The Ethics of Interrogation

Professional Responsibility in an Age of Terror

Paul Lauritzen

• Publisher: Georgetown University Press
• Year: 2013
• Print ISBN: 9781589019720
• eBook ISBN: 9781589019737
• Topic: Law
• Subtopic: Ethics & Professional Responsibility in Law
• Index: Law

Can harsh interrogation techniques and torture ever be morally justified for a nation at war or under the threat of imminent attack? In the aftermath of the September 11, 2001, terrorist strikes, the United States and other liberal democracies were forced to grapple once again with the issue of balancing national security concerns against the protection of individual civil and political rights. This question was particularly poignant when US forces took prisoners in Afghanistan and Iraq who arguably had information about additional attacks. In this volume, ethicist Paul Lauritzen takes on ethical debates about counterterrorism techniques that are increasingly central to US foreign policy and discusses the ramifications for the future of interrogation.

Lauritzen examines how doctors, lawyers, psychologists, military officers, and other professionals addressed the issue of the appropriate limits in interrogating detainees. In the case of each of these professions, a vigorous debate ensued about whether the interrogation policy developed by the Bush administration violated codes of ethics governing professional practice. These codes are critical, according to Lauritzen, because they provide resources for democracies and professionals seeking to balance concerns about safety with civil liberties, while also shaping the character of those within these professional guilds.

This volume argues that some of the techniques used at Guantánamo Bay and elsewhere were morally impermissible; nevertheless, the healthy debates that raged among professionals provide hope that we may safeguard human rights and the rule of law more effectively in the future.

Part I

One
If You Can’t Oppose Torture, What Can You Oppose?

Psychologists Confront Coercive Interrogations

Professional societies may indeed have narrow agendas in publishing their ethics…. Nonetheless, the public statement of a profession’s ethics serves a far wider purpose than mere regulation of its membership. Such public statements establish a voice in the community, provide unification of purpose, recruit community support, and concentrate political power.

—Philip J. Candilis, “Reply to Schafer: Ethics and State Extremism in Defense of Liberty,” 453

If a professional society is unable to take a stand against torture, it is pretty much unable to take a stance against any immoral behavior.

—Robert Jay Lifton, in Peltz, “Learning from History,” 715

If there is an iconic image of the prison abuse scandal at Abu Ghraib, it is that of Satar Jabar standing on a wooden box, his arms extended out to his sides. He is clothed in what appears to be a tattered blanket with a hole cut in the middle so that it can be draped over him like a poncho. Electrodes are attached to fingers on both hands, which are turned outward toward the camera, almost in supplication. An electrode snakes under the blanket, apparently attached to his genitals. He is barefoot and his head is covered with a dark hood.

There are of course other images from Abu Ghraib that are haunting. The pictures of Pfc. Lynndie England dragging an Iraqi man by a leash, of dogs snarling at terrified prisoners, of a perverse pyramid of naked prisoners are chilling. But for a nation that has often identified itself in terms of Christian tradition, it was hard not to see the image of Satar Jabar, the man whose ordeal standing on the box was captured in a photographic still, as a Christ-like figure. It was not a crucifixion, but it resembled one and the searing image could not be ignored.

Indeed, the public revelation of the pictures from Abu Ghraib and the abuses of Iraqi prisoners by American soldiers they depicted were not ignored. The pictures led to investigations of the policies and procedures that facilitated those abuses. From 2004, when the story first broke, through 2012 there have been countless government investigations with reports that run to tens of thousands of pages. Add to this material the reports issued by groups like Human Rights Watch and Physicians for Human Rights, and the government documents that the American Civil Liberties Union obtained through requests filed under the Freedom of Information Act, and there is a small mountain of evidence documenting abuse. One of the common themes in these reports, documents, and investigations concerns the role played by professionals in justifying, participating in, and facilitating the abuse of detainees in the war on terror. Not only did human rights groups raise questions about abuses at Abu Ghraib, they also inquired about alleged abuses at Guantánamo Bay, detention camps in Afghanistan, CIA black sites, and elsewhere.¹ Physicians, psychologists, psychiatrists, nurses, and other health care workers were all implicated in alleged abuses. Lawyers were accused of providing the legal framework that enabled the abuses to occur. Concern about the role of professionals in these abuses in turn led professional associations of physicians, psychiatrists, psychologists, nurses, and others to reflect on the role of their guilds. The American Medical Association, the American Nurses Association, the American Psychiatric Association, and the American Psychological Association (APA) all took stands on whether their members should be involved with coercive interrogations. In addition, some of the most prominent academic lawyers in the country debated the role of attorneys in promoting administration policies that arguably transgressed human rights, and the DOJ launched an inquiry into the role of lawyers within the Office of Legal Counsel in facilitating abusive interrogation.

This chapter and the next focus on the role of the APA and individual psychologists in the war on terror. In examining the role of professionals in the war on terror, it is fitting to begin with psychologists, both because the role of several individual psychologists has been clearly documented and because the APA, one of the largest professional societies in the country, was very active in defending the involvement of psychologists in detention centers. Indeed, the role of the APA has been enormously contentious among psychologists, and looking at the debates about the role of psychologists and the APA in the war on terror is a good place to begin a careful examination of the public responsibilities of professionals in an age of terror.

To get a sense of the sort of activity that divided the profession of psychology, we can look briefly at the controversy surrounding the work of one military psychologist, Col. Larry James, who was the chief psychologist at Guantánamo Bay, Cuba, in 2003. According to a complaint filed against James in 2010 with the Ohio Board of Psychology, he was responsible for formulating policy on interrogation as well as overseeing interrogation strategies for individual detainees.² Although James disputes the claim that he recommended or implemented abusive techniques, the fact that EITs were used is well documented. For example, the report of the Senate Armed Services Committee on the treatment of detainees at Guantánamo Bay quotes from a memo of the commanding officer at Guantánamo, Major General Geoffrey Miller, expressing concern that he was no longer permitted to use EITs that in his view were “essential to mission success.” These included the use of isolation facilities, deprivation of light and auditory stimuli, twenty-hour-long interrogation sessions, and other techniques designed to break down the detainees psychologically.³

It is also clear that the techniques, apparently designed by psychologists to break down detainees, worked. Reports of detainees released from Guantánamo Bay, as well as records from the prison, suggest that detainees were acutely traumatized. For example, the British detainee Shafiq Rasul described being pressed by interrogators to admit that he was pictured in a video he was repeatedly shown:

I said it wasn’t me but she kept pressing that I should admit it. She was very adamant. She said to me “I’ve put detainees here in isolation for 12 months and eventually they’ve broken. You might as well admit it now so that you don’t have to stay in isolation”. Every time I tried to answer a question she insisted I was lying. She kept going on and on at me, pressuring me, telling me that I was lying, telling me that I should admit it. Eventually I just gave in and said “okay, it’s me”. The reason I did this was because of the previous five or six weeks of being held in isolation and being taken to interrogation for hours on end, short shackled and being treated in that way. I was going out of my mind and didn’t know what was going on. I was desperate for it to end and therefore eventually I just gave in and admitted to being in the video.⁴

Should psychologists help efforts to break down detainees? Should they help identify phobias that can be used against detainees? Should they use their knowledge about the effects of sleep deprivation or visual and auditory stimulation to construct interrogation plans? These are some of the questions that the profession of psychology confronted when the techniques used at Guantánamo Bay and elsewhere came to light. And, as the complaint against James indicates, many psychologists argued that participating in abusive interrogation techniques was a violation of the APA code of professional ethics. In the case of James, the complaint alleges violations of at least eighteen sections or subsections of the Ohio Revised Code (ORC), and most of those provisions can be directly mapped to sections of the APA Code of Ethics. And in case there is any doubt that the APA code is relevant, the ORC is clear. Section 4732.17(A)(4) states, “Ethics codes and standards for providers promulgated by the ‘American Psychological Association,’ the ‘Canadian Psychological Association,’ and other relevant professional groups shall be used as aids in resolving ambiguities that may arise in the interpretation of the rules of professional conduct, except that those rules of professional conduct shall prevail whenever any conflict exists between these rules and any professional association standard.”⁵ The APA clearly needed to get involved.

The PENS Report

Although there were rumors of psychologists being involved with abusive interrogation techniques prior to 2004, serious debate among psychologists did not emerge in earnest until 2005, when the president and board of directors of the APA established the Psychological Ethics and National Security (PENS) task force to explore the proper role of psychologists involved with interrogating prisoners at Guantánamo Bay and elsewhere. The charge to the committee was to “examine 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.”⁶

The task force report was issued in June 2005, and a superficial reading of the PENS report would not lead one to expect significant controversy. The task force endorsed both a 1985 joint resolution with the American Psychiatric Association and a 1986 APA resolution against torture. In addition, the report is clear that psychologists are bound by the APA ethics code, even when acting outside traditional health care relationships. Indeed, the first of twelve statements of ethical obligations for psychologists set out in the report is seemingly unequivocal: “Psychologists do not engage in, direct, support, facilitate, or offer training in torture or other cruel, inhuman, or degrading treatment.”⁷ Why, then, was the report so controversial?

To answer that question we must take a closer look at the report and the twelve statements of obligations it sets out. We must also note that the report not only sets out prohibited activities, but also acceptable ones. At several points, we will need to examine the text of the report in some detail, but we can begin with a thumbnail sketch of the twelve statements of obligations. The statements can be divided in a number of ways, but the following schema is, I think, helpful. According to the task force, psychologists working on national security–related matters either must or must not do the following.

Psychologists must

• report acts of torture that they witness

• clarify their professional identity and function where it may be ambiguous

• be mindful of special or unique ethical considerations that may attend their work as consultants to interrogations

• always remember that those being interrogated may not have done anything wrong or may not know the information the interrogator seeks

• make clear the limits of confidentiality

• recognize that they have obligations to those who are not their clients

• consult others when wrestling with ethical questions or dilemmas

Psychologists must not

• engage in torture or support, facilitate, or train those who do

• use health care information from medical records to the detriment of an individual’s safety or well-being

• violate the laws of the United States

• engage in multiple relationships with detainees—for example, as both health care provider and consultant to an interrogation

• act beyond the scope of their competencies

Dividing the statements of ethical obligations in this way begins to give us a sense of why the PENS report was controversial. If we focus on the list of activities that psychologists must not do, we might well draw the conclusion that psychologists will have almost nothing to do with any sort of coercive interrogation. They must not torture or engage in cruel, inhuman, or degrading treatment; they must not act beyond their competencies, which presumably do not include interrogation for most psychologists; and they must not confuse their relationships with detainees. Psychologists cannot be both consultants to interrogators and clinicians concerned about the mental health needs of detainees.

By contrast, when we attend to the list of activities that psychologists must engage in, it is clear that the task force expects and applauds the involvement of psychologists with interrogations. As the overview of the report puts it, the task force believes “that it is consistent with the APA Ethics Code for psychologists to serve in consultative roles to interrogation and information-gathering processes for national security-related purposes.”⁸ In this division between what psychologists must not do, which suggests that involvement in interrogation will be minimal, and what psychologists must do, which presupposes extensive engagement that must be constrained morally, lies the explanation for much of the acrimonious debate that has gripped the profession of psychology in recent years.

Responses to the PENS Report

If language like “acrimony” seems strong, the reality is that it may not be strong enough, for critics of the PENS report have been blistering in their responses. Mary Pipher, a psychologist who received two APA Presidential Citations, condemned APA action as complicity in war crimes based on a “heinous policy”; one task force member called the report “platitudinous” and argued that it is just a form of “damage control”; Stephen Soldz, past president of Psychologists for Social Responsibility, accused the APA leadership of “manipulations, distortions and downright lies” in relation to the report.⁹ The report and the APA leadership’s handling of efforts to strengthen the report’s restrictions led to organized protests against the APA, including a movement for members to withhold dues.¹⁰

What precisely are the objections of critics? One of the best articulations can be found in an essay by Brad Olson, Stephen Soldz, and Martha Davis, published in Philosophy, Ethics, and Humanities in Medicine in 2008.¹¹ On their account, criticisms can be divided roughly into two types: process or policy issues. In terms of process, the main complaint is that the APA leadership filled the committee with psychologists with extensive ties to the Department of Defense, which in turn led to a lack of transparency in task-force deliberations and a failure to address concretely what psychologists should or should not do when involved with detainee interrogations. Indeed, six of the nine voting members of the committee had either been involved with or consulted o...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication
• Contents
• Acknowledgments
• Introduction
• Part I
• Part II
• Bibliography
• Index