American Psychological Association Review of Ethical Guidelines, Interrogations and Torture

The following report relating to the involvement of prominent psychologists in the government’s enhanced interrogation program was released by the American Psychological Association earlier this month.

REPORT TO THE SPECIAL COMMITTEE OF THE BOARD OF DIRECTORS OF THE AMERICAN PSYCHOLOGICAL ASSOCIATION

566 pages
July 2, 2015

In November 2014, the Board of Directors of the American Psychological Association engaged our Firm to conduct an independent review of allegations that had been made regarding APA’s issuance of ethical guidelines in 2002 and 2005, and related actions. These ethical guidelines determined whether and under what circumstances psychologists who were APA members could ethically participate in national security interrogations.

The gist of the allegations was that APA made these ethics policy decisions as a substantial result of influence from and close relationships with the U.S. Department of Defense (DoD), the Central Intelligence Agency (CIA), and other government entities, which purportedly wanted permissive ethical guidelines so that their psychologists could continue to participate in harsh and abusive interrogation techniques being used by these agencies after the September 11 attacks on the United States. Critics pointed to alleged procedural irregularities and suspicious outcomes regarding APA’s ethics policy decisions and said they resulted from this improper coordination, collaboration, or collusion. Some said APA’s decisions were intentionally made to assist the government in engaging in these “enhanced interrogation techniques.” Some said they were intentionally made to help the government commit torture.

Allegations along these lines had been most recently and most prominently made in a book by New York Times reporter James Risen, published in October 2014, based in part on new evidence he had obtained. Such allegations had also been made for many years—since APA’s issuance of ethical guidelines in 2005—by numerous APA critics both within and without APA. APA engaged us to look back at these events that occurred years ago, to conduct a “definitive” and “thorough” investigation into the allegations and all relevant evidence, and to report what happened and why. The APA Board instructed us to go “wherever the evidence leads” and to be completely independent, and we have been. A Special Committee of the APA Board of Directors was formed, which stressed to us that our inquiry should be broad, so that the allegations could be addressed in a full and complete manner. We have done our best within the past seven months to fulfill that mandate.

The specific question APA has asked us to consider and answer is whether APA officials colluded with DoD, CIA, or other government officials “to support torture.” The allegations we have been asked to address frame the question more broadly at times. As a result of our investigation, we can report what happened and why. And as part of that description, we answer whether there was collusion between APA and government officials, and if so, what its purpose was.

Fourteen years later, the attacks of 9/11 remain seared in the memories of all Americans old enough to recall them. Beyond the 2,977 killed, many others were personally and permanently affected by the attacks. All of us can remember where we were, and the horrific and shocking images of the attacks’ immediate consequences.

The attacks resulted in the nation going to war in Afghanistan and, later, Iraq, and at home created virtually universal feelings of anger, patriotism, and unity of purpose against those who had committed the attacks. There was a common, shared desire to help our national and local governments respond, either specifically with regard to the attacks or generally with regard to the threat of terrorism.

As we engaged in our task of looking back at important events relating to APA that occurred in the years after 9/11, we have kept firmly in mind the strong and widespread feelings and perceptions from that time regarding the attacks themselves and the threat of future harm. Certainly, those feelings and perceptions were different one week, one year, four years, and ten years after 9/11. Being appropriately sensitive to the mindset of the time would therefore require some precision about which time is at issue. But in general, we remain aware that the passage of time may cause one to forget the sharpness of the feelings immediately after 9/11. And as we have engaged in our historical task, we have done our best to remember with clarity the feelings of these times.

One critical part of the national government’s response to the attacks was an attempt to obtain information about how the attacks occurred, whether future attacks were being planned, and where future threats might come from. An important part of that attempt was the interrogation of individuals who had been captured in Afghanistan and elsewhere and were in U.S. custody at Guantanamo Bay and other locations, to determine if they had relevant information. The heart of our inquiry relates to APA’s issuance of ethical guidelines that determined when psychologists could ethically participate in such interrogations. In June 2005, APA convened a task force on the topic. The task force issued a report, largely drafted during the three-day meeting by the APA Ethics Director in consultation with the task force. The report concluded that psychologists could ethically play a role in such interrogations and articulated some ethical guidelines regarding their participation. Less than one week later, the APA Board of Directors, in an emergency session, adopted the report as APA policy and publicized it.

Almost immediately, and for the next ten years, the report and APA’s actions in convening the task force, selecting its members, conducting the meeting, drafting the report, and reacting to attempts to change the report’s policy have created widespread and intense controversy within APA and the broader psychology community. Among other things, the critics have charged that the policy set few meaningful limits on the participation of psychologists in interrogations, despite widespread concerns about abusive conduct in such interrogations, and must therefore have been closely coordinated with the government (perhaps principally the Defense Department and the CIA) and motivated by a desire to curry favor with the government.

The defenders of the task force report and APA’s actions, inside and outside APA, say that the criticism is baseless, and denounce the actions of the critics as bullying and their words as false and defamatory. They have accused the critics of recklessly damaging reputations and told us that the critics must be acting out of a political and financial motivation unrelated to the merits of their position. Others have accused the critics of being automatically anti-military, such that any involvement by psychologists in national security endeavors would be considered unethical. To these defenders, the APA staff and members who worked most closely on APA’s ethics policies are (as they have told us) American heroes, and the fact that they have been attacked rather than thanked for their service to their profession and the country is a tragedy.

Within about a year after 9/11, information began to emerge publicly about the manner in which individuals taken into U.S. custody abroad in the war on terror were being treated. Fourteen years later, a great deal of information has become publicly available about this treatment, including from reports by the Senate Select Committee on Intelligence (2014) and the Senate Armed Services Committee (2008), although more information emerges on an ongoing basis.

This information establishes that in the months following 9/11, the President authorized the CIA to engage in “enhanced interrogation techniques.” These techniques were not methods of asking questions of a detainee, but were rather ways of attempting to break the will of uncooperative detainees so that they would answer the interrogators’ questions and provide intelligence information. These “techniques” included waterboarding, harsh physical actions such as “walling,” forced “stress positions,” and the intentional deprivation of necessities, such as sleep and a temperature-controlled environment. The Secretary of Defense authorized the Defense Department to engage in a similar set of “enhanced interrogation techniques,” although waterboarding was excluded.

The Justice Department office in charge of authoritatively interpreting U.S. law, the Office of Legal Counsel, wrote memos to the CIA in 2002 defining “torture” in a very narrow way. Acts intentionally causing pain to individuals in U.S. custody abroad could only rise to the level of torture, they said, if the effect was equivalent to the pain of a “serious physical injury such as organ failure, impairment of bodily function or even death.” Acts intentionally causing psychological harm to such captives would only count as torture if they caused “significant psychological harm” that lasted “for months or even years,” such as the development of an actual mental disorder. The memos emphasized that understanding “the context” of the act was important, and that “it is difficult to take a specific act out of context and conclude that the act in isolation would constitute torture.” The memos added that, regardless of what actions causing psychological harm were taken by interrogators, the actions could not be considered torture if the interrogator could show that he “did not intend to cause severe mental pain.” Interrogators could show that they lacked this intent by “consulting with experts or reviewing evidence gained in past experience.”

In 2003, based in part on these Justice Department memos, Defense Department attorneys wrote a report concluding that a U.S. law barring torture by military personnel was inapplicable to interrogations of detainees, and that causing harm to an individual in U.S. custody abroad could be justified “in order to prevent further attacks” on the United States by terrorists. The report, which essentially repeated the conclusions of the DOJ memos regarding the narrow definition of torture, and became the basis for an authorization to the military command at Guantanamo Bay to use certain interrogation techniques not included in the Army Field Manual. The authorization repeated that the Geneva Conventions were not applicable to the detainees held at Guantanamo.

By June 2005, much of this information had been made public, including the analysis of the Justice Department memos and the Defense Department report. In addition, numerous detailed allegations and accounts of abusive interrogation practices had been made public, including from the International Committee for the Red Cross, which monitored activity at Guantanamo Bay, and from media reports, which quoted military interrogation logs and government officials who described abusive interrogation practices at CIA “black sites.” As we write this report, the CIA’s use of “enhanced interrogation techniques” is well documented, including in the Senate Intelligence Committee’s 2014 report. Among other things, psychologist and CIA contractor Jim Mitchell described in a recent, nationally-broadcast TV interview how he engaged in waterboarding detainees—including how he decided whether to pour water over the strapped-down and blindfolded detainee’s face for 10 seconds, 20 seconds, or 40 seconds. The Defense Department’s use of enhanced interrogation techniques has also been documented to some degree, including in the Senate Armed Services Committee’s 2008 report.

The critics of APA’s actions, decisions, and statements relating to this issue, including the 2005 task force report, say that they are horrified by the involvement of psychologists in these types of abusive interrogation methods, and find APA’s actions that facilitated or allowed such involvement to be atrocious. They are most critical of the 2005 task force report, but also sharply criticize subsequent APA policy actions on this issue, its handling of related disciplinary complaints against certain members, and some of the key ethics code revisions that APA made in 2002.

Based on the evidence available to them of important interactions between APA and parts of the government, they believe that the only logical explanation for APA’s action is collusion or close coordination with the government. They describe APA’s apparent motive and intent in different ways, from a desire to curry favor with the government to an intent to help government officials engage in torture. And some are convinced that a comparison of the timing of APA’s actions and the timing of the Bush Administration’s actions establishes that APA was acting in explicit and close coordination with high-level Administration officials. Some label APA’s actions “criminal,” and have called out by name the APA officials and employees most involved with this issue, with a request that they be prosecuted. They have said that APA’s refusal to strictly limit—if not prohibit—the involvement of psychologists in national security interrogations on ethical grounds created an indelible stain on the entire profession, and a warped and improper definition of what it means to be a psychologist.