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Correspondence between Laurel Wagner and Stephen Behnke
October 14, 2007
Stephen Behnke, Ph.D., J.D.
Director, Ethics Office
American Psychological Association
Dear Steve,
As a Division 39 Council Representative and Division 39's liaison to the Divisions of Social Justice I collaborated with others, both before and during the APA convention, to craft an alternative resolution to the Board of Directors' resolution. The Resolution which passed, 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, strengthens APA's position on torture and cruel, inhuman and degrading treatment or punishment, detainee interrogations and the prohibition of psychologists' participation in abusive interrogations. However, for me and many others in Division 39 and the Divisions of Social Justice, the failure of the amendment which would have prohibited psychologists from participating in interrogations was profoundly disappointing. Nonetheless, I was pleased with the advances the Resolution accomplished. Following the Resolution's passage questions arose regarding certain language in the 2007 Resolution, with the concern that the language might provide loopholes for abusive interrogations. As one who worked on the Resolution I believe I understand its intent, but in listening to others I realize the language is problematic in that its intent is unclear and requires clarification.
The questions center on the following portion of the Resolution and I have underlined the most pertinent section:
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 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.
I would like to ask you specific questions regarding how this wording developed and the meaning of this “Be It Resolved.” I am hoping your answers will clarify APA's position so there is no misunderstanding of the Resolution's meaning and intent.
Why are some techniques never permitted (e.g. rape, water-boarding, exploitation of phobias and psychopathology) while others (e.g. hooding, stress positions, forced nakedness) are qualified by the phrase, “used for the purposes of eliciting information in an interrogation process” and still others (e.g. isolation, sensory deprivation and over-stimulation and/or sleep deprivation are further qualified by the phrase “used in a manner that represents significant pain or suffering or in a manner that a reasonable person would judge to cause lasting harm.” What exactly does the qualifier “used for the purposes of eliciting information in an interrogation process” mean? Can these interrogation techniques be used outside of an interrogation to break down a detainee so that he will talk during an interrogation? Qualifying some techniques with “used in a manner that represents significant pain or suffering” could be understood as saying it is permissible to employ these techniques up until the point that they inflict significant pain or suffering. Is that the intention of the Resolution? Similarly, what is the intent of adding the clause “or in a manner that a reasonable person would judge to cause lasting harm?”
In Leave No Marks (http://physiciansforhumanrights.org/library/report-2007-08-02.html) Physicians for Human Rights identifies 10 enhanced interrogation techniques: stress positions, beating, temperature manipulation, waterboarding, threats of harm to a person, family or friends, sleep deprivation, sensory bombardment, violent shaking, sexual humiliation and prolonged isolation and sensory deprivation. Some fall under the 2007 Resolution's “prohibited” list and some under the “qualified” list. Are all these “enhanced” techniques listed in the 2007 Resolution prohibited by anyone anywhere (in an interrogation or outside of an interrogation) if they are used to elicit information from a detainee?
Finally, if these kinds of question have arisen in response to this particular part of the 2007 Resolution what is APA doing to ensure that those working with detainees don't interpret the Resolution as having “loopholes” which allow “torture light” or techniques commonly called “enhanced interrogation techniques”? What is APA doing to further clarify the meaning and intent of the 2007 Resolution not only for the profession of psychology but also for the public, the media and the US Government?
Best Regards,
Laurie
Laurel Bass Wagner, Ph.D.
Council Representative
Division of Psychoanalysis (39)
Chair-Elect, Divisions of Social Justice
American Psychological Association
October 26, 2007
Laurel Bass Wagner, Ph.D.
Council Representative
Division of Psychoanalysis (39)
Chair-Elect, Divisions of Social Justice
American Psychological Association
Dear Laurie,
Thank you for providing me the opportunity to address your questions. I think it is very important to begin a response by making clear APA's objective in setting forth rules regarding psychologists' participation in interrogations: To prohibit torture and abuse. Torture and abuse are immoral, unethical and ineffective. This prohibition includes the “enhanced” interrogation techniques, also known as “torture light” or “no-touch torture.”
APA's position is that the “enhanced” interrogation techniques, including but not limited to the 19 listed in the 2007 Resolution, constitute torture and cruel, inhuman, degrading treatment or punishment, and are unethical and prohibited. Immediately following Council's action in San Francisco, The Washington Post called APA's 2007 resolution "a rebuke of the Bush administration's anti-terrorism policies." In his September 25, 2007, statement to the Senate Select Committee on Intelligence, Dr. Allen Keller, Director of the Bellevue/NYU Program for Survivors of Torture and a member of the Physicians for Human Rights' Advisory Council, wrote, "The American Psychological Association has specifically banned its members from participation in the tactics that allegedly make up the CIA's 'enhanced' interrogation program." The Washington Post and Dr. Keller are exactly correct regarding APA's position.
You ask about the three categories of techniques identified in the 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.” (the “2007 Resolution”) The 2007 Resolution, as you well know, was the product of an intense effort at revising the Board of Directors' substitute motion. Over a period of four days in San Francisco, extensive revising and editing took place with the involvement of a significant number of Council of Representative members; meetings were called to begin at 6:30a.m. and evening meetings lasted late into the night. As the work proceeded, the intent of everyone involved remained absolutely clear: To prohibit psychologist involvement in torture and abusive interrogation techniques, and to bring greater specificity to APA's position.
The first category of techniques identified in the 2007 Resolution is composed of those techniques that APA deems never permissible in any circumstance, such as mock executions, water-boarding, and sexual humiliation. There can never be any association, direct or indirect, in detainee-related operations where such techniques are employed. Such techniques are per se unethical in every instance and psychologists may never be associated with them.
The second category is composed of techniques that cannot be “used in an interrogation process for the purpose of eliciting information.” This phrase means that these techniques may never be used (either during an interrogation session or outside of an interrogation session) if the purpose is to elicit information. There may be times, however, when these techniques are used for administrative or security purposes in a detention facility. As an example, “hooding” has been used to prevent detainees from gathering information regarding a facility's physical layout, which could then be (and has been) conveyed to those on the outside to plan an assault. As another example, there may be times in detention or correctional facilities when inmates are required to remove their clothing.
Two points are important to emphasize about the language of the 2007 Resolution as it applies to this category of techniques. First, these techniques are not available to psychologists as means of eliciting information. While the techniques may have a role in maintaining order and security in a detention or correctional facility, psychologists may neither incorporate these techniques as part of an interrogation nor consult to interrogation teams that use these techniques as means to elicit information, since doing so would constitute, at the very least, indirect participation. Second, the 2007 Resolution is to be interpreted broadly, so that the psychologist may not enlist others to employ these techniques in order to circumvent the prohibition on the psychologist. As an example, a psychologist could not employ a guard to place a hood on a detainee or strip a detainee for the purpose of breaking the detainee down, following which the interrogation would proceed. The second category of techniques in the 2007 Resolution recognizes that interrogations take place in settings where security must be maintained, but does not permit psychologists to incorporate security-related measures into interrogations for the purpose of eluding the Resolution's prohibition.
The third and final category of techniques consists of techniques that may not be “used in a manner that represents significant pain or suffering or in a manner that a reasonable person would judge to cause lasting harm.” In my opinion, the description of these behaviors—isolation, sensory deprivation and over-stimulation, and sleep deprivation—suffered from not having adequate time to find wording that conveyed the authors' intention. As I'm sure you recall, the discussions focused on the definition of these words and precisely what the implications of an absolute prohibition would be. As an example, an individual in detention may be separated and placed in a cell in isolation, in order to prevent that individual from colluding with another detainee in formulating a story that is consistent between them. Likewise, the regimen of a camp may require that detainees begin their daily routines at a very early hour. I believe that everyone will agree neither example would constitute impermissible isolation or sleep deprivation, but it is important to find language that clearly separates what is permissible from what is impermissible.
One possible model for clarifying language comes from Leave No Marks, an August 2007 publication of Physicians for Human Rights and Human Rights First. In Leave No Marks, sleep deprivation, sensory deprivation and over-stimulation, and isolation are described in their application as follows:
- “Sleep Deprivation: The prisoner is deprived of normal sleep for extended periods through the use of stress positions, sensory overload, or other techniques of interrupting normal sleep.” (page 22)
- “Sensory Bombardment: Noise and Light: The prisoner is exposed to bright lights, flashing strobe lights and/or loud music for extended periods of time.” (page 24)
- “Prolonged Isolation: The prisoner is denied contact with other human beings, including through segregation from other prisoners, for prolonged periods of time.” (page 30)
- “Sensory Deprivation: The prisoner is subjected to reduction or removal of stimuli from one or more of the senses for prolonged periods.” (page 30) (emphases added)
Leave No Marks' descriptions of these interrogation techniques, with the adjectives “prolonged” and “extended,” accomplishes what I believe the Resolution was trying to accomplish with the phrase “used in a manner which represents significant pain and suffering.” There was never any intention to allow isolation, sensory deprivation and over-stimulation, and sleep deprivation up until a point of significant pain and suffering is reached (that is, the intent of the Resolution was not to have psychologists “calibrate” the extent of the suffering or pain). Rather, the intent of the Resolution regarding these techniques was to delineate prohibited interrogation techniques, which by their very nature cause significant pain or suffering when used specifically to break a prisoner down as described in Leave No Marks, from permissible security techniques or certain conditions of prison life. As Leave No Marks concludes,
This report demonstrates that “enhanced” techniques of interrogation, whether practiced alone or in combination may cause severe physical and mental pain. In fact, the use of multiple techniques of “enhanced” interrogation virtually assures the infliction of severe physical and mental pain upon detainees. (page 4)
The Ethics Committee may decide to use the above language of Human Rights First and Physicians for Human Rights in commenting on the Resolution, if the Committee finds the descriptions in Leave No Marks helpful in clarifying the 2007 Resolution. There is also extensive discussion in Leave No Marks regarding the harm that “enhanced” interrogation techniques can cause. Leave No Marks thus provides empirical data to support the conclusion that such interrogation techniques are prohibited by the 2007 Resolution.
I want to identify and highlight an issue that I realize is of great concern to many members, that the 2007 Resolution creates a “loophole” that allows psychologists to participate in some “enhanced” interrogation techniques. As I mentioned earlier, I fully recognize that the language of the Resolution regarding these behaviors was not as clear as the authors hoped it would be and as many of our members closely following this issue believe is necessary. I want to say emphatically, however, that the intention of the Resolution is to prohibit participation in interrogations that involve abuse, torture, or cruel, inhuman or degrading treatment or punishment through the use of isolation, sensory deprivation and over-stimulation and sleep deprivation. At no point was there any discussion of, or intention to create, a “loophole” that would allow psychologists to participate in abusive interrogations.
Given the concerns that have been expressed let me state clearly and unequivocally the 2007 Resolution should never be interpreted as allowing isolation, sensory deprivation and over-stimulation, or sleep deprivation either alone or in combination to be used as interrogation techniques to break down a detainee in order to elicit information. My strong sense is that the Ethics Committee, with input from our members, will be able to find language that makes clear the intent of this language in the 2007 Resolution, that these “enhanced” interrogation techniques, all other abusive techniques and techniques of torture and cruel, inhuman and degrading treatment or punishment are prohibited. Again, the Committee may well decide to adopt the language from Leave No Marks in relation to these terms. If members believe this or any other language in the Resolution is unclear or insufficient, I encourage them to communicate their concerns to the Ethics Committee as the Committee works on the casebook and commentary.
In your final paragraph you ask what APA is doing to clarify the meaning of the Resolution. The Ethics Committee is charged by the 2007 Resolution to produce a casebook and commentary that will provide guidelines to psychologists consistent with international human rights laws. The casebook and commentary will address questions raised in response to the Resolution. Currently our public affairs and policy offices are communicating APA's position to members, relevant public officials, the media and others, and will make clear APA's position:
- “Enhanced” interrogation techniques are unethical and prohibited.
- Psychologists may not plan, design, assist, or participate, directly or indirectly, in “enhanced” interrogation techniques, including but not limited to the 19 delineated in the 2007 Resolution and any other techniques that constitute torture and cruel, inhuman or degrading treatment and punishment as defined by the UN Convention Against Torture, the Geneva Convention and APA's 2006 Resolution Against Torture.
- The prohibitions against psychologist participating in interrogation techniques that constitute torture and cruel, inhuman and degrading treatment or punishment are absolute, even in the face of orders, laws and regulations.
- APA calls upon the US government to ban these techniques and upon the legal system to reject testimony that results from torture and cruel, inhuman or degrading treatment or punishment.
- Psychologists must be alert to torture and cruel, inhuman or degrading treatment or punishment and shall inform their superiors, the relevant office of inspector general when appropriate, and cooperate fully with all oversight activities, including hearings by the US Congress and all branches of the US government.
- APA, recognizing that torture and cruel, inhuman or degrading treatment or punishment can result from conditions of confinement, expresses grave concern over settings in which detainees are deprived of adequate protection of their human rights and affirms the prerogative of psychologists to refuse to work in such settings.
I encourage your colleagues and all members to submit their questions and comments about APA's position on interrogations to the Ethics Committee, which is eager to clarify in the casebook and commentary any points of ambiguity. An official call for comments will be issued this fall and comments may be submitted electronically through a link on the ethics portion of the APA website. I will let Division 39 and the Divisions of Social Justice know as soon as this link is active.
Again, thank you for providing me the opportunity to address your questions. As you well know, this issue has challenged our Association and its members on many levels. The enormous effort and respectful attitude you have brought to our discussions have contributed to productive dialogues that I hope will lead to a deeper understanding of APA's position on these critical questions. I look forward to our ongoing collaboration.
Sincerely,
Stephen Behnke
Director, Ethics Office
American Psychological Association
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