As Marty Lederman wrote about here, the APA Council of Representatives made waves on Friday by approving, with a near-unanimous vote, a resolution that (1) bans psychologists from national security interrogations, (2) explicitly aligns the APA’s definitions of torture and cruel, inhuman, or degrading treatment or punishment with international human rights law, and (3) prohibits psychologists from working in Guantánamo, “black sites,” “foreign vessels in international waters, or sites where detainees are interrogated under foreign jurisdiction, unless they are working directly for the persons being detained or for an independent third party working to protect human rights or providing treatment to military personnel.”
It was a stunning about-face for the APA. Having spent the better part of the last eight years supporting the “dissident psychologists” in their battle against the organized profession, I had trouble believing my ears as the steady wave of yesses rolled through that Toronto conference room last week. It was as if we had stepped into an alternate reality.
I predict that ultimately, this resolution will be more powerful than its AMA and American Psychiatric Association counterparts precisely because it took years of dogged advocacy to achieve. The APA’s bad behavior was a mobilizing force for psychologists of conscience. The organization now faces a savvy group of reformers that understand its playbook and will keep pressing for enforcement. I look forward to seeing how they ride this wave of momentum.
Below are some initial reflections on the substantive provisions of the resolution, with responses to some of the questions Marty raised last week, where relevant.
Work Settings Ban
Marty asked whether the ban on psychologists working at Guantánamo and the sites mentioned carries the same weight as the other two provisions, given that it appears only in the section of the resolution dictating the contents of the letter the APA must send to “appropriate officers of the U.S. government.” Here is the relevant provision (emphasis added):
BE IT FURTHER RESOLVED, that in keeping with the “Actions to be Undertaken by APA” as stipulated in the 2013 Council Resolution, APA shall send official correspondence to the appropriate officers of the U.S. government, including the President, Secretary of Defense, Attorney General, CIA Director, and Congress, to inform them that APA has adopted policy changes to expand its human rights protections to safeguard detainees in national security settings against torture and cruel, inhuman, or degrading treatment or punishment. [7]
1) The first of these communications will be sent as soon as possible after this amended policy is passed, and will state – It is a violation of APA policy for psychologists to conduct, supervise, be in the presence of, or otherwise assist any individual national security interrogation, nor may a psychologist advise on conditions of confinement insofar as those might facilitate such an interrogation. Furthermore, based on current reports of the UN Committee Against Torture and the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, it is also a violation of APA policy for psychologists to work at the Guantánamo Bay detention facility, “black sites,” vessels in international waters, or sites where detainees are interrogated under foreign jurisdiction “unless they are working directly for the persons being detained or for an independent third party working to protect human rights” or providing treatment to military personnel. To protect these psychologists from the consequences of violating their obligations under the APA Ethics Code, APA requests that psychologists be withdrawn from any role in individual national security interrogations or conditions of confinement that might facilitate such an interrogation. Furthermore, APA requests that psychologists working at prohibited sites, as described above, be offered deployment elsewhere.
I read the ban as constituting policy and carrying the same weight as the other two provisions. The drafting is awkward and less than ideal, but the directive is clear, and if Council members did not want this ban to become APA policy, why would they approve a measure directing their leadership to inform federal officials that the continued employment of psychologists at these sites would be a policy violation?
According to Dan Aalbers, the original author of resolution 23(B), this language finds its origin in the 2008 membership referendum that called for the removal of psychologists from working in settings where persons are held “outside of, or in violation of” international law. Given that the membership had already approved the 2008 measure, he saw “no reason to repeat it when [the resolution] could just reference it.”
(For a detailed account of how APA Ethics Director Steve Behnke and colleagues colluded with military psychologists to ensure that the 2008 petition did not get formally adopted earlier, see pages 429-449 of the Hoffman report. That story is critical to understanding why this resolution is such a big deal: it hastaken seven years, a 4+ million dollar investigation, and a massive scandal for the organization to finally follow the will of its membership.)
Closing the CIDTP Loophole
23(B) says that psychologists “may not engage directly or indirectly in any act of torture or cruel, inhuman, or degrading treatment or punishment” of any person, regardless of nationality or location of detention. Under the governing interpretations of international human rights bodies, what does this mean as a practical matter for psychologists working in Guantánamo?
It means they should immediately cease any support or involvement in force-feeding, arbitrary genital searches, grossly inadequate care of patients suffering from serious mental health disorders, prolonged isolation, incommunicado detention, and—-here’s the kicker–indefinite detention.
These can all constitute CIDTP or torture according to authoritative international legal bodies (see here, here, here, here, and here), and the Inter-American Commission on Human Rights expressed serious concern just last week about recent reports of their continued practice at Guantánamo.
Taken together, they also provide additional support for why it’s impossible for psychologists to remain in Guantánamo without running afoul of this policy. (Unless they are “working directly for the persons being detained or for an independent third party working to protect human rights,” a category that should be the norm but for now is exceedingly rare, as far as I know. A vital next step will be to ensure greater access for these providers.)
Interrogation Ban’s Exemption for Domestic Law Enforcement
About Marty’s question on why the resolution includes a carve-out for psychologists working with domestic law enforcement: the short answer seems to be politics. The opposition among forensic psychologists would have been strong and advocates feared that a broader ban would fail to garner the necessary votes. I can relate, having encountered in 2009 serious resistance from the forensic psychology lobby to legislation that would ban all New York licensed health professionals from interrogations, regardless of where they practiced. The Guardian reports that reformers are “hoping to expand the prohibitions to prevent psychologists from abetting ‘domestic cruelty’ in the US justice system.” This is crucial. I agree that there is no meaningful reason to distinguish between the two: psychologists should not be in the business of exploitation, end of story.
However, note that the carve-out for domestic law enforcement applies only to the interrogation ban, not to the prohibition on involvement in torture and CIDTP as defined by international human rights bodies. This means that under this policy, psychologists in domestic law enforcement, corrections, and immigration settings still owe people in their custody the broader protections afforded by international human rights law.