Stephen Soldz on APA's Latest Maneuver to Hang on to Nuremburg Defense

Psychologist/Activist Stephen Soldz has written a tremendous article at his blog describing the current situation surrounding APA obstinancy around changing its ethics code. The entire situation is described so well by Dr. Soldz, I'll leave him to explain it. Anyone following the ways in which APA has subordinated itself to "national security psychology" will not, most likely, be surprised.

While I'm giving my readers a big slice of his article, I'm not reproducing the entire thing. For that I want you to visit his blog and give him the traffic he deserves.

Will the American Psychological Association finally renounce the Nuremberg Defense?

The long-standing struggle within the American Psychological Association over involvement of psychologists in potentially abusive national security interrogations is heating up again, this time with a dispute over its ethics code. In 2002, the APA added the infamous standard 1.02 to its code. This standard allows psychologists to ignore the other provisions of the code when it conflicts with “law, regulations, or other governing legal authority.”

With its echoes of the universally reviled Nuremberg Defense – “I was just following orders” – of the Nazi doctors and others tried for war crimes after World War II, this standard has been deeply disturbing to many APA members and others. This code is binding upon all APA members and upon most licensed psychologists in the country as most, perhaps all, states require those receiving licenses to adhere to the APA code. Standard 1.02 built a loophole into the ethics code that allowed any unethical behavior by those following military or other governmental orders.

Interestingly, in an unenforceable aspirational section of the ethics code, the wording is different:

“If the conflict is unresolvable via such means, psychologists may adhere to the requirements of the law, regulations, or other governing authority in keeping with basic principles of human rights.” [Emphasis added.]

After World War II, as the allies planned the prosecution of Germans for crimes committed during the war, they anticipated the possibility that defendants would use the defense that they were “just following orders” and were thus not morally culpable for their actions. The rules governing the Nuremberg trials stated:

“The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.”

This defense of following orders has been known ever since as the “Nuremberg defense” and has been regularly rejected in both U.S. and international law. In fact, the very term “Nuremberg defense” is often derided as the attempt of scoundrels to avoid moral and criminal responsibility.

In the wake of reports of psychologists aiding the Bush regime program of torture and detainee abuse, having the Nuremberg Defense in the APA’s ethics code took on added significance. Potentially, it could allow psychologists involved in detainee abuse or torture to escape future liability for these abuses before the APA or state ethics committees. Further, since violating professional ethics could be introduced as evidence in the unlikely possibility of future war crimes trials, 1.02 could provide some protection in potential future trials.

Human rights advocates within the APA have experienced revulsion at an ethics code that is effectively gutted by including the Nuremberg Defense. As Ken Pope, a former Chair of the APA Ethics Committee who has since resigned from the association wrote in a statement sent to thousands of psychologists:

“Nuremberg’s message of inescapable ethical responsibility and accountability came at an unfathomable price. It should never be set aside and forgotten, especially in a profession’s formal statement of its ethical values.”

The APA Council directed as early as 2005 that the association’s Ethics Committee evaluate and recommend an alternative to this standard; some discussions were held, but year after year, no action was taken. At its August 2008 meeting, Council again directed the Ethics Committee to make a recommendation regarding changes that would resolve the discrepancy between the aspirational “in keeping with basic principles of human rights” and the absence of any human rights restriction to following orders in the enforceable section of the code. This recommendation was to be presented to the August 2008 Council meeting.

During the year there was an open comment period during which over 80 psychologists posted comments on the APA web site. Interestingly, a number of military psychologists objected strongly to changing this standard. Among these were Morgan Banks and Larry James, both of the APA’s infamous PENS [Psychological Ethics and National Security] task force that, dominated as it was by military psychologists, gave the stamp of approval to psychologists participating in Bush-era interrogations. Also among those against changing 1.02 was Debra Dunivin, a Former BSCT psychologist at Guantanamo and wife of a former top APA official, Russ Newman, who played a major behind the scenes role in guiding the PENS task force. All three of these commentators served in chains of command that have been accused of abuses.

Joining the military psychologists in rejecting change were virtually all of the most powerful committees within the APA’s governance structure....

One month before this August’s Council meeting, the Ethics Committee made its recommendation. After four years of deliberations, they recommended no change in standard 1.02, but, rather, an additional lengthy period of discussion.. They did issue an apparently hastily-written statement that they would not accept a defense of “following orders” to ethics violations involving torture. This statement, however, is totally inadequate for several reasons:

• First, it is of dubious legality, as it directly conflicts with the code (1.02) itself.
• Second, such a statement is not binding on future Ethics Committees.
• Third, it has no status with state licensing boards that adopt the APA code.
• Finally, and most important, there are many other human rights abuses that may be authorized by law or orders that the EC statement will not cover....

The Ethics Committee’s recommendation was met with withering criticism from members. After initially refusing to respond to critics, the APA President and Board, sensing a pending PR disaster, responded positively to a motion from the members of Council who wrote the 2008 resolution directing the Ethics Committee to act by this august. Now these resolution Movers, as they were know, the President and the Board have united behind another six month delay, directing the Ethics Committee to recommend changes in 1.02 by the February Council meeting....

Whether or not it ultimately gets reversed, the Ethics Committee’s embrace of the Nuremberg Defense also was taken by many as yet another sign that the loyalty of the APA leadership to the military-intelligence establishment is greater than its loyalty to its members. After all, last September those members decisively rebuked the APA leadership by passing by a 59% to 41% margin a referendum declaring that psychologists, whether involved in interrogations or treatment of detainees, do not belong in detention centers violating international law or the Constitution....

The APA leadership.... has stymied efforts to apply the referendum to any actually existing detention facility, such as Guantanamo or Bagram, where indefinite detention without trial and other violations of human rights are still in effect....

Meanwhile there has been no action on the other major actions, including other essential ethics code revisions, recommended in the Psychologist/Human Rights groups Open Letter:

“1. Fully implement the 2008 referendum as an enforceable section of the APA Code of Ethics. This entails a public announcement that APA policy and ethical standards oppose the service of psychologists in detention facilities at Guantanamo Bay Detention Camp, Bagram Air Base, CIA secret prisons, or in the rendition program.

“2. Annul the June 2005 PENS Report due to the severe and multiple conflicts of interest involved in its production.

“3. Bring in an independent body of investigative attorneys to pursue accountability for psychologists who participated in or otherwise contributed to torture or cruel, inhuman, or degrading treatment. APA should also: (a) clarify the status of open ethics cases and (b) remove the statute of limitations for violations involving torture or cruel, inhuman, or degrading treatment, so as to allow time for information on classified activities to become public.

“4. Develop a clear and rapid timetable to remove Sections 1.02 and 1.03 [the `Nuremberg defense' of following orders] from the APA Code of Ethics. [We note that the APA Ethics Committee has stated that they will not accept a defense of following orders to complaints regarding torture; this statement is a welcome improvement but it is clearly inadequate as it is not necessarily binding on future committees nor does it cover abuses falling under the category of cruel, inhuman, or degrading treatment.] Revoke the equally problematic Section 8.05 of the Code, which dispenses with informed consent `where otherwise permitted by law or federal or institutional regulations,’ and Section 8.07, which sets an unacceptably high threshold of `severe emotional distress’ for not using deception in the ethics of research design.

“5. Retain an independent investigatory organization to study organizational behavior at APA. Due to potential conflicts of interest, independent human rights organizations should be enlisted to select this investigatory entity. The study should address, among other things, possible collusion in the PENS process and the 2003 APA-CIA-Rand conference on the Science of Deception, attended by the CIA’s apparent designers of their torture program [James Mitchell and Bruce Jessen] during which “enhanced interrogation” techniques were discussed. The study should explore how the APA governance system permits the accumulation of power in the hands of a very small number of individuals who are unresponsive to the general membership. It should also propose measures to return the APA to democratic principles, scientific integrity, and beneficence, including restructuring for greater transparency and the assimilation of diverse viewpoints.”

Until these five actions are undertaken, the APA will still not have extricated itself from its close engagement with the Dark Side.

Barack Obama, 2009 - Robert Jackson, 1945

Note: Judge Robert H. Jackson was Chief United States Prosecutor at the Nuremberg Trials. The following quote is from his opening statement for the Prosecution:

This principle of personal liability is a necessary as well as logical one if international law is to render real help to the maintenance of peace. An international law which operates only on states can be enforced only by war because the most practicable method of coercing a state is warfare. Those familiar with American history know that one of the compelling reasons for adoption of our constitution was that the laws of the Confederation, which operated only on constituent states, were found ineffective to maintain order among them. The only answer to recalcitrance was impotence or war. Only sanctions which reach individuals can peacefully and effectively be enforced. Hence, the principle of the criminality of aggressive war is implemented by the Charter with the principle of personal responsibility. Of course, the idea that a state, any more than a corporation commits crimes, is a fiction. Crimes always are committed only by persons. While it is quite proper to employ the fiction of responsibility of a state or corporation for the purpose of imposing a collective liability, it is quite intolerable to let such a legalism become the basis of personal immunity. The Charter recognizes that one who has committed criminal acts may not take refuge in superior orders nor in the doctrine that his crimes were acts of states. These twin principles working together have heretofore resulted in immunity for practically everyone concerned in the really great crimes against peace and mankind. Those in lower ranks were protected against liability by the orders of their superiors. The superiors were protected because their orders were called acts of state. Under the Charter, no defense based on either of these doctrines can be entertained. Modern civilization puts unlimited weapons of destruction in the hands of men. It cannot tolerate so vast an area of legal irresponsibility. Even the German Military Code provides that: "If the execution of a military order in the course of duty violates the criminal law, then the superior officer giving the order will bear the sole responsibility therefor. However, the obeying subordinate will share the punishment of the participant: (1) if he has exceeded the order given to him, or (2) if it was within his knowledge that the order of his superior officer concerned an act by which it was intended to commit a civil or military crime or transgression." (Reichsgesetzblatt, 1926 No. 37, P. 278, Art. 47) Of course, we do not argue that the circumstances under which one commits an act should be disregarded in judging its legal effect. A conscripted private on a firing squad cannot expect to hold an inquest on the validity of the execution. The Charter implies common sense limits to liability just as it places common sense limits upon immunity. But none of these men before you acted in minor parts. Each of them was entrusted with broad discretion and exercised great power. Their responsibility is correspondingly great and may not be shifted to that fictional being, "the State", which cannot be produced for trial, cannot testify, and cannot be sentenced.

The Charter also recognizes a vicarious liability, which responsibility recognized by most modern systems of law, for acts committed by others in carrying out a common plan or conspiracy to which a defendant has become a party. I need not discuss the familiar principles of such liability. Every day in the courts of countries associated in this prosecution, men are convicted for acts that they did not personally commit, but for which they were held responsible because of membership in illegal combinations or plans or conspiracies.

And this from President Obama's statement on the release yesterday of the OLC torture memos:

In releasing these memos, it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution. The men and women of our intelligence community serve courageously on the front lines of a dangerous world. Their accomplishments are unsung and their names unknown, but because of their sacrifices, every single American is safer. We must protect their identities as vigilantly as they protect our security, and we must provide them with the confidence that they can do their jobs.

Going forward, it is my strong belief that the United States has a solemn duty to vigorously maintain the classified nature of certain activities and information related to national security. This is an extraordinarily important responsibility of the presidency, and it is one that I will carry out assertively irrespective of any political concern. Consequently, the exceptional circumstances surrounding these memos should not be viewed as an erosion of the strong legal basis for maintaining the classified nature of secret activities. I will always do whatever is necessary to protect the national security of the United States.

This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past. Our national greatness is embedded in America’s ability to right its course in concert with our core values, and to move forward with confidence. That is why we must resist the forces that divide us, and instead come together on behalf of our common future.

The United States is a nation of laws. My Administration will always act in accordance with those laws, and with an unshakeable commitment to our ideals. That is why we have released these memos, and that is why we have taken steps to ensure that the actions described within them never take place again.

Do I have to make a comment?

Obama & Holder Trash Nuremberg Principles (updated)

A dark, dark day for America.

"They were only following orders." This is the opinion of Eric Holder, as offered in his statement today, describing the decision to release four Bush-era Office of Legal Counsel memos. (The memos have just been posted, and link is here.)

And so the United States government, 64 years after the end of World War II, adopts the infamous slogan of "Befehl ist Befehl" (literally "orders are orders"), otherwise known as the Nuremberg Defense.

Furthermore, Holder pledges the U.S. government will defend any CIA torturers before any tribunal, domestic or international, pay any fines, and make every effort to assert "any available immunities and other defenses".

"It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department," Holder said.

No matter how you try to spin it. No matter how enraged you are at my making a comparison to of U.S. governmental leaders to Nazi war criminals, there is no getting around it. Torturers are absolved by this administration. And the way they did was by using the defense made popular by the Nazis at their war crimes trials, and thoroughly rejected by the United States at that time.

In taking this position formally, the Obama administration has discarded the principles enumerated in the London Charter of the International Military Tribunal at Nuremberg, where Articles 7 and 8 state (emphasis added):

Article 7. The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment.

Article 8. The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.

"Mitigation of punishment" sounds a hell of a lot different than what Holder is proposing, which is an all-out defense of those who claim who were "only following orders" (quotes for irony, not Holder's). Perhaps Holder should consider this statement, from the Nuremberg IMT's Trial of the Major War Criminals:

Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.

Or both Holder and Obama can consider what the U.S., as a High Contracting Party, or signatory, to the Geneva Conventions says about the duty to prosecute war crimes, such as torture (emphasis added):

“Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.

Geneva III POWs, art. 129, Geneva IV Civilians, art. 146; see also 18 USC 2441(c)(1).

Evidence of the crimes committed by CIA officers, agents and/or contractors in perpetuating torture are documented in a number of sources, but none as authoritative as the recent report by the International Committee of the Red Cross on CIA abuse and torture of "high-value detainees" in its custody. The failure to seek prosecutions of war criminals, and now by formal pronouncement, puts high officials of the U.S. government in violation of the Geneva Conventions.

Additionally, and no less outrageously, when Eric Holder or Barack Obama tell you the U.S. government does not condone torture, they do not tell you the truth. The government maintains a classic form of torture within the current Army Field Manual, combining partial sensory deprivation, isolation, sleep deprivation, harsh use of fear and dread, all while instilling a sense of hopelessness in prisoners, which is the same sort of psychological torture perfected by the Stalinists of various countries, and advocated in the CIA's own counter-intelligence interrogation manual from the early 1960s, known as the KUBARK Manual.

Those who are so inclined may wish to watch this concluding section of the famous film, "Judgement at Nuremberg." The quote that follows is from Spencer Tracy's speech. As you watch, consider how far subservience to the military and intelligence agencies has acted as an acid to undermine all that this nation once believed and fought for.

The principle of criminal law in every civilized society as this in common: any person who sways another to commit murder, any person who furnishes the lethal weapon for the purpose of the crime, any person who is an accessory to the crime, is guilty....

Before the people of the world let it now be noted in our decision that this is what we stand for: justice, truth, and the value of a single human being.

UPDATE

The release of the memos by OLC justifying torture are up for anyone to view. The link is at the top of the diary. I've looked at the Aug. 1, 2002 memo from Jay Bybee (and any helpers) to John Rizzo at CIA. It's an extraordinary document, and everyone should take a look.

It authorizes the use of ten abusive interrogation techniques: attention grasp, walling, facial hold, facial slap (insult slap), cramped confinement, wall standing (should be called slamming), stress positions, sleep deprivation, insects placed in a confinement box (!), and the waterboard.

The connections between SERE techniques and use CIA operational use of same is made clear throughout, as is the collaboration with medical professionals and SERE military psychologists. Notably, Bybee claims the OLC decision was vetted with interrogation experts, SERE experts, and "outside psychologists". One wonders who the latter were, and I would like to see the American Psychological Association ask for an immediate investigation of who these "outside psychologists" were.

Throughout the document there are blacked-out sections, mostly those that obviously relate to names and identities. But not entirely, as there are whole paragraphs blocked out in sections that evidently go into more details than DoJ wished to release.

As you read these documents and their bogus claims of authority to torture, imagine you are one of the interrogators getting these orders (place insects in a confinement box! waterboard!). And remember, finally, that the CIA and/or military used torture prior to the authoring of these memos (also see this link), so Holder's "they were only following orders" defense is pure BS from top to bottom.

Also posted at Daily Kos