DOJ and DOD Heart the APA

by Benjamin T. Greenberg on August 11, 2006

Yesterday, at its annual convention, the American Psychological Association passed a seemingly strong resolution against torture yet left the door to the interrogation room open for its members.

In the APA's executive lexicon, dissent = consent and upholding human rights = aiding torturers.

Leonard Rubenstein, Executive Director, Physicians for Human Rights*:

“The APA’s adoption of the internationally accepted ban on torture and other cruel, inhuman and degrading treatment is only a starting point,” Rubenstein said. But he warned that the APA’s “mere recitation of that principle ignores the Bush Administration’s distortion of the terms, ‘torture’ and ‘cruel, inhuman and degrading treatment.’ Therefore, ethical standards based on those terms alone -- as the APA’s are now -- provide wholly inadequate guidance to psychologists.” He noted, too, that current Pentagon policy also allows behavioral scientists to share medical information about a detainee with interrogators.

The significance of the APA's decision not to decide against psychologists' participation in interrogations of detainees cannot be overstated.

Take a couple of steps back from the APA convention and recall the June announcement of Dr. William Winkenwerder Jr., assistant secretary of defense for health affairs. The NY Times reported:

WASHINGTON, June 6 — Pentagon officials said Tuesday that they would try to use only psychologists, and not psychiatrists, to help interrogators devise strategies to get information from detainees at places like Guantánamo Bay, Cuba. . . .

The new policy follows by little more than two weeks an overwhelming vote by the American Psychiatric Association discouraging its members from participating in those efforts.

Dr. William Winkenwerder Jr., assistant secretary of defense for health affairs, told reporters that the new policy favoring the use of psychologists over psychiatrists was a recognition of differing positions taken by their respective professional groups.

The military had been using psychiatrists and psychologists alike on behavioral science consultation teams, called "biscuit" teams because of the acronym, to advise interrogators on how best to obtain information from prisoners.

But Dr. Steven S. Sharfstein, recent past president of the American Psychiatric Association, noted in an interview that the group adopted a policy in May unequivocally stating that its members should not be part of the teams.

Now look at Marty Lederman's analysis of last week's testimony before the Senate Armed Services Committee of Assistant Attorney General Steven Bradbury. Lederman looks at Bradbury's suggestion that the Bush administration will likely propose replacing the Geneva Convention's limitations on interrogation with the standards of the McCain Amendment.

[T]here is a good chance that the Administration is not construing the McCain Amendment to categorically prohibit certain (reported) "enhanced" techniques used by the CIA, including Cold Cell (hypothermia), Long Time Standing, stress positions, sleep deprivation, and possibly waterboarding. If that is the Administration's understanding, then the McCain standards would not, in fact, satisfy U.S. obligations under Common Article 3 [of the Geneva Convention].

If it's not clear what, exactly, the McCain Amendment prohibits, and not certain that it's coterminous with Common Article 3, why should Congress amend the law to rely exclusively on McCain rather than on Common Article 3 itself?

Bradbury's explanation is that "some of the terms in Common Article 3 are inherently vague." This doesn't seem very plausible -- after all, the military has been taught to apply standards even stricter than Common Article 3 for decades. . . .

And no one has complained about its vagueness for the past nine years, although it has applied as a matter of criminal law during that time (via the War Crimes Act) to interrogators all over the world, including our own in traditional conflicts, such as Iraq. Moreover, some of the "war crimes" that the Administration itself has proposed to be statutorily enacted for purposes of military commissions -- such as conspiracy -- are just as vague and as broad and open-ended, as anything in Common Article 3.

But more importantly, even if some provisions of CA3 were vague, the substantive standard of the McCain Amendment -- the "shocks the conscience" test of the due process clause -- is undeniably vaguer, and more uncertain and case-specific. . . .

Once it's understood that the McCain Amendment is even vaguer and more indeterminate than Common Article 3, it appears that there's really no other reason for the Administration to seek to fall back on McCain other than to circumvent the categorical prohibitions in CA3 section 1(a) on "cruel treatment and torture."

In vying to keep the US legal definition of torture purposefully vague, the DOJ can continue to make false distinctions between physical and psychological torture, as in the August 1, 2002 memo from Assistant Attorney General Jay S. Bybee to then White House Counsel Alberto Gonzales [pdf]—which led to Secretary of Defense Donald Rumsfeld's approval of so-called "Category II" interrogation techniques [pdf] in December, 2002. Category II techinques include:

stress positions (like standing), for a maximum of four hours
falsified documents or reports
solitary confinement for up to thirty days
interrogation in other than the standard interrogation booth
sensory deprivation
hooding with unrestricted breathing
removal of all comfort items (including religious items)
feeding cold Army rations
removal of clothing
forced grooming (shaving of facial hair etc.)
use of detainees individual phobias (such as fear of dogs) to induce stress

A year ago, Jane Mayer interviewed a former Guantanamo interrogator, who explained that psychologists on Behavioral Science Consultation Teams (BSCTs)

were heavily involved in drawing up and monitoring interrogation plans, which were designed individually for each detainee. . . . Sleep deprivation was such a common technique, he said, that the interrogators called the process of moving detainees every hour or two from one cell to another “the frequent-flier program.” He said that interrogators also used pornography to manipulate detainees, giving pictures as a reward to compliant prisoners who were not religious, and forcing “noncompliant” Muslims to look at them. Detainees were routinely shackled in painful “stress positions.”

According to Mayer's source, BSCT psychologists are involved in the selection and deployment of these techniques. Mark Benjamin has more recently documented at least one case in which BSCTs were quite explicitly in charge of an interrogation.

While yesterday's APA statement "condemns any involvement by psychologists in torture or other forms of cruel, inhuman or degrading treatment or punishment," there is no mention of BSCTs. There is no explicit prohibition against psychologists continuing in this "consulting" role.

Let's connect the dots.

The DOJ and the DOD work to maintain intentionally vague definitions of torture that allow for Category II interrogation techniques. The APA resolves to oppose torture but continue allowing psychologists to participate in interrogations. Interrogations revolve around Category II techniques, which are determined and orchestrated by BSCTs. The only Behavioral Scientists allowed on the Consultation Teams are psychologists. Psychologist participation in interrogations is essential to the continuation of current US torture policy.

FURTHER READING