What, exactly, does yesterday’s American Psychological Association resolution prohibit?

By an overwhelming vote of 156-1 (with seven abstentions and one recusal)–so lopsided that it stunned even its proponents–the American Psychological Association’s Council of Representatives yesterday approved a resolution that the APA describes as “prohibit[ing] psychologists from participating in national security interrogations.”

What does Approved Resolution No. 23B do, exactly?  As I read it, it does three principal things, in ascending order of importance:

1.  It reaffirms an existing APA ethical prohibition that psychologists “may not engage directly or indirectly in any act of torture or cruel, inhuman, or degrading treatment or punishment,” a prohibition that “applies to all persons (including foreign detainees) wherever they may be held”; and it “clarifies” that “cruel, inhuman, or degrading treatment or punishment” (CIDTP) should be understood not (or not only) as that term is defined in the U.S. Senate’s understandings of, and reservations to, the Convention Against Torture, but instead in accord with the broadest understanding of CIDTP adopted by any international legal body at the relevant time:  the definition “continues to evolve with international legal understandings of this term.”  (The three paragraphs in question are very awkwardly drafted; but I think it’s fair to read them as saying that if any international legal body–including but not limited to the UN Committee Against Torture, UN and regional human rights tribunals such as the European Court of Human Rights and the Inter-American Court of Human Rights, and the International Criminal Court–considers an interrogation technique or condition of confinement to be CIDTP, then it is off limits for psychologists to “engage directly or indirectly” in that conduct.)

2.  The Resolution appears to establish a categorical APA “policy” that, wholly separate and apart from any regulation on involvement in torture, CIDTP, or interrogations, a psychologist may not “work at the Guantánamo Bay detention facility, ‘black sites,’ vessels in international waters, or sites where detainees are interrogated under foreign jurisdiction,” unless the psychologist is “working directly for the persons being detained or for an independent third party working to protect human rights,” or is “providing treatment to military personnel.”  I say that the Resolution only “appears” to create this new prohibition because–unless I overlooked something–this new rule will be articulated only in the APA’s communication to the U.S. Government about its new policies.  For some reason, it is not one of the substantive (“BE IT RESOLVED”) provisions of the Resolution itself.  (If readers have information concerning whether this will be a new ethical rule–and, if not, whether the “policy” is enforceable in any way–please let me know.)

3.  Finally, and most significantly, the Resolution establishes a new prohibition that “psychologists shall not conduct, supervise, be in the presence of, or otherwise assist any national security interrogations for any military or intelligence entities, including private contractors working on their behalf, nor advise on conditions of confinement insofar as these might facilitate such an interrogation.”  Psychologists “may,” however, “provide consultation with regard to policy pertaining to information gathering methods which are humane so long as they do not violate the prohibitions of this Resolution and are not related to any specific national security interrogation or detention conditions” (although they might not be permitted to do so at GTMO or other specified locations (see No. 2, above)).

In this respect, the APA is finally aligning its ethics policies with those of the American Medical Association and American Psychiatric Association, which long ago promulgated similar bans.  But not quite aligning all the way . . .

For some reason, the new APA prohibition–unlike its counterparts for doctors and psychiatrists–expressly does not apply to “domestic law enforcement interrogations or domestic detention settings.”  Accordingly, it would appear that psychologists, unlike physicians and psychiatrists, can, for example, assist a police force in procuring confessions or statements that can be used for prosecutions or further investigations (as long as such assistance does not violate other APA injunctions).

The Resolution does not explain the basis for this law-enforcement carve-out.*  If any Just Security readers have information about it, please let me know.

UPDATE:  This final prohibition might have at least two possible, important short-term effects.  First, Jim Risen reports that psychologists are part of the High Value Detainee Interrogation Group [the “HIG”], the interagency group in charge of interrogations of high-level terrorism detainees.  Presumably, such psychologists are now foreclosed from helping the HIG, except to the extent they “provide consultation with regard to policy pertaining to information gathering methods [that] are not related to any specific national security interrogation or detention conditions.”  Or, at least, if they do continue to offer assistance related to “specific national security interrogations,” they risk APA ethics sanctions.  Which leads to the second possible ramification, concerning a possible defection from the APA . . .

Risen also reports the following:

After the vote, about 50 members of the A.P.A.’s military psychology division, including several who were in uniform, held a separate meeting in another conference room in the hotel that hosted the annual meeting.  They expressed frustration and anger.
Tom Williams, the president of the A.P.A.’s military psychology division, said that he thought the language of the ban was overly broad.  “I think the wording could have a large effect on any psychologist in a national security setting,” said Mr. Williams, a retired Army psychologist.  He said that the group may consider splitting off from the A.P.A.  “We are keeping our options on the table,” Mr. Williams said.

 

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*  The Resolution suggests that the reason for the law enforcement carve-out might be that in such settings “detainees are afforded all of the protections of the United States Constitution, including the 5th Amendment rights against self-incrimination (‘Miranda’ rights) and 6th Amendment rights to ‘effective assistance’ of legal counsel.”  Those rights, however, are mostly concerned with the use of statements at trial–they do not, in particular, guarantee the presence of counsel during interrogations; and in general, those trial-related rights apply equally to military detainees (with the exception that voluntary but “un-Mirandized” statements are admissible in military commissions–something that affects very few detainees).  Thus it’s not obvious how the application of such rights might explain the APA’s distinction between psychologists’ involvement in military and law enforcement interrogation settings. 

About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center. He was Deputy Assistant Attorney General at the Office of Legal Counsel from 2009-2010, and Attorney Advisor at the Office of Legal Counsel from 1994-2002. You can follow him on Twitter (@marty_lederman).