Ethics, Human Rights, and Interrogations:
Abstract and Keywords
From 2004 through 2010, the American Psychological Association expended considerable time and resources examining the ethical aspects of psychologists’ involvement in national-security-related interrogations. In this chapter, the authors examine APA’s evolving position, beginning with the reasons that stimulated APA to begin its work on ethics and interrogations. The authors discuss in detail the policies adopted by the APA during these years and identify the motivations that led to each further development in APA policy. In addressing a series of policies adopted by APA, the authors highlight the considerable debate within the Association concerning the appropriate position for the APA to adopt and provide an overview of why the issue was so challenging for the APA membership.
In 2004, the American Psychological Association (APA) began to explore the ethical aspects of psychologists’ involvement in national-security-related interrogations. APA’s decision to address this issue on the Association level came primarily from questions that members raised regarding ethics and national-security-related activities. As these members pointed out, the “Ethical Principles of Psychologists and Code of Conduct” (APA, 2002)—APA’s Ethics Code—offered substantial guidance on issues that had been central to the practice of psychology for many decades, such as informed consent, research ethics, and authorship. The Ethics Code appeared to offer less guidance, at least in an explicit manner, regarding the ethical challenges that national-security-related work presented. For the next several years, APA’s Council of Representatives, the Association’s governing body, spent significantly more time exploring the ethical aspects of psychologists’ involvement in national-security-related interrogations than it spent considering any other single issue. Council adopted a series of resolutions on the involvement of psychologists in interrogations and took the rare step of amending the APA Ethics Code outside a full Ethics Code revision process. In addition to the work of Council, the APA membership passed a resolution related to national-security-related settings which established new APA policy.
In this chapter, we review APA’s positions related to ethics and interrogations. The review is not intended to capture or explain every aspect of the Association’s extensive work since 2004 on this topic nor, given the number and complexity of the issues, could it do so. Rather, the review is intended to highlight central aspects of the actions taken by the Association. Readers are strongly encouraged to read the original Association texts and related documents (http://www.apa.org/news/press/statements/interrogations.aspx) for a comprehensive understanding of the Association’s evolving position.
The policies set forth in the sections that follow were the subject of considerable discussion, debate, and contention both while they were being drafted and after. Certain members in the Association felt strongly that psychologists should have no (p. 51) involvement whatsoever in interrogations. Other members felt that psychologists did have a role in interrogations but should not be involved in settings that were out of compliance with international law. Still other members felt that psychologists should be present wherever interrogations are conducted to help ensure that interrogations are conducted in a safe, legal, ethical, and effective manner. All of these members brought great passion and energy to their positions, and all contributed their voices to APA’s evolving position.
The Report of the Presidential Task Force on Psychological Ethics and National Security
In 2004, APA President Ron Levant determined that a presidential task force was the most appropriate vehicle for analyzing the ethical aspects of psychologists’ involvement in national-security-related work. He therefore appointed the Presidential Task Force on Psychological Ethics and National Security (PENS). Meeting in February 2005, the APA Board of Directors charged the Task Force to
[E]xamine whether our current Ethics Code adequately addresses [the ethical dimensions of psychologists’ involvement in national-security-related activities], whether the APA provides adequate ethical guidance to psychologists involved in these endeavors, and whether APA should develop policy to address the role of psychologists and psychology in investigations related to national security.
At the time the Task Force met in June 2005, media reports had surfaced regarding individuals having been abused in U.S. detention facilities. Nonetheless, the PENS Task Force did not adopt an investigative or adjudicatory role:
The Task Force noted that the Board of Directors’ charge did not include an investigative or adjudicatory role, and as a consequence emphasized that it did not render any judgment concerning events that may or may not have occurred in national-security-related settings.
The Task Force members reasoned that any competent investigation would require both subpoena power and security clearances. As a private association, APA does not have subpoena power and many of the individuals who would be involved in some aspects of conducting such an investigation, such as APA staff, do not have the necessary security clearances. As a result, the Task Force determined that any attempt to conduct an investigation would be ineffective and would serve only to demonstrate the futility of such an endeavor by APA. The subsequent work of the Senate Armed Services Committee, among other congressional committees, has underscored the superiority of congressional investigations into the relevant events.
As an introduction to the 12 statements that the Task Force set forth in its report to guide psychologists’ national-security-related work, the Task Force made two points. The Task Force viewed each of these points as critical to the context in which the report would be read. The first point was in response to an argument that advising or consulting to interrogations, because this role is outside the scope of a health-care-provider role, is likewise outside the purview of the Ethics Code. The Task Force felt it necessary to reject this argument forcefully at the outset of the report. In doing so, the Task Force emphasized that regardless of their role, psychologists are always bound by the Ethics Code:
when psychologists serve in any position by virtue of their training, experience, and expertise as psychologists, the APA Ethics Code applies. The Task Force thus rejected the contention that when acting in roles outside traditional health-service-provider relationships psychologists are not acting in a professional capacity as psychologists and are therefore not bound by the APA Ethics Code.
The second point emphasized by the Task Force is that psychologists have unique contributions to make when advising and consulting to interrogation processes:
Acknowledging that engaging in such consultative and advisory roles entails a delicate balance of ethical considerations, the Task Force stated that psychologists are in a unique position to assist in ensuring that these processes are safe and ethical for all participants.
In this statement, the Task Force affirmed that psychologists have a valuable contribution to make to interrogation processes. The report goes on to expound on this notion by identifying contributions in both the operational and the research arenas.
Thus, the context for the main thrust of the PENS Task Force report—the report’s 12 guiding statements—is that psychologists are always bound by the Ethics Code and that psychologists have valuable and ethical contributions to make in (p. 52) interrogation processes (APA, Presidential Task Force on Psychological Ethics and National Security, 2005). Put simply, the Task Force viewed the 12 statements as flowing directly from what was already contained in the APA Ethics Code, which governs national-security-related work as it governs all areas of psychologists’ professional lives.
Having set this context, the Task Force set forth its 12 statements as guidance for psychologists’ involvement in interrogation processes. These 12 statements became a foundation for further Association work in the following years:
1. Psychologists do not engage in, direct, support, facilitate, or offer training in torture or other cruel, inhuman, or degrading treatment.
2. Psychologists are alert to acts of torture and other cruel, inhuman, or degrading treatment and have an ethical responsibility to report these acts to the appropriate authorities.
3. Psychologists who serve in the role of supporting an interrogation do not use health-care-related information from an individual’s medical record to the detriment of the individual’s safety and well-being.
4. Psychologists do not engage in behaviors that violate the laws of the United States, although psychologists may refuse for ethical reasons to follow laws or orders that are unjust or that violate basic principles of human rights.
5. Psychologists are aware of and clarify their role in situations where the nature of their professional identity and professional function may be ambiguous.
6. Psychologists are sensitive to the problems inherent in mixing potentially inconsistent roles such as health care provider and consultant to an interrogation, and refrain from engaging in such multiple relationships.
7. Psychologists may serve in various national-security-related roles, such as a consultant to an interrogation, in a manner that is consistent with the Ethics Code, and when doing so psychologists are mindful of factors unique to these roles and contexts that require special ethical consideration.
8. Psychologists who consult on interrogation techniques are mindful that the individual being interrogated may not have engaged in untoward behavior and may not have information of interest to the interrogator.
9. Psychologists make clear the limits of confidentiality.
10. Psychologists are aware of and do not act beyond their competencies, except in unusual circumstances, such as set forth in the Ethics Code.
11. Psychologists clarify for themselves the identity of their client and retain ethical obligations to individuals who are not their clients.
12. Psychologists consult when they are facing difficult ethical dilemmas.
The 12 statements are based on themes central to the Ethics Code. First, psychologists do not inflict harm; second, psychologists retain ethical obligations to all individuals they work with, even those who may not be identified as “clients”; third, psychologists keep separate incompatible roles; and fourth, psychologists do not go beyond their competencies. In keeping with the Board of Directors’ mandate to explore whether the Ethics Code adequately addresses the ethical challenges faced by psychologists in national-security-related roles, the PENS report specifies how the Task Force derived its statements from the Ethics Code. A careful reading of the report thus reveals how the Task Force took themes central to the Ethics Code and applied them to a national-security-related context, specifically that of interrogations.
The PENS report emphasized how the locus of moral agency must reside in the individual psychologist:
The development of professional skills and competencies, ethical consultation and ethical self-reflection, and a willingness to take responsibility for one’s own ethical behavior [emphasis added] are the best ways to ensure that the national-security-related activities of psychologists are safe, legal, ethical, and effective.
This point is important because it serves to recognize the limits of ethics codes and professional associations in the ethical behavior of individual psychologists. Ultimately, in the eyes of the Task Force, each psychologist serving in this role must make a decision for which he or she will accept ethical responsibility.
The report called for research into effective ways of gathering information:
Psychologists should encourage and engage in further research to evaluate and enhance the efficacy and effectiveness of the application of psychological science to issues, concerns and operations relevant to national security. One focus of a broad program of research is to examine the efficacy and effectiveness of (p. 53) information-gathering techniques, with an emphasis on the quality of information obtained.
The report issued a further call for research on interrogators themselves:
In addition, psychologists should examine the psychological effects of conducting interrogations on the interrogators themselves to explore ways of helping to ensure that the process of gathering information is likely to remain within ethical boundaries.
The report’s calls for research are noteworthy, both by virtue of underscoring the value of the scientific contributions psychologists are poised to make in this area of practice and because such calls highlight how little information is available to guide current practices.
The report also placed significant emphasis on culture and ethnicity:
Psychologists working in this area should inform themselves of how culture and ethnicity interact with investigative or information-gathering techniques, with special attention to how failing to attend to such factors may result in harm.
The report returned several times to the importance of understanding culture and ethnicity in eliciting information. This emphasis highlights the notion of competence, insofar as to be competent in this role, psychologists must be knowledgeable about and sensitive to how culture and ethnicity are factors in the process of gathering information.
Each of these points—identifying the individual psychologist as the ultimate locus of moral agency, calling for a broad range of research, and repeatedly underscoring the centrality of culture and ethnicity in information-eliciting processes—is critical to understanding the significance of the PENS report.
The Task Force was mindful that the PENS report would be APA’s initial statement on a complex and challenging topic and that much work would inevitably follow. The Task Force therefore explicitly located itself in an unfolding story by stating that the APA should
View the work of this Task Force as an initial step [emphasis added] in addressing the very complicated and challenging ethical dilemmas that confront psychologists working in national-security-related activities. Viewed as an initial step in a continuing process [emphasis added], this report will ideally assist APA to engage in thoughtful reflection of complex ethical considerations in an area of psychological practice that is likely to expand significantly in coming years.
Thus, rather than to end ethical exploration, the PENS report was written to begin APA’s discussion. Read in this manner, the PENS report, far from foreclosing further consideration of ethics and interrogations, was an invitation to the Association to embrace the challenging ethical questions raised by an area of practice that is not explicitly and comprehensively delineated in the 2002 APA Ethics Code, but whose ethical foundation, like that of the rest of psychology, can be found in the Code’s principles and standards.
Following the issuance of the PENS report, criticism arose because of the composition of the Task Force. It was pointed out that the majority of members on the PENS Task Force had Department of Defense or national-security-related affiliations. Such affiliations, it was argued, compromised the objectivity of the Task Force’s work. In response to this criticism, others argued that it was necessary to have a task force composed primarily of individuals with extensive subject-matter knowledge who could fashion a report that would be most useful to individuals engaged in intelligence-gathering activities.
2005 Actions by the APA Ethics Committee, Board of Directors, and Council of Representatives
The PENS Task Force met on the final weekend of June 2005. On completion of the final draft of its report, the Task Force forwarded the report to the APA Ethics Committee, which found the 12 statements appropriate interpretations and applications of the APA Ethics Code. Thus, the Ethics Committee determined that the PENS Task Force had properly applied relevant aspects of the Ethics Code in deriving its conclusions about the guidelines that govern psychologists’ involvement in interrogations.
Following review by the Ethics Committee, the Board of Directors reviewed the PENS report. The Board has available to it a mechanism in the APA bylaws whereby it may adopt policy for the Association without prior review by APA’s governing body, the Council of Representatives. Relying on this mechanism, in July 2005, the Board adopted the 12 statements in the PENS report as APA policy. The reason for the Board’s acting without delay was to provide immediate guidance for psychologists engaged in this area of work.
The following month, in August 2005, at the APA annual convention in Washington, DC, the (p. 54) Council of Representatives reviewed the PENS report. The Council was not asked to adopt the PENS report as APA policy—the Board of Directors had taken action the previous month—but the Council did approve a series of motions in response to the PENS report. Several of these motions adopted recommendations made by the PENS Task Force, for example, that the APA write a casebook and commentary on the report and that the APA explore the possibility of creating a mechanism to provide ethics consultation to psychologists working in national security roles.
In addition to affirming several of the recommendations in the PENS report, Council adopted the following language:
Council acknowledges, based on the U.N. Convention Against Torture, that there are no exceptional circumstances whatsoever, whether induced by a state of war or a threat of war, internal political instability or any other public emergency, that may be invoked as a justification for torture, including the invocation of laws, regulations, or orders.
This statement, that there is no justification for torture, was adopted in two subsequent Council resolutions discussed in the sections that follow. In this manner, the APA’s governing body had affirmed and reaffirmed that torture is always and in every instance unethical.
The 2006 Resolution
Following the Council’s review of the PENS report at the 2005 annual convention, APA members had an opportunity to read the PENS report and provide feedback on their reactions. Many statements in the PENS report—for example, that “psychologists do not engage in, direct, support, facilitate, or offer training in torture or other cruel, inhuman, or degrading treatment”—met with universal agreement and support. Others drew critical reaction, such as the fourth of the 12 Task Force statements that “psychologists do not engage in behaviors that violate the laws of the United States, although psychologists may refuse for ethical reasons to follow laws or orders that are unjust or that violate basic principles of human rights.” Criticism of this statement arose because it made U.S. law, rather than international human rights norms, the standard to which psychologists who are members of the American Psychological Association must adhere. Between the 2005 and 2006 meetings, a consensus had emerged among Council members that the PENS report required elaboration.
As August 2006 approached, a group of APA division leaders and Council members began drafting a resolution that would be placed before Council at the APA’s annual convention in New Orleans. The drafters focused on several issues from the PENS report that they believed merited further clarification or elaboration. At the same time, the drafters wanted to write a resolution that would not be bound to the interrogation context. As a consequence, they used language that would apply broadly across the entire range of work that psychologists do. The breadth of the resolution’s scope is captured by its title, “Resolution Against Torture and Other Cruel, Inhuman, and Degrading Treatment or Punishment” (APA, 2006). The resulting resolution is applicable in all contexts in which psychologists engage in professional activities and so is not limited to advising or consulting to interrogations.
Aspects of the APA’s position that drafters of the 2006 resolution felt invited further clarification and elaboration included the role of international human rights texts in guiding psychologists’ behavior, the definition of torture, and the responsibility of psychologists who become aware of torture to respond. Psychologists drafting language to amend the Ethics Code also believed it important to reaffirm the APA’s “no justification” policy, namely, that there is never a justification for psychologists to engage directly or indirectly in torture. Each of these points was incorporated in the resolution adopted by Council in New Orleans on August 9, 2006.
The 2006 resolution takes three steps to emphasize the role of international human rights texts. First, the resolution identifies specific international texts as relevant to psychologists’ work:
BE IT RESOLVED that, based upon the American Psychological Association 1986 Human Rights Resolution, the APA reaffirms its support for the United Nations Declaration and Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment as well as the joint congressional Resolution opposing torture that was signed into law by President Reagan on October 4, 1984, and further supports the McCain Amendment, the United Nations Basic Principles for the Treatment of Prisoners, and the United Nations Principles on the Effective (p. 55) Investigation and Documentation of Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment.
The second step in the 2006 resolution emphasizing the importance of international human rights texts draws directly on Council’s action in August 2005, by invoking texts that impose an absolute prohibition against torture:
BE IT RESOLVED that the APA reaffirms its support for the United Nations Declaration and Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment and its adoption of Article 2.2, which states
[T]here are no exceptional circumstances whatsoever, whether induced by a state of war or a threat of war, internal political instability or any other public emergency, that may be invoked as a justification of torture. …
The third step in the 2006 resolution emphasizing the importance of international human rights texts is its statement that
based upon the APA’s long-standing commitment to basic human rights including its position against torture, psychologists shall work in accordance with international human rights instruments relevant to their roles.
Thus, the 2006 resolution expands the PENS report’s focus on U.S. law by bringing international human rights texts to the center of the Association’s ethical analyses and by stating that psychologists work in accordance with human rights instruments relevant to psychologists’ roles.
In keeping with the focus on international human rights texts, and responding to a debate regarding the definition of torture occurring in the public arena, the 2006 resolution incorporates a definition of torture from a United Nations Convention:
BE IT RESOLVED that, in accordance with Article l of the United Nations Declaration and Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment,
[T]he term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted upon a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official [e.g., governmental, religious, political, organizational] capacity. It does not include pain or suffering arising only from, inherent in, or incidental to lawful sanctions [in accordance with both domestic and international law]. …
By using a definition of torture taken from a United Nations text, the 2006 resolution moved the Association away from reliance on definitions of torture that had been suggested by individuals within the administration of President George W. Bush and that had been widely rejected. The language in the 2006 resolution therefore explicitly “de-linked” the APA’s work on interrogations from reliance on U.S. administration definitions of torture.
In addition to emphasizing the importance of international human rights texts and providing a definition of torture, the 2006 resolution elaborates the PENS report statement that psychologists have an ethical obligation to report acts of torture and cruel, inhuman, or degrading treatment or punishment (CIDTP). The 2006 resolution states that over and above this reporting obligation, psychologists have an ethical obligation to intervene:
BE IT RESOLVED that should torture or other cruel, inhuman, or degrading treatment or cruel, inhuman, or degrading punishment evolve during a procedure where a psychologist is present, the psychologist shall attempt to intervene to stop such behavior, and failing that exit the procedure ….
The Council adopted the 2006 “Resolution Against Torture and Other Cruel, Inhuman, and Degrading Treatment or Punishment” (APA, 2006) enthusiastically. In relatively short order, however, it became clear that APA’s work on this issue was not yet done. This sense—that the APA had more work to do on the issue—was stimulated by the passion of APA members with widely divergent views on the subject matter and by unfolding events in the public domain. As time went on and more information about what had occurred in national-security-related interrogations came to light, APA members believed that further commentary by the Association on the ethical aspects of interrogation was critical.
The 2007 Resolution
The 2006 resolution spoke broadly across the range of psychologists’ activities. Events in the public (p. 56) domain had been unfolding in a manner that led Council members to believe further elaboration and specification of the APA’s position against torture in the PENS report and the 2006 resolution were necessary. In anticipation of the Council’s 2008 meeting at the annual convention in San Francisco, Council members began to draft a resolution that would reaffirm the APA’s position against torture and apply the PENS report and 2006 resolution to a particular set of individuals: lawful and unlawful enemy combatants, as those terms are defined in the Military Commissions Act of 2006.
The history and development of the 2007 resolution must be viewed in the context of a second proposed resolution that was referred to as the “moratorium resolution.” The moratorium resolution called for a moratorium on psychologists’ involvement as advisors or consultants to interrogations in settings for foreign detainees. At the 2007 annual convention, two possible resolutions were before the Council: an elaboration of the 2006 resolution and the moratorium resolution. Ultimately, the Council decided to vote on a resolution that had wide support within that body and then to vote on a revised moratorium resolution as an amendment to the main resolution. (At that point the amendment was no longer properly a moratorium resolution because it now called for an end—not just a moratorium—to roles for psychologists other than as health care providers at certain detention facilities.) The council adopted the main resolution but did not accept the amendment.
The drafters of the 2007 resolution focused on several areas in which they believed the 2006 resolution would benefit from further elaboration and clarification because it would be applied to enemy combatants. At the same time, the drafters wanted to make clear their strong and continuing support for everything in the 2006 resolution. To achieve these two goals, the 2007 resolution was titled “Reaffirmation of the American Psychological Association Position Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment and Its Application to Individuals Defined in the United States Code as ‘Enemy Combatants’” (APA, 2007). By this title, the drafters made it clear that the 2007 resolution was both reaffirming and drawing on work the APA had already done as well as demonstrating how the APA’s position applied to a particular set of individuals.
The 2007 resolution was therefore intended to achieve multiple goals. These goals included reiterating the APA’s absolute condemnation of torture and CIDTP, identifying specific techniques associated with abusive interrogations in order to condemn and prohibit them, stating that conditions of confinement could themselves constitute torture, endorsing civil disobedience as the ethical response to an order to engage in torture or CIDTP, and calling on U.S. courts of law to reject evidence obtained through torture or CIDTP.
As an initial matter, the resolution reiterated the APA’s prohibition against torture and CIDTP in any and all circumstances:
BE IT RESOLVED that the American Psychological Association unequivocally condemns torture and cruel, inhuman, or degrading treatment or punishment, under any and all conditions, including detention and interrogations of both lawful and unlawful enemy combatants as defined by the U.S. Military Commissions Act of 2006.
Consistent with this prohibition, the resolution reiterated what was, by then, the APA’s longstanding position that there is never a justification for torture or CIDTP:
BE IT RESOLVED that the American Psychological Association affirms that there are no exceptional circumstances whatsoever, whether induced by a state of war or threat of war, internal political instability or any other public emergency, that may be invoked as a justification for torture or cruel, inhuman, or degrading treatment or punishment, including the invocation of laws, regulations, or orders.
The 2007 resolution thereby reaffirmed previous APA statements and resolutions. The 2007 resolution then moved beyond what the APA had previously done in an important way. The 2006 resolution had defined torture according to a United Nations definition. As events in the public domain unfolded, drafters of the 2007 resolution believed that much greater specificity regarding what constitutes torture in the context of interrogations was needed. The drafters therefore identified a list of specific prohibited techniques:
BE IT RESOLVED that this unequivocal condemnation includes all techniques defined as torture or cruel, inhuman or degrading treatment under the 2006 Resolution Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, the United Nations Convention Against Torture, and the Geneva Convention. This unequivocal condemnation includes, but is by no means limited to, an absolute prohibition for (p. 57) psychologists against direct or indirect participation in interrogations or in any other detainee-related operations in mock executions, water-boarding or any other form of simulated drowning or suffocation, sexual humiliation, rape, cultural or religious humiliation, exploitation of phobias or psychopathology, induced hypothermia, the use of psychotropic drugs or mind-altering substances used for the purpose of eliciting information; as well as the following used for the purposes of eliciting information in an interrogation process: hooding, forced nakedness, stress positions, the use of dogs to threaten or intimidate, physical assault including slapping or shaking, exposure to extreme heat or cold, threats of harm or death; and isolation, sensory deprivation and over-stimulation and/or sleep deprivation used in a manner that represents significant pain or suffering or in a manner that a reasonable person would judge to cause lasting harm; or the threatened use of any of the above techniques to the individual or to members of the individual’s family. …
Although this list was well received by members of the Association following the Council’s adoption of the resolution, critics later pointed out that placing the techniques into three categories was problematic. The first category in the list consisted of techniques that are absolutely prohibited, such as mock executions, waterboarding, and sexual humiliation. The second category consisted of techniques such as hooding and forced nakedness “used for the purposes of eliciting information in an interrogation process.” Considered especially problematic was the description of the third and final category—consisting of isolation, sensory deprivation, and overstimulation and/or sleep deprivation—insofar as these techniques were prohibited only when used “in a manner that represents significant pain or suffering or in a manner that a reasonable person would judge to cause lasting harm.” Although there were sound reasons for this categorization, the wording adopted by the Council lent itself to the interpretation that psychologists were to “calibrate” the amount of suffering that a detainee was allowed to experience during an interrogation. Though this possibility had never been the drafters’ intent, soon after convention had ended a consensus emerged that this wording would need to be addressed.
Drafters of the 2007 resolution felt it important to elaborate even further on the concept of torture, beyond identifying specific techniques. Discussions in the public domain had focused primarily on techniques that the resolution identified and prohibited. Over and above specific behaviors, however, were the very conditions of confinement. The 2007 resolution states that conditions of detention settings can themselves constitute torture:
BE IT RESOLVED that the American Psychological Association, in recognizing that torture and other cruel, inhuman or degrading treatment and punishment can result not only from the behavior of individuals, but also from the conditions of confinement, expresses grave concern over settings in which detainees are deprived of adequate protection of their human rights, affirms the prerogative of psychologists to refuse to work in such settings, and will explore ways to support psychologists who refuse to work in such settings or who refuse to obey orders that constitute torture. …
This statement, that conditions of confinement in addition to specific behaviors, may constitute torture, was accompanied by an explicit endorsement of civil disobedience as the ethical response to torture. This endorsement was reiterated in the resolution as consistent with the APA Ethics Code:
BE IT RESOLVED that the American Psychological Association commends those psychologists who have taken clear and unequivocal stands against torture and cruel, inhuman or degrading treatment or punishment, especially in the line of duty, and including stands against the specific behaviors (in lines 81 through 100) or conditions listed above; and that the American Psychological Association affirms the prerogative of psychologists under the Ethical Principles of Psychologists and Code of Conduct (2002) to disobey law, regulations or orders when they conflict with ethics.
In two separate places, then, the 2007 resolution endorsed disobedience in the face of an order to engage in torture or CIDTP and tied this endorsement explicitly to the Ethics Code’s support of civil disobedience.
The 2007 resolution reached beyond psychology in several ways. In one example, the resolution spoke directly to those in government who are in a position to influence interrogation policy:
BE IT RESOLVED that the American Psychological Association calls on the United States government—including Congress, the Department of Defense, and the Central Intelligence Agency—to prohibit the use of these methods in all interrogations and that the American Psychological Association shall inform (p. 58) relevant parties with the United States government that psychologists are prohibited from participating in such methods. …
Following adoption of the resolution, in response to this “Be It Resolved,” the APA wrote letters to the President of the United States, the director of the Central Intelligence Agency, the Attorney General, the Secretary of Defense, and key members of Congress informing them of the APA’s position. In another example of reaching beyond psychology, the 2007 resolution called on U.S. courts to reject testimony derived from torture or CIDTP:
BE IT RESOLVED that the American Psychological Association, in order to protect against torture and cruel, inhuman, or degrading treatment or punishment, and in order to mitigate against the likelihood that unreliable and/or inaccurate information is entered into legal proceedings, calls upon United States legal systems to reject testimony that results from torture or cruel, inhuman, or degrading treatment or punishment.
Thus, the 2007 resolution spoke to members of the Association and to those outside the Association who were in a position to influence policy. Given the significance of this issue to the field of psychology and to the country, the APA felt it entirely appropriate to address both groups to convey both the Association’s absolute prohibition against torture as well as the Association’s analysis that specific techniques associated with harmful and abusive interrogations were considered torture.
The 2008 Amendment
Initial reaction to the 2007 resolution, in particular to the prohibition of specific techniques, was positive. Of particular note to commentators was the resolution’s specificity. As far as the APA could determine, no other mental health association had said precisely what was meant by the word torture in the interrogation context. In adopting the resolution, the APA had now done so.
At the same time the resolution was being well received, a growing consensus began to emerge that language in the paragraph identifying specific techniques lent itself to an interpretation never considered by the drafters. The language in question applied to a category of techniques that were prohibited when “used in a manner that represents significant pain or suffering or in a manner that a reasonable person would judge to cause lasting harm.” According to this interpretation, the role of a psychologist in consulting or advising on an interrogation was to calibrate the degree of pain so that it would not reach the level of significant pain or suffering and so be prohibited by the resolution. The initial reaction of the Council members most closely involved in drafting the resolution’s language was that they had never conceptualized such a role for psychologists. Nonetheless, it became clear that many reading the resolution were confused about what the language meant.
In seeking to clarify the confusion, the drafters revisited why particular language had been applied to the techniques in question, “isolation, sensory deprivation and over-stimulation and/or sleep deprivation.” The reason was that the administration of a detention or correctional facility might require segregating individuals from other inmates or detainees, adhering to specific sleep routines, or depriving detainees or inmates from sensory input that could then expose information regarding a facility’s vulnerabilities. The original wording of the resolution was intended to make it clear that although certain techniques had no legitimate purpose at any time, in any place—sexual humiliation, for example—other activities might have a legitimate role in a detention facility.
In the fall of 2007, several members of the Council began to collaborate in an effort to clarify the resolution’s true intent. There was consensus on what the resolution was intended to accomplish: to identify and prohibit specific techniques associated with interrogations that constitute torture. There was likewise consensus that the resolution was never intended to prohibit a range of activities associated with the efficient and ethical administration of a facility. Over the course of several weeks, a number of editorial possibilities were considered, until the drafters finally proposed language that the Council enthusiastically adopted:
BE IT RESOLVED that this unequivocal condemnation includes all techniques considered torture or cruel, inhuman or degrading treatment or punishment under the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment; the Geneva Conventions; the Principles of Medical Ethics Relevant to the Role of Health Personnel, Particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment; the Basic Principles for the Treatment of Prisoners; or the World Medical Association Declaration of Tokyo. (p. 59) An absolute prohibition against the following techniques therefore arises from, is understood in the context of, and is interpreted according to these texts: mock executions; water-boarding or any other form of simulated drowning or suffocation; sexual humiliation; rape; cultural or religious humiliation; exploitation of fears, phobias or psychopathology; induced hypothermia; the use of psychotropic drugs or mind-altering substances; hooding; forced nakedness; stress positions; the use of dogs to threaten or intimidate; physical assault including slapping or shaking; exposure to extreme heat or cold; threats of harm or death; isolation; sensory deprivation and over-stimulation; sleep deprivation; or the threatened use of any of the above techniques to an individual or to members of an individual’s family. Psychologists are absolutely prohibited from knowingly planning, designing, participating in or assisting in the use of all condemned techniques at any time and may not enlist others to employ these techniques in order to circumvent this resolution’s prohibition.
The language of the amended paragraph was written to make it clear that the prohibition extends to techniques “considered torture or cruel, inhuman or degrading treatment or punishment” under five international human rights texts. Thus, the starting point for the analysis is asking whether a technique is considered torture or CIDTP under the named documents. The amended paragraph underscores these texts as the touchstone for determining what constitutes torture and CIDTP when the paragraph continues, “An absolute prohibition against the following techniques therefore arises from, is understood in the context of, and is interpreted according to these texts.” The drafters of the amended paragraph thus used these international texts to anchor the APA’s position against specific techniques of interrogation. A careful review of the five international texts and the definitions contained therein is therefore essential to understand the APA’s position fully.
During the Council meeting, questions arose to confirm that the amended language would not be unduly broad. As examples, questions were asked regarding whether strip searches are appropriate, whether it is acceptable for a psychologist to advise a hostage negotiation team, whether an individual might be segregated in a cell for safety reasons or to prevent a cover story from being fabricated, and whether an individual might be prevented from seeing his or her surroundings during transportation for security reasons. There was immediate and complete consensus that each of these activities, when reviewed in the context of the five relevant texts and their definitions, did not fall within the prohibition. The point was reemphasized that the texts named in the resolution’s amended paragraph provide the necessary context for the ethical analysis determining whether a particular behavior is prohibited.
The Petition Resolution
The PENS report, the 2006 and 2007 resolutions, and the 2008 amendment had focused almost exclusively on psychologists’ behaviors. These texts set forth rules for psychologists regarding what behaviors were permitted, required, or prohibited. Although psychologists across the Association considered establishing such rules as essential—indeed, all roles for psychologists have governing rules—there was another aspect to the interrogation issue that was stimulating considerable discussion. A large number of APA members believed that in addition to setting forth rules governing specific behaviors for psychologists, the APA should address whether special rules should apply to settings that violate international or U.S. law.
Following adoption of the February 2008 amendment, a group of APA members drafted and brought forth a petition under a provision in the APA bylaws that allows a matter to go before the membership for a direct vote. The petition’s resolution clause stated the following:
Be it resolved that psychologists may not work in settings where persons are held outside of, or in violation of, either international law (e.g., the UN Convention Against Torture and the Geneva Conventions) or the U.S. Constitution (where appropriate), unless they are working directly for the persons being detained or for an independent third party working to protect human rights.
A footnote to this paragraph read, “It is understood that military clinical psychologists would still be available to provide treatment for military personnel.”
The petition was submitted in accordance with the relevant provision of the bylaws. Having received the petition, the APA’s Board of Directors determined that the process should move forward as expeditiously as reasonably possible. Over the next several weeks, pro and con statements were drafted, and the petition resolution was mailed to the APA membership for a vote. In September 2008, the membership adopted the petition resolution.
(p. 60) Following adoption of the petition resolution, a number of questions arose regarding the meaning of the resolution clause. On its surface, the meaning of the clause seemed straightforward. In settings that violate international law or the U.S. Constitution, psychologists are limited to three roles: (a) working directly for the detainee, (b) working for an independent third party that protects human rights, and (c) providing treatment to military personnel. On deeper scrutiny, however, it became clear that the language of the clause raised significant questions that the petition resolution itself did not answer: How was it to be determined whether international law or the U.S. Constitution should apply in a given situation? Who was to determine whether a site was in violation of international law or the U.S. Constitution? Who should arbitrate competing claims regarding whether a site was in or out of compliance with the petition resolution? Does the petition resolution apply to domestic correctional facilities and psychiatric settings, many of which have been adjudicated out of compliance with the U.S. Constitution? In response to these and other questions and in anticipation of the Council’s February 2009 meeting, APA President Alan Kazdin appointed a presidential advisory group.
Leading up to the Council’s February 2009 meeting, two significant events occurred. First, the group appointed by President Kazdin completed the “Report of the APA Presidential Advisory Group on the Implementation of the Petition Resolution” (2008). The 18-page report set forth a series of options for the Council to consider in implementing the petition resolution and addressed a number of the questions that had arisen about the petition resolution’s meaning and implications.
The second significant event that occurred prior to the Council’s meeting was the inauguration of President Barack Obama. On his second day in office, President Obama issued three executive orders that addressed directly the APA’s work on the issue of interrogations. President Obama’s (2009a, 2009b, 2009c) three orders—“Ensuring Lawful Interrogations,” “Review and Disposition of Individuals Detained at the Guantánamo Bay Naval Base and Closure of Detention Facilities,” and “Review of Detention Policy Options”—addressed interrogation behaviors as well as the characteristics of the settings in which detainees are held, including the legal framework that governs the settings. The executive orders were thus highly relevant to the issues at the center of the APA’s attention over the past four years. The Council’s discussion regarding the petition resolution would therefore take place in the context of the advisory group report and the President’s executive orders.
At its February 2009 meeting, with APA President James Bray, the Council took three actions relevant to the petition resolution and the advisory group report. First, the Council took action to render the petition resolution official APA policy as of the February meeting. Had the Council not taken this action, the petition resolution would not have become policy until the following August, in accordance with a provision in the Association Rules. Second, the Council adopted a title for the petition resolution to clarify that it was not intended to be applied broadly to U.S. jails, detention centers, and psychiatric hospitals. The title, “Psychologists and Unlawful Detention Settings With a Focus on National Security,” limited the scope of the petition resolution and made it clear that the petition resolution applied only to detention settings that are unlawful. Each of these limitations is important. Without the limiting title, psychologists in domestic facilities that have nothing to do with national-security-related work might mistakenly believe they are out of compliance with APA policy, and psychologists working in lawful detention settings could mistakenly believe that the petition resolution applies to their work. Third, and finally, the Council received the “Report of the APA Presidential Advisory Group on the Implementation of the Petition Resolution” and forwarded the report to relevant staff and boards and committees for review and appropriate action. Although the advisory group report does not constitute APA policy, the report has been used as a template for APA staff to move forward in implementing the petition resolution. An up-to-date description of the extensive implementation efforts can be viewed on the APA website at http://www.apa.org/news/press/statements/interrogations.aspx.
Amending the Ethics Code
The APA revises its Ethics Code on a periodic basis. These revisions highlight that the field of psychology evolves over time. The revisions also highlight that ethics is a developmental process.
The previous Ethics Code, “Ethical Principles of Psychologists and Code of Conduct” (APA, 1992), contained a standard that addressed conflicts between ethics and law. The 1992 standard stated that when a conflict arose between ethics and law, a psychologist had an ethical obligation to engage in a process of attempting to resolve the conflict. (p. 61) The 1992 Ethics Code did not address what the psychologist should do if attempts to resolve the conflict were unsuccessful; the Ethics Code was simply silent on this point. In such a situation, some psychologists might engage in civil disobedience, whereas others might choose to obey the law. The 1992 Ethics Code did not guide psychologists toward either outcome.
During the 1997–2002 revision process leading up to the adoption of the 2002 Ethics Code, a significant concern arose primarily among forensic psychologists that a psychologist could be “caught” between ethics and law. Such a situation might arise, for example, if a judge ordered a psychologist to render a child custody recommendation without the psychologist’s having conducted an appropriate custody evaluation or if a judge ordered a psychologist to release information that the psychologist believed should be kept confidential. There was an impetus to make clear that if the psychologist was not able to resolve the conflict between ethics and law, the psychologist could follow the law without ethical sanction. In October 2000, at a regularly scheduled meeting of the Ethics Code Revision Task Force, draft language was added to the ethical standard on conflicts between ethics and law (Standard 1.02), to make clear that in cases in which the psychologist could not resolve the conflict between ethics and law, the psychologist could follow the law and not be disciplined. The Council adopted this language in August 2002.
Subsequent to the Council’s adoption of the 2002 Ethics Code, legal memoranda from the Bush administration were released that determined that techniques widely regarded as torture could lawfully be used in interrogations. The language in Standard 1.02, which had been drafted in October 2000 and thus had predated by several years any discussions in the Association regarding interrogation, nonetheless appeared to dovetail with the Bush administration legal memoranda to permit a psychologist to engage in interrogations tantamount to torture and then to use the Ethics Code as a defense. In such a case, the defense would be that the revised Standard 1.02 allowed a psychologist to follow the law in cases in which law and ethics conflict.
As the APA membership and the Council of Representatives came to realize that Standard 1.02 could be interpreted in a way that the drafters of the 2002 code had never considered, an impetus grew to amend the standard. The Ethics Committee put out calls for proposed language. At its February 2010 meeting, the Council adopted the following amended language, which states that Standard 1.02 cannot be used as a defense to a violation of human rights:
Standard 1.02, Conflicts Between Ethics and Law, Regulations, or Other Governing Legal Authority
If psychologists’ ethical responsibilities conflict with law, regulations, or other governing legal authority, psychologists clarify the nature of the conflict, make known their commitment to the Ethics Code, and take reasonable steps to resolve the conflict consistent with the General Principles and Ethical Standards of the Ethics Code. Under no circumstances may this standard be used to justify or defend violating human rights.
Similar language was added to Ethical Standard 1.03, Conflicts Between Ethics and Organizational Demands. The amended language of 2010 put to rest the concern that Standards 1.02 and 1.03 could be used in a manner neither the drafters of the 2002 Ethics Code nor the Council of Representatives had ever anticipated.
Ethics can be viewed as a developmental process. As psychologists face new challenges in their professional lives, they encounter ethical dilemmas that have not been fully analyzed and resolved. Ideally, the APA will serve as a resource for its members by supporting a thoughtful, informed approach to addressing the ethical aspects of evolving areas of practice.
This approach was in evidence in San Francisco during the 2007 annual convention when the APA sponsored extensive programming on the ethical aspects of psychologists’ involvement in interrogations. “Ethics and Interrogations: Confronting the Challenge” was a convention program consisting of nine two-hour sessions and 44 participants with widely divergent views on the appropriate role for psychologists in military interrogations. The Board of Directors strongly supported the program as a way to ensure that all points of view were presented, as a prelude to the Council’s deliberations and further action. From the Board’s perspective, it was essential for the APA to embrace the debate, and the Board ensured an open and collegial forum for APA members to come together and voice their views.
From 2005 through 2010, APA’s governing body and the APA membership together expended extraordinary resources addressing the issue of psychologists’ involvement in interrogations. A review of statements and resolutions during this period (p. 62) shows the development and elaboration of the Association’s position. The APA’s work was respectful of the importance and complexity of the issue and was intended to provide ethical guidance to its members and send an unambiguous and emphatic message to the public: The world’s largest association of psychologists recognizes the valuable and ethical contributions of its members involved in work related to our nation’s security and forcefully condemns and will not tolerate torture.
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