ethics Committee is important, as described in the Hoffman Report. According to our Bylaws and Association Rules, the Ethics Committee has authority for formulating the Ethics Code, overseeing the process for changing the Ethics Code (which involves governance review and public comment), and for enforcing it. The movers of New Business Item #23B -- Scott Churchill, Jean Maria Arrigo, and Frank Farley, supported by Steven Reisner and Dan Aalbers -- were well aware of the necessary process. They successfully achieved the policy change, the all-important first step to achieving their ultimate goal of an enforceable prohibition, in keeping with the American Medical Association. (The American Psychiatric Association's policy is not part of their Ethics Code.)

.... The movers also included a provision in the implementation section of the resolution for Council to request that the Ethics Committee "consider pursuing an appropriate course of action in as expeditious a manner as possible to incorporate into the Ethics Code the prohibitions surrounding psychologist participation in national security interrogations, as set forth in this policy." The next step is for the Ethics Committee to carry out this recommendation. An amendment to the Ethics Code will provide the necessary “teeth” for the policy to be enforced. In the interim, I would like to point out that the Ethics Committee considers APA policies, guidelines, and other documents when interpreting the Standards of the Ethics Code.

.... As noted above, although the 2013 policy is not enforceable under the Ethics Code, it provides valuable guidance to the Ethics Committee in this regard....

Changing policy, aspects of the Ethics Code, and creating a culture that is transparent and trustworthy in all parts of the organization will take time and considerable effort. But it is a commitment we feel deeply in support of our public, our discipline, and our members....

Reading Kaslow and McDaniel's email, I think Ms. Popowski may have a point about the sanguinary effect of the new APA policy. From my own standpoint, I believe it was a huge step forward for the new APA policy to bring the recondite and legal struggle against the U.S. Reservations to the UN Convention Against Torture treaty out into the open, and put the imprimatur of a huge medical and professional organization behind the goal of removing those reservations, which in action eviscerated enforcement of that treaty in the U.S., and which were used by John Yoo, Jay Bybee and Steven Bradbury to alibi torture in their infamous OLC memos on interrogation.

Loopholes on Unethical Research to Remain

But there are also giant holes in APA's new policy, particularly as it pertains to psychologist research for the military and intelligence agencies. Since that is really where the bulk of federal money to psychologists and psychology programs go, that means the haze of unreality around these issues is a veritable fog of obfuscation. APA ethics code 8.05 allows psychologists to suspend informed consent -- which is the bedrock of ethical research on human subjects -- "where otherwise permitted by law or federal or institutional regulations." In addition, ethics code 8.07 allows psychologists to use deception in research on "prospective participants," unless such deception would be "reasonably expected to cause physical pain or severe emotional distress." The emphasis on "severe" emotional distress is a weakening of earlier language, and allows great discretion for research using deception that would allow, say, "moderate" levels of emotional distress. Indeed, a section of the Hoffman report contains a section on the research issue, and I will examine it more fully in the near future.

Nevertheless, when it comes to interrogations or psychologists presence at national security detention sites, the APA policy is much more stringent that that passed by APsyA or AMA, and demands that psychologists not even involved in interrogations at sites such as Guantanamo be transferred out. But will DoD listen to that? And if psychologists continue to work in such secret circumstances, how will APA or anyone else know? And what if anything will happen about that? I don't imagine anyone in DoD is losing much sleep over this... yet.

There is also the force of moral suasion, which if not terribly powerful, does play some role in historical circumstances. The leaders of the fight against APA's previous torture policy, and against an APA leadership that worked with government forces to allow torture and abuse of prisoners during interrogation and detention, are to be congratulated. I know from private conversations they are aware that more battles lie ahead. I suggest those battles lie directly with the Obama administration itself, and the leadership of other medical professional and human rights organizations to hold the administration's metaphoric feet to the fire, and end the use of all medical professionals in interrogations and under cruel conditions of confinement at so-called national security detention sites that are known to abuse prisoners, like Guantanamo.