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02Jul15


Independent Review Relating to the American Psychological Association Participation in the CIA Interrogations and Torture Program


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Independent Review Relating to APA Ethics Guidelines, National Security Interrogations, and Torture
Report to the Special Committee of the Board of Directors of the American Psychological Association

SUMMARY TABLE OF CONTENTS

EXECUTIVE SUMMARY

BACKGROUND ON PSYCHOLOGISTS AND NATIONAL SECURITY
THE 2002 ETHICS CODE REVISION
APA INTERACTIONS WITH CIA AND DoD: 2001-2004
THE PRESIDENTIAL TASK FORCE ON ETHICS AND NATIONAL SECURITY ("PENS") AND INITIAL AFTERMATH
THE POST-PENS PERIOD - LATE 2005 TO EARLY 2009
APA'S HANDLING OF DISCIPLINARY CASES AGAINST NATIONAL SECURITY PSYCHOLOGISTS
FINANCIAL REVIEW
GLOSSARY
ATTACHEMENT A (INTERVIEWS CONDUCTED OR ATTEMPTED)


TABLE OF CONTENTS

EXECUTIVE SUMMARY

BACKGROUND ON PSYCHOLOGISTS AND NATIONAL SECURITY

THE 2002 ETHICS CODE REVISION

APA INTERACTIONS WITH CIA AND DoD: 2001–2004

THE PRESIDENTIAL TASK FORCE ON ETHICS AND NATIONAL SECURITY ("PENS") AND INITIAL AFTERMATH

THE POST-PENS PERIOD - LATE 2005 TO EARLY 2009

APA'S HANDLING OF DISCIPLINARY CASES AGAINST NATIONAL SECURITY PSYCHOLOGISTS

FINANCIAL REVIEW

GLOSSARY

ATTACHMENT A (INTERVIEWS CONDUCTED OR ATTEMPTED)


EXECUTIVE SUMMARY

I. INTRODUCTION

In November 2014, the Board of Directors of the American Psychological Association engaged our Firm to conduct an independent review of allegations that had been made regarding APA's issuance of ethical guidelines in 2002 and 2005, and related actions. These ethical guidelines determined whether and under what circumstances psychologists who were APA members could ethically participate in national security interrogations.

The gist of the allegations was that APA made these ethics policy decisions as a substantial result of influence from and close relationships with the U.S. Department of Defense (DoD), the Central Intelligence Agency (CIA), and other government entities, which purportedly wanted permissive ethical guidelines so that their psychologists could continue to participate in harsh and abusive interrogation techniques being used by these agencies after the September 11 attacks on the United States. Critics pointed to alleged procedural irregularities and suspicious outcomes regarding APA's ethics policy decisions and said they resulted from this improper coordination, collaboration, or collusion. Some said APA's decisions were intentionally made to assist the government in engaging in these "enhanced interrogation techniques." Some said they were intentionally made to help the government commit torture.

Allegations along these lines had been most recently and most prominently made in a book by New York Times reporter James Risen, published in October 2014, based in part on new evidence he had obtained. Such allegations had also been made for many years–since APA's issuance of ethical guidelines in 2005–by numerous APA critics both within and without APA.

APA engaged us to look back at these events that occurred years ago, to conduct a "definitive" and "thorough" investigation into the allegations and all relevant evidence, and to report what happened and why. The APA Board instructed us to go "wherever the evidence leads" and to be completely independent, and we have been. A Special Committee of the APA Board of Directors was formed, which stressed to us that our inquiry should be broad, so that the allegations could be addressed in a full and complete manner. We have done our best within the past seven months to fulfill that mandate.

The specific question APA has asked us to consider and answer is whether APA officials colluded with DoD, CIA, or other government officials "to support torture." The allegations we have been asked to address frame the question more broadly at times. As a result of our investigation, we can report what happened and why. And as part of that description, we answer whether there was collusion between APA and government officials, and if so, what its purpose was.

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Fourteen years later, the attacks of 9/11 remain seared in the memories of all Americans old enough to recall them. Beyond the 2,977 killed, many others were personally and permanently affected by the attacks. All of us can remember where we were, and the horrific and shocking images of the attacks' immediate consequences.

The attacks resulted in the nation going to war in Afghanistan and, later, Iraq, and at home created virtually universal feelings of anger, patriotism, and unity of purpose against those who had committed the attacks. There was a common, shared desire to help our national and local governments respond, either specifically with regard to the attacks or generally with regard to the threat of terrorism.

As we engaged in our task of looking back at important events relating to APA that occurred in the years after 9/11, we have kept firmly in mind the strong and widespread feelings and perceptions from that time regarding the attacks themselves and the threat of future harm. Certainly, those feelings and perceptions were different one week, one year, four years, and ten years after 9/11. Being appropriately sensitive to the mindset of the time would therefore require some precision about which time is at issue. But in general, we remain aware that the passage of time may cause one to forget the sharpness of the feelings immediately after 9/11. And as we have engaged in our historical task, we have done our best to remember with clarity the feelings of these times.

One critical part of the national government's response to the attacks was an attempt to obtain information about how the attacks occurred, whether future attacks were being planned, and where future threats might come from. An important part of that attempt was the interrogation of individuals who had been captured in Afghanistan and elsewhere and were in U.S. custody at Guantanamo Bay and other locations, to determine if they had relevant information. The heart of our inquiry relates to APA's issuance of ethical guidelines that determined when psychologists could ethically participate in such interrogations.

In June 2005, APA convened a task force on the topic. The task force issued a report, largely drafted during the three-day meeting by the APA Ethics Director in consultation with the task force. The report concluded that psychologists could ethically play a role in such interrogations and articulated some ethical guidelines regarding their participation. Less than one week later, the APA Board of Directors, in an emergency session, adopted the report as APA policy and publicized it.

Almost immediately, and for the next ten years, the report and APA's actions in convening the task force, selecting its members, conducting the meeting, drafting the report, and reacting to attempts to change the report's policy have created widespread and intense controversy within APA and the broader psychology community. Among other things, the critics have charged that the policy set few meaningful limits on the participation of psychologists in interrogations, despite widespread concerns about abusive conduct in such interrogations, and must therefore have been closely coordinated with the government (perhaps principally the Defense Department and the CIA) and motivated by a desire to curry favor with the government.

The defenders of the task force report and APA's actions, inside and outside APA, say that the criticism is baseless, and denounce the actions of the critics as bullying and their words as false and defamatory. They have accused the critics of recklessly damaging reputations and told us that the critics must be acting out of a political and financial motivation unrelated to the merits of their position. Others have accused the critics of being automatically anti-military, such that any involvement by psychologists in national security endeavors would be considered unethical. To these defenders, the APA staff and members who worked most closely on APA's ethics policies are (as they have told us) American heroes, and the fact that they have been attacked rather than thanked for their service to their profession and the country is a tragedy.

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Within about a year after 9/11, information began to emerge publicly about the manner in which individuals taken into U.S. custody abroad in the war on terror were being treated. Fourteen years later, a great deal of information has become publicly available about this treatment, including from reports by the Senate Select Committee on Intelligence (2014) and the Senate Armed Services Committee (2008), although more information emerges on an ongoing basis.

This information establishes that in the months following 9/11, the President authorized the CIA to engage in "enhanced interrogation techniques." These techniques were not methods of asking questions of a detainee, but were rather ways of attempting to break the will of uncooperative detainees so that they would answer the interrogators' questions and provide intelligence information. These "techniques" included waterboarding, harsh physical actions such as "walling," forced "stress positions," and the intentional deprivation of necessities, such as sleep and a temperature-controlled environment. The Secretary of Defense authorized the Defense Department to engage in a similar set of "enhanced interrogation techniques," although waterboarding was excluded.

The Justice Department office in charge of authoritatively interpreting U.S. law, the Office of Legal Counsel, wrote memos to the CIA in 2002 defining "torture" in a very narrow way. Acts intentionally causing pain to individuals in U.S. custody abroad could only rise to the level of torture, they said, if the effect was equivalent to the pain of a "serious physical injury such as organ failure, impairment of bodily function or even death." Acts intentionally causing psychological harm to such captives would only count as torture if they caused "significant psychological harm" that lasted "for months or even years," such as the development of an actual mental disorder. The memos emphasized that understanding "the context" of the act was important, and that "it is difficult to take a specific act out of context and conclude that the act in isolation would constitute torture." The memos added that, regardless of what actions causing psychological harm were taken by interrogators, the actions could not be considered torture if the interrogator could show that he "did not intend to cause severe mental pain." Interrogators could show that they lacked this intent by "consulting with experts or reviewing evidence gained in past experience."

In 2003, based in part on these Justice Department memos, Defense Department attorneys wrote a report concluding that a U.S. law barring torture by military personnel was inapplicable to interrogations of detainees, and that causing harm to an individual in U.S. custody abroad could be justified "in order to prevent further attacks" on the United States by terrorists. The report, which essentially repeated the conclusions of the DOJ memos regarding the narrow definition of torture, and became the basis for an authorization to the military command at Guantanamo Bay to use certain interrogation techniques not included in the Army Field Manual. The authorization repeated that the Geneva Conventions were not applicable to the detainees held at Guantanamo.

By June 2005, much of this information had been made public, including the analysis of the Justice Department memos and the Defense Department report. In addition, numerous detailed allegations and accounts of abusive interrogation practices had been made public, including from the International Committee for the Red Cross, which monitored activity at Guantanamo Bay, and from media reports, which quoted military interrogation logs and government officials who described abusive interrogation practices at CIA "black sites."

As we write this report, the CIA's use of "enhanced interrogation techniques" is well documented, including in the Senate Intelligence Committee's 2014 report. Among other things, psychologist and CIA contractor Jim Mitchell described in a recent, nationally-broadcast TV interview how he engaged in waterboarding detainees–including how he decided whether to pour water over the strapped-down and blindfolded detainee's face for 10 seconds, 20 seconds, or 40 seconds. The Defense Department's use of enhanced interrogation techniques has also been documented to some degree, including in the Senate Armed Services Committee's 2008 report.

The critics of APA's actions, decisions, and statements relating to this issue, including the 2005 task force report, say that they are horrified by the involvement of psychologists in these types of abusive interrogation methods, and find APA's actions that facilitated or allowed such involvement to be atrocious. They are most critical of the 2005 task force report, but also sharply criticize subsequent APA policy actions on this issue, its handling of related disciplinary complaints against certain members, and some of the key ethics code revisions that APA made in 2002.

Based on the evidence available to them of important interactions between APA and parts of the government, they believe that the only logical explanation for APA's action is collusion or close coordination with the government. They describe APA's apparent motive and intent in different ways, from a desire to curry favor with the government to an intent to help government officials engage in torture. And some are convinced that a comparison of the timing of APA's actions and the timing of the Bush Administration's actions establishes that APA was acting in explicit and close coordination with high-level Administration officials. Some label APA's actions "criminal," and have called out by name the APA officials and employees most involved with this issue, with a request that they be prosecuted. They have said that APA's refusal to strictly limit–if not prohibit–the involvement of psychologists in national security interrogations on ethical grounds created an indelible stain on the entire profession, and a warped and improper definition of what it means to be a psychologist.


II. INVESTIGATION PROCESS AND LIMITATIONS

We recognize the substantial limitations on our ability to definitively inquire into this extraordinarily intense dispute. First, we are not psychologists and, until this matter, were not familiar with the people, processes, organization or history of APA. Gaining this familiarity has not been quick or easy. Psychology is a very large profession of great importance to the well being of our citizens, our nation, and the world. And APA, one of psychology's leading professional organizations, is a 122-year-old body with 54 divisions and over 120,000 members. As attorneys and members of our own professional associations, we of course appreciate the importance of what it means to be a profession, and the importance to psychology of APA as its principal professional organization. But we cannot promise that we have been able to conduct this inquiry with the same insights into human behavior that psychologists may have as a result of their professional training and experience. And it took us some time to learn and appreciate the manner in which APA operates, how it is organized, and who the key people are and were– all essential insights in order to investigate the matter.

Second, we are not government investigators, and do not have the powers (such as subpoena power) or the same access to government information that such investigators typically have. Although most individuals were quite cooperative and willing to meet with us, that sentiment was not universal, and there were several individuals who declined to meet with us or did not respond to our requests. Since this topic relates in part to the activities of the military and the intelligence community, attempts to obtain information about these activities can be complicated by the fact that some information may be classified. And as non-government investigators, we do not have a security clearance. In addition, our ability to assess whether we are receiving accurate information from former government officials trained in intelligence operations may be limited, especially when combined with the limits on our ability to gather government information on this topic. Some of the best investigators in this area, from the government or otherwise, are people who have been doing so for some time and who therefore have developed sources, among other things. We are obviously not in the same position.

This inquiry is made more difficult by the amount of time that has elapsed since the important events occurred. The key events relating to the APA task force report occurred 10 to 11 years ago, and the events relating to the ethics code revision occurred 13 to 19 years ago. Both because memories fade (and change, as psychologists tell us) and because fewer documents remain available as time goes on, any investigation into events this long ago will have inherent limitations.

In addition, this report simply reflects a summary of our knowledge on this topic at a moment in time. Among other things, there is more investigative work that could be done. New information was continuing to come into our investigation up to the time of our drafting of this report, while some attempts to gather information remain pending (for instance, from witnesses who have to date refused to speak with us or have yet to respond to our request, or from government agencies with whom we still have pending document requests). Being able to call an investigation of this magnitude truly "comprehensive" would likely require many additional months. And in light of the inherent limitations described above, attempting to gather definitive information from government resources may be a very time-consuming process. Our descriptions in this report, especially of the actions and potential motives of government actors, must therefore be seen not as necessarily complete, definitive descriptions, but as a summary of our best effort to find facts and draw conclusions based on the time we have been provided and the evidence we have been able to review. |1|

Nevertheless, after actively investigating this matter for nearly eight months with a team of six attorneys and conducting investigative activity that we think is fairly characterized as thorough, we have been able to reach conclusions about most of the key issues under dispute based on the extensive evidence we have reviewed.

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At the outset of our investigation, we established a special email address (apareview@sidley.com) and phone line that anyone could use to share information with Sidley. We received nearly 300 emails to the special email address and more than 30 phone calls to the phone line from individuals who wanted to provide us with information.

We have reviewed over 50,000 documents, the most important of which were a very high volume of emails from APA that remained from many years ago. At the beginning of the investigation, we did not know whether APA's computer systems would contain substantial email or other documentary evidence from 10 to 15 years ago. We were pleasantly surprised to learn that a very large volume of emails and other documents remained based on voluntary decisions to save emails and documents, especially from 2004 forward, although we know that we have a necessarily incomplete set because of deletions over time and the loss of data associated with departed employees.

From APA, we received an immense volume of emails, electronic files, and hard copy documents, including contemporaneous handwritten notes. These documents consisted of files collected from the Executive Management Group, the Ethics Office, the Ethics Committee, the Executive Office, the Science Directorate, the Office of General Counsel, the CFO, the Board of Directors, and the Council of Representatives. The files contained, among other things, Board meeting materials, Council meeting materials, Ethics Code Task Force materials, PENS Task Force materials, APA financial statements, information on APA grants and contracts, APA rules and policies, Ethics Committee Rules and Procedures, and adjudications files. In addition, we reviewed data from seven APA listservs. |2|

We have also received electronic files, hard copy files, and contemporaneous handwritten notes from a wide variety of individuals outside APA, ranging from former APA officials, to former government officials, to important APA critics who have collected a huge volume of information on this topic over the years. We sent document requests to government agencies under FOIA (some of which remain pending at the time of this report), as well as former APA Presidents, Ethics Code Task Force members, PENS Task Force members and observers, former Board members, and former APA employees. Many of these individuals searched their files and sent us relevant documents, which we reviewed. We also met with a former APA President at his home in Ohio and searched his electronic and hard copy files to collect relevant documents.

We received numerous helpful documents from the files of APA critics, including Steven Reisner, Stephen Soldz, and Nathaniel Raymond, including the collection of emails from the late RAND Corporation analyst and CIA contractor, Scott Gerwehr, which formed the basis for some of the analysis in Risen's book, and for a subsequent report issued by these three critics. In addition, we received and reviewed documents from the PENS Archives established by Jean Maria Arrigo at the University of Colorado-Boulder.

We have conducted well over 200 interviews of 148 people. |3| Many of these were in person, and we conducted interviews in 14 different cities and 10 different states, including California, Illinois, Massachusetts, Michigan, Montana, New York, North Carolina, Ohio, Oregon, and Pennsylvania. We interviewed individuals from virtually every perspective on these issues, including all the principal APA critics; many current and former APA employees, officers, Presidents, Board members, committee members, and task force members; numerous former government officials including key individuals from the CIA and Defense Department; and outside experts on ethics.

A small number of important witnesses refused our requests for an interview. One especially important witness with strong links to the CIA, prominent psychologist Mel Gravitz, declined to meet with us. Gravitz, who worked for many years with the CIA as a contractor, is nearing 90 and politely informed us by phone that he did not think he recalled anything from this time. But Gravitz, an expert in memory and hypnosis, also declined to meet with us to see if documents he either wrote or was named on would refresh his recollection. In addition, a former member of the 2002 APA task force on the revision of the ethics code (and former CEO of the APA Insurance Trust), Bruce Bennett, refused to meet with us, although he said he would make himself available for written questions. (After our third request, Bennett said he would not be available for an in-person interview until September, and would not make himself available for a phone or video interview.) As of the date of this report, we have not received Bennett's written answers. Dr. Martin Seligman also insisted on answering only written questions, although he proactively made himself available to us and answered our questions promptly. Virtually all CIA and DoD officials for whom we have evidence of interaction with APA agreed to our requests for an interview, though some of the other CIA and DoD officials we sought to interview declined or did not respond to our interview requests.

Other witnesses significantly delayed meeting with us. Scott Shumate, an important PENS Task Force member and former CIA and DoD official (Director of Behavioral Science at DoD's Counter Intelligence Field Activity agency), refused to speak with us for months. He retained an attorney to negotiate meeting with us, and only made himself available for a grudging interview toward the very end of our investigation after numerous attempts at contacting him. And the chair of the 2002 Ethics Code revision task force, Celia Fisher, the most important witness regarding the ethics code revision, refused to speak with us for several months, slowing down our investigation on this topic substantially. Ultimately, however, she was very cooperative and answered fully and promptly all our inquiries in person and in writing.

We received complete cooperation from APA, which opened up all its electronic and hard-copy files to us, gave direct instructions to all its employees to cooperate fully with regard to interviews and documents, and acted promptly to fulfill our numerous requests. All APA employees made themselves available to us promptly and for extensive periods of time, sometimes at substantial sacrifice to personal commitments, and always acted professionally despite sometimes feeling very challenged in uncomfortable ways by our questions. Many people who formerly served in important APA positions or important government positions generously gave us much of their time, despite having no obligation to do so, including many who welcomed us into their homes to be interviewed.

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We are cognizant that our report and its findings cannot and will not resolve all the intense disputes on this issue; but it is not meant to. We provided conclusions where the evidence allowed us to reach them, but otherwise we described the evidence thoroughly so as to present as many facts as we were able to discover. In this way, we attempted to stay true to our task to go where the evidence would lead us. Sometimes it led us to answers, but sometimes it led us to more questions. As a result, our report and its findings will not be considered satisfying or sufficient to all who read it. But we are also confident that it represents conclusions about what happened, and why, that are based on and squarely supported by the extensive evidence we have reviewed.


III. SUMMARY OF THE INVESTIGATION'S CONCLUSIONS

Our principal findings relate to the 2005 task force, which was formally empanelled by the APA President and was called the Presidential Task Force on Ethics and National Security, or "PENS." The task force finalized a report on June 26, 2005 containing 12 ethical guidelines that were adopted as official APA ethics policy by the APA Board on an emergency basis less than one week later.

Our investigation determined that key APA officials, principally the APA Ethics Director joined and supported at times by other APA officials, colluded with important DoD officials to have APA issue loose, high-level ethical guidelines that did not constrain DoD in any greater fashion than existing DoD interrogation guidelines. We concluded that APA's principal motive in doing so was to align APA and curry favor with DoD. There were two other important motives: to create a good public-relations response, and to keep the growth of psychology unrestrained in this area.

We also found that in the three years following the adoption of the 2005 PENS Task Force report as APA policy, APA officials engaged in a pattern of secret collaboration with DoD officials to defeat efforts by the APA Council of Representatives to introduce and pass resolutions that would have definitively prohibited psychologists from participating in interrogations at Guantanamo Bay and other U.S. detention centers abroad. The principal APA official involved in these efforts was once again the APA Ethics Director, who effectively formed an undisclosed joint venture with a small number of DoD officials to ensure that APA's statements and actions fell squarely in line with DoD's goals and preferences. In numerous confidential email exchanges and conversations, the APA Ethics Director regularly sought and received pre-clearance from an influential, senior psychology leader in the U.S. Army Special Operations Command before determining what APA's position should be, what its public statements should say, and what strategy to pursue on this issue.

We did not find evidence to support the conclusion that APA officials actually knew about the existence of an interrogation program using "enhanced interrogation techniques." But we did find evidence that during the time that APA officials were colluding with DoD officials to create and maintain loose APA ethics policies that did not significantly constrain DoD, APA officials had strong reasons to suspect that abusive interrogations had occurred. In addition, APA officials intentionally and strategically avoided taking steps to learn information to confirm those suspicions. Thus, we conclude that in colluding with DoD officials, APA officials acted (i) to support the implementation by DoD of the interrogation techniques that DoD wanted to implement without substantial constraints from APA; and (ii) with knowledge that there likely had been abusive interrogation techniques used and that there remained a substantial risk, that without strict constraints, such abusive interrogation techniques would continue; and (iii) with substantial indifference to the actual facts regarding the potential for ongoing abusive interrogations techniques.

While we found many emails and discussions regarding how best to position APA to maximize its influence with and build its positive relationship with the Defense Department, and many emails and discussions regarding what APA's messaging should be in a media environment it perceived as hostile, we found little evidence of analyses or discussions about the best or right ethical position to take in light of the nature of the profession and the special skill that psychologists possess regarding how our minds and emotions work–a special skill that presumably allows psychologists to be especially good at both healing and harming.

We found that current and former APA officials had very substantial interactions with the CIA in the 2001 to 2004 time period, including on topics relating to interrogations, and were motivated to curry favor with the CIA in a similar fashion to DoD. But we did not find evidence that the relationship with the CIA contributed to the outcome of the PENS Task Force, apparently because APA's key CIA contact for the APA retired in 2005 before the PENS Task Force met, and perhaps because the CIA's enhanced interrogation technique program was on the wane in 2005, as reported by the Senate Intelligence Committee in its 2014 report.

With regard to the revisions of the Ethics Code in 2002–and most notably a revision to Standard 1.02, providing that psychologists who experienced a conflict between an APA ethical obligation and a law or order from a superior could follow the law or the order without committing an ethical violation, if the conflict could not be resolved (labeled a "Nuremberg defense" by critics)–we found that the meaningful changes occurred prior to 9/11 and were not influenced by an effort to help the government's interrogation efforts. We did find, however, that the "Nuremberg defense" issue was raised to APA officials during the Ethics Code revision process, but that they failed to follow up on it.

Finally, we found that the handling of ethics complaints against prominent national security psychologists was handled in an improper fashion, in an attempt to protect these psychologists from censure.

We set out a summary of the evidence and our findings below. We then turn, in Section IV of this Executive Summary, to answers to the questions presented in the charge, in light of the evidence and our findings. And in Section V of this Executive Summary, we provide some closing comments.

A. Conclusions Regarding PENS Task Force and APA/Defense Department Collusion (2005 - 2008)

The evidence establishes that the composition of the PENS Task Force, the key ethical statements in the task force report, and many related APA public statements and policy positions were the result of close and confidential collaboration with certain Defense Department officials before, during, and after the task force met. The details and level of this coordination varied over time, ranging from some coordination to a very close partnership, in which key APA officials were operating in a virtual joint venture with key Defense Department officials. Their joint objective was to, at a minimum, create APA ethics guidelines that went no farther than–and were in fact virtually identical to–the internal guidelines that were already in place at DoD or that the key DoD officials wanted to put in place. Thus, their joint objective was to create APA ethics guidelines that placed no significant additional constraints on DoD interrogation practices.

For the APA officials who played the lead role in these actions, their principal motive was to curry favor with the Defense Department for two main reasons: because of the very substantial benefits that DoD had conferred and continued to confer on psychology as a profession, and because APA wanted a favorable result from the critical policy DoD was in the midst of developing that would determine whether and how deeply psychologists could remain involved in intelligence activities. APA's motive to curry favor with DoD was enhanced by personal relationships between APA staff and DoD personnel, an important conflict of interest that was intentionally ignored; as a result, –powerful executive leaders–who was married to one of the military's lead psychologists who supported interrogations at Guantanamo Bay– became involved in important ways in the development of both the task force itself and the ethical guidelines it issued.

APA officials had two important secondary motives: First, APA wished to implement a media communications strategy in which APA could portray itself as very engaged in the issue and very concerned about ethical issues, as a reaction to APA's perception that it was receiving and would otherwise continue to receive negative press coverage on this issue. And second, APA wanted to foster the growth of the profession of psychology by supporting military and operational psychologists, rather than restricting their work in any way.

The evidence supports the conclusion that APA officials colluded with DoD officials to, at the least, adopt and maintain APA ethics policies that were not more restrictive than the guidelines that key DoD officials wanted, and that were as closely aligned as possible with DoD policies, guidelines, practices, or preferences, as articulated to APA by these DoD officials. Notably, APA officials made their decisions based on these motives, and in collaboration with DoD officials, without serious regard for the concerns raised that harsh and abusive techniques were occurring, and that they might occur in the future. APA chose its ethics policy based on its goals of helping DoD, managing its PR, and maximizing the growth of the profession. APA simply took the word of DoD officials with whom it was trying to curry favor that no such abuse was occurring, and that future DoD policies and training would ensure that no such abuse would occur. APA officials did so even in the face of clear and strong indications that such abuse had in fact occurred (and APA did not even inquire with CIA officials on the topic, despite public allegations that the CIA had engaged in abusive interrogation techniques). Based on strategic goals, APA intentionally decided not to make inquires into or express concern regarding abuses that were occurring, thus effectively hiding its head in the sand.

APA remained deliberately ignorant even in light of obvious countervailing concerns that counseled in favor of crafting clear policies: Strict ethics rules that clearly and specifically constrain undesirable behavior can be critical in preserving the integrity of a profession, especially in situations when other methods of constraining such behavior (e.g., consultation, adjudication) are less feasible, as here. Being involved in the intentional harming of detainees in a manner that would never be justified in the U.S. criminal justice system could do lasting damage to the integrity and reputation of psychology, a profession that purports to "do no harm." And engaging in harsh interrogation techniques is inconsistent with our fundamental values as a nation and harms our national security and influence in the world. These countervailing concerns were simply not considered or were highly subordinated to APA's strategic goals.

Although APA officials insisted at the time, and for years after, that all their actions were based on independent ethics and policy judgments about how to provide appropriate ethical guidance for psychologists who worked in this area, we found that this was not the case. Instead, key APA officials were operating in close, confidential coordination with key Defense Department officials to set up a task force and produce an outcome that would please DoD, and to produce ethical guidelines that were the same as, or not more restrictive than, the DoD guidelines for interrogation activities.

On the most important issue the PENS Task Force was asked to consider–where to draw the line for psychologists between unethical and ethical interrogation practices–the key APA official who drafted the report (the APA Ethics Director) intentionally crafted ethics guidelines that were high-level and non-specific so as to not restrict the flexibility of DoD in this regard, and proposed key language that was either drafted by DoD officials or was carefully constructed not to conflict with DoD policies or policy goals.

The leading ethical constraint in the report was that psychologists could not be involved in any way in torture or cruel, inhuman or degrading treatment. But it was well known to APA officials at the time of the report that the Bush Administration had defined "torture" in a very narrow fashion, and was using the word "humane" to describe its treatment of detainees despite the clear indications that abusive interrogation techniques had been approved and used. Thus, APA knew that the mere use of words like "torture," "inhuman," or "degrading" was not sufficient to provide guidance or draw any sort of meaningful line under the circumstances.

Although the relatively small number of non-DoD voting members of the task force made some efforts to push for greater specificity and for definitions based on the Geneva Conventions, their efforts were rejected by the DoD members of the task force, the APA Ethics Director, and the other key APA officials who were included in the meeting. And a key passage of an earlier draft that would have created an ethical prohibition on psychologists being involved in interrogation techniques that intentionally caused psychological distress (albeit with a big loophole) was replaced in the final version by language handwritten by the key DoD official on the panel that created no such prohibition whatsoever.

1. Key players

The APA official who led this behind-the-scenes coordination with the DoD officials was the Ethics Director, Stephen Behnke, and the key DoD official he partnered with was Morgan Banks, the chief of psychological operations for the U.S. Army Special Operations Command and the head of the Army SERE Training program at Ft. Bragg. During the task force's pre-meeting communications, during its three-day meetings, and in preparing the task force report, Behnke and Banks closely collaborated to emphasize points that followed then-existing DoD guidance (which used high-level concepts and did not prohibit techniques such as stress positions and sleep deprivation), to suppress contrary points, and to keep the task force's ethical statements at a very general level in order to avoid creating additional constraints on DoD. They were aided in that regard by the other DoD members of the task force (who, for the most part, also did not want ethical guidance that was more restrictive than existing DoD guidance), and by high-level APA officials who participated in the meeting.

Other leading APA officials intimately involved in the coordinated effort to align APA actions with DoD preferences at the time of PENS were then-APA President Ron Levant, then-APA President-Elect Gerald Koocher, and then-APA Practice Directorate chief Russ Newman. Then-APA Board member Barry Anton participated in the selection of the task force members along with Levant, Koocher, and Behnke and in the task force meeting, but was involved substantially less than the others. Other members of the APA executive management group– namely, CEO Norman Anderson, Deputy CEO Michael Honaker, General Counsel Nathalie Gilfoyle, and communications director Rhea Farberman were involved in relevant communications, as described below.

The other DoD official who was significantly involved in the confidential coordination effort was Debra Dunivin, the lead psychologist supporting interrogation operations at Guantanamo Bay at the time who worked closely with Banks on the issue of psychologist involvement in interrogations. At times, they were coordinating their activities with the Army Surgeon General's Office. There is evidence that Banks was consulting with other military leaders, likely in the Army Special Operations Command and the Joint Task Force -Guantanamo, although this was not the focus of our investigation, in part because of our limited ability to access DoD documents and personnel. Another important DoD official involved in some coordination with Behnke was PENS task force member Scott Shumate, a former CIA official who was head of behavioral sciences for a newly-created counter intelligence unit (CIFA) within DoD, which reported to the Under Secretary of Defense for Intelligence.

For Banks, Dunivin, and others at DoD, the attention on the abusive treatment of detainees as a result of the media disclosures of Abu Ghraib, the torture memos, the DoD working group report, and other related events created uncertainty and worry about whether the involvement of psychologists in interrogations would be deemed unethical. Some in DoD, such as civilians Shumate and Kirk Kennedy at CIFA, were pushing APA to move forward with action that would show support for national security psychologists and help end the uncertainty by declaring that psychologists' participation in interrogations (with some then-undefined limits) was ethical. Others, like military officers Banks and Dunivin, reacted to APA's movement toward the creation of the task force with concern that APA could head in a negative direction if the task force was not properly set up and controlled, and with awareness that this was an opportunity for DoD.

2. Conflict of interest

One of the key APA officials who participated in the task force meeting was Russ Newman, the powerful head of the APA Practice Directorate, the most influential unit within APA headquarters. Newman also participated in numerous internal discussions, at the Board and staff levels, involving the creation of the task force, and had apparently consulted with Banks regarding the language of the task force proposal prior to the Board meeting at which the creation of the PENS Task Force was approved.

Newman had an obvious conflict of interest, since his wife, Debra Dunivin, was highly interested in the outcome of this policy decision by APA and was one of the DoD psychologists who would be most affected, positively or negatively, by the ethical position about which APA was supposed to be deliberating. Newman owed a duty of loyalty to APA, which was in the midst of determining its ethical position on this critical issue. In doing so, APA needed to determine how to balance at least two important values: (i) the importance of psychologists assisting the government in getting accurate intelligence information about potential future attacks in order to protect the public; and (ii) the importance of psychologists not intentionally doing physical or psychological harm to individuals, perhaps especially in the situation in which the individual is in custody and is outside the protections of the criminal justice system. In determining its position, APA also needed to balance the views and positions of military and national security psychologists with the views and positions of those outside the military, and national security systems.

Because of Dunivin's obvious and strong interest and bias on these points, Newman had a classic conflict of interest. It was therefore incumbent upon him and APA to keep him out of the discussions and deliberations on this topic, and to disclose the conflict. In fact, the opposite occurred. No disclosure was made. Newman and Dunivin were included at many of the key points of the process, including the task force selection process and the task force deliberations; and both Newman and Dunivin inserted themselves and influenced the process and outcome in important ways. The various APA officials who were aware of the conflict and of all or some of Newman's and Dunivin's involvement–including principally Ethics Director Behnke, Deputy CEO Michael Honaker, APA President Ron Levant, and APA President-Elect Gerald Koocher, and also including to a lesser extent CEO Norman Anderson and General Counsel Nathalie Gilfoyle–took no steps to disclose or resolve the conflict.

3. APA's motive to please DoD

The very substantial benefits APA obtained from DoD help explain APA's motive to please DoD, and show that APA likely had an organizational conflict of interest, which it needed to take steps to guard against. DoD is one of the largest employers of psychologists and provides many millions of dollars in grants or contracts for psychologists around the country. The history of DoD providing critical assistance to the advancement and growth of psychology as a profession is well documented, and includes DoD's creation of a prescription-privileges "demonstration project" in which psychologists were certified to prescribe psychiatric drugs within DoD after going through a two-year training course. While APA took one significant step in 1991 that disappointed many military psychologists–refusing to allow DoD ads in APA's publications because of DoD's discriminatory position regarding gays and lesbians in the military–APA had lifted its advertising ban in 2004. And by the time of the PENS Task Force, contemporaneous internal discussions show that improving APA's already strong relationship with DoD was a clear priority for those APA officials working on the PENS Task Force.

In addition, at the time of the task force's creation, DoD was in the midst of developing policy about how psychologists and psychiatrists could participate in interrogations and other intelligence-collection activities. APA wanted to positively influence DoD regarding this policy so that psychologists would be included to the maximum degree possible, and psychologists would not lose the lead role to psychiatrists. APA used the pro-DoD task force composition and report to show its strong support to DoD, with the hope or expectation that APA would be rewarded with a very prominent role for psychologists in this new policy. And in fact, the policy did provide a very prominent role for psychologists, a fact celebrated by the APA officials who had worked most closely on the task force.

4. Other motivations

The other two principal motivations of the lead APA officials–PR strategy and growing the profession of psychology–also played an important role in the way APA handled the PENS Task Force process and outcome. As some in the APA leadership group discussed candidly, well in advance of the PENS process, advancing these goals created a dilemma: on the one hand, they wanted to take a position that allowed psychologists to be as involved as possible in interrogations, including in some of the less extreme efforts to "break down" uncooperative detainees; but on the other hand, they knew that to articulate this publicly in any sort of detail would look horrible. They also worried about what they saw as negative press reports that made APA appear to be stumbling and unsure about this issue. The only solution that met all these goals was an outcome that allowed them to take a public position that pleased DoD, that did not significantly restrict an important group of psychologists, and that avoided the difficult issue by keeping ethical guidelines at a high level.

5. Subordination of ethics analysis

What is also clear from the evidence is that the decisions from the key APA officials about how to proceed regarding the PENS Task Force–its composition, the substance of the report, how to adopt it as policy, what public explanations to make, and whether and how to change the policy once there was pressure to do so–were not based in any meaningful way on ethics analysis.

To advance its PR strategy, APA issued numerous misleading statements that hid its true motives, in an attempt to explain and justify its ethics policy and the PENS Task Force report in positive terms. At times, APA's statements stressed a pro-human-rights message: the task force report and APA policy were issued to provide "strict ethical boundaries" that carefully protected human rights and ensured that psychologists were not involved in harsh and abusive techniques. At the same time, the misleading public statements stressed that APA could not be expected to be more detailed than it had been: they said APA needed to respect that the issue was complicated, that they did not have all the facts or context necessary to make ethical judgments, that the issue needed more time to develop, and that the task force report was just an initial step. At other times, APA said that they were just following the will of a diverse group of task force members who had adopted the report in either a unanimous or consensus fashion.

We found that none of these explanations accurately reflected APA's true reasons for proceeding as it did. The fact that a robust ethics analysis was not part of this ethics process led by the Ethics Director was surprising to us, but is consistent with two additional observations revealed by our investigation.

First, Ethics Director Behnke often acted as APA's chief of staff on this issue, taking the lead in recommending and drafting virtually all APA decisions and statements on this issue, whether relating to Board strategy, PR, Capitol Hill lobbying, or APA Council of Representatives management and strategy, among others. As we have learned in this investigation, Behnke is a brilliant and highly educated psychologist and lawyer, a nice and charming person, a highly gifted and fast writer, and a very sophisticated and nuanced strategist and communicator. Whatever organizational or personality dynamic led to APA allowing him to play this remarkably expansive role, well beyond the expected duties of APA Ethics Director, the result was a highly permissive APA ethics policy based on strategy and PR, not ethics analysis.

Second, APA leaders had decided in the 1990s (before Behnke's arrival at APA in 2000) that APA's ethics policies and practices had been too aggressive against psychologists, and that a more protective and less antagonistic ethics program was appropriate. They wanted a greater focus on ethics education and consultation, and much less emphasis on strict rules and robust enforcement of disciplinary complaints. Revisions to the Ethics Code focused in part on making the rules more precise to ensure that psychologists had proper notice about what behavior was considered unethical, and to minimize APA's litigation risk from lawsuits by sanctioned psychologists. A provision about how to handle conflicts between legal and ethical obligations (Ethics Code Standard 1.02) was expanded so that psychologists could follow court orders or military orders requiring them to engage in conduct otherwise prohibited by the Ethics Code, as long as they attempted to resolve the conflict first. Behnke was hired specifically to pursue an ethics program that was more "educative," and he fulfilled these goals. During his tenure, APA disciplinary adjudications plummeted, and the focus shifted to "supporting" psychologists, not getting them in trouble–a strategy consistent with the ultimate mission of growing psychology.

Thus, when the time became ripe to consider what ethical constraints to put on an important group of psychologists, two factors that could conceivably have created internal pressure in APA for those ethical constraints to be strong–an Ethics Director focused principally on an analysis of ethics, torture, and psychological distress by those in captivity, and an ethics approach that had a robust focus on the integrity of the profession and the protection of the public - were not present.

6. The creation of the Task Force and selection of its members

The idea of the PENS Task Force arose from the intersection of two forces: First, one of the CIA's lead psychologists (Kirk Hubbard), who had been working closely with the APA Science Directorate (as summarized in section III.C below), emailed APA in March 2004 to say that he and CIA contractor psychiatrist Andy Morgan had concerns that psychologists were assisting interrogations in ways that contradicted the APA Ethics Code. (There is reason to doubt whether Hubbard actually shared this concern; the more likely explanation appears to be that Hubbard was passing on a concern shared by Morgan and one of Hubbard's colleagues, Kirk Kennedy, who was undercover at the time and is now at the FBI.) This email prompted internal discussions that led to a July 2004 confidential meeting at APA for CIA, DoD, FBI, and academic psychologists and psychiatrists to discuss the issue. Second, the April 2004 media disclosure of the Abu Ghraib abuses led to intense media coverage on this issue, which led to requests from APA members to APA leadership that it address the issue. Behnke took the lead on the issue and, in internal emails and meetings in May 2004, suggested that APA take a "cautious" approach (perhaps by studying the issue through a task force), and that the approach be "forward looking, positive, [and] supportive" to national security psychologists and not "cast a shadow" on such psychologists or suggest that they were under suspicion.

Little happened after this July 2004 confidential meeting, despite some attempts by two DoD (and former CIA) psychologists, Kirk Kennedy and Scott Shumate, to push APA to take some concrete steps on the issue. Then, on November 30, 2004, the New York Times published an article revealing allegations from a leaked report by the International Committee of the Red Cross that psychologists at Guantanamo had been involved in psychological and physical coercion that was "tantamount to torture."

The article prompted an immediate and sustained effort by APA executives, including Behnke, to figure out how to address the issue from a messaging perspective. Within days, the idea of a task force–suggested at that time by President-Elect Koocher, clearly in part as a reaction to the threat that a pro-human-rights division in APA would push for an aggressive resolution in the Council of Representatives that would likely be very negative for DoD and intelligence psychologists–was discussed, and internal steps were taken to implement it. The Board tentatively approved the idea at its December 2004 meeting, and work on selecting potential task force members began in early January (accelerated by another concerning article on the topic by Gregg Bloche and Jonathan Marks in the New England Journal of Medicine).

Although the ultimate PENS Task Force was intentionally weighted in favor of the DoD (a critical factor in its outcome), the initial staff-recommended task force members were more equally divided. By mid-January, Behnke and staffers in the APA Science Directorate had chosen ten recommended task force members and about ten to fifteen back up candidates. The ten recommended names included five non-military/government psychologists (including three who wound up on the task force–Jean Maria Arrigo, Olivia Moorehead-Slaughter, and Michael Wessells), one non-military/government psychologist who had conducted trainings for the military and FBI, and four military/DoD psychologists (including Debra Dunivin, and one who wound up on the task force–Michael Gelles).

However, things had changed by the February 2005 Board meeting. Prior to the Board meeting and vote, APA (apparently through Russ Newman) confidentially consulted with Morgan Banks about the language of the actual Board agenda item defining the fask force proposal before the APA Board voted on it, and Banks provided written comments. At the Board meeting, with Levant, Koocher, and Newman participating in the discussion on this item, the Board authorized the creation of the task force but decided not to accept the staff recommendations and decided instead to solicit task force nominations from APA divisions and members.

Almost immediately, Dunivin intervened in the process, insisting to Levant and Behnke that Banks must be included in the task force, and that the composition of the task force was "critical to accomplishing its mission." Dunivin then delivered a strongly-worded letter to Behnke the day before the March 2005 meeting of the task force selection committee (Levant, Koocher, APA Board member Barry Anton, and Behnke), in which she identified all but one of the six DoD members initially chosen for the task force. This letter was the sole outside document present before the selection committee during its deliberations. The other document was a thick binder of the 111 prominent psychologists who had been nominated for the task force, about 70% of whom were non-military/government psychologists.

Nevertheless, the selection committee chose six (out of the 10) military/DoD psychologists. They were Banks, Shumate, Larry James (an Army Colonel who was deployed to Guantanamo as the lead BSCT psychologist prior to Dunivin, and was also deployed to Iraq after the Abu Ghraib controversy to help address the problem), Michael Gelles (a Navy Criminal Investigative Services psychologist), Bryce Lefever (a Navy psychologist who previously had been a SERE instructor), and Robert Fein (a DoD contractor who worked in CIFA with Shumate, and also had been appointed by the Director of Intelligence to the Intelligenc Science Board). Of the other four, one (Moorehead-Slaughter, the Vice-Chair of the APA Ethics Committee) was made the non-voting chair of the task force by the selection committee, and she later went along with the direction that the military/DoD psychologists and Behnke pursued at the meeting. The others were Jean Maria Arrigo, Nina Thomas, and Michael Wessells. The result was a task force tilted 6 - 3 in favor of DoD officials. In addition, Koocher and Anton were named Board liaisons to the task force, and Koocher, in particular, took aggressive and vocal positions against the three non-DoD members: thus, the split was effectively 7 - 3 while Koocher was at the meeting.

These importantly-timed and confidential consultations with Banks and Dunivin appear to have been unique–we did not find evidence of APA having similar consultations with other individuals or constituencies. And they were highly influential.

7. Discussions before the meeting

A task force listserv for TF members and key APA officials (Behnke, Koocher, and Anton) was established in April 2005. At least four important things occurred during the discussions on the listserv between April and June, leading up to the task force meeting. First, the behind-the-scenes communications show that Behnke was actively managing the direction of the discussions on the listserv, in part by drafting emails in which decisions were made or topics suggested for the task force chair (Moorehead-Slaughter), who would then send them to the listserv verbatim. An analysis of her emails on the listserv shows that virtually all of Moorehead-Slaughter's postings were written by Behnke, which Moorehead-Slaughter and Behnke conceded to us.

Second, Banks and Behnke collaborated behind the scenes about the eventual content of the task force's report, with the result that the key high-level framework set out in the then-draft DoD policy regarding the participation of psychologists in interrogations was (i) proposed by Banks on the listserv as a good framework for the task force, and then (ii) recommended by Behnke (through Moorehead-Slaughter) as a good framework for the task force. (This draft DoD policy was written by Banks and Dunivin and later converted almost verbatim to official DoD policy.) The framework–interrogation practices must be "safe, legal, ethical and effective" ("SLEE") –was touted by Banks as a safeguard that would somehow ensure the humane treatment of detainees. In reality, however, it was a malleable, high-level formula that easily allowed for subjective judgments to be made, including by people such as Banks who interpreted the formula to permit stress positions and sleep deprivation in some circumstances. The evidence shows that minutes before Behnke sent Moorehead-Slaughter a draft email from his computer laying out the argument for the SLEE framework (which she posted verbatim minutes later), Banks had made the final edits on a document on his computer highlighting some of the same arguments for the SLEE framework (a document that was then likely shared with Behnke). And the SLEE framework became one key portion of the task force's report.

Third, the meeting group was expanded in a careful way by adding two "observers" who were affiliated with the military and intelligence community. After several days of internal staff consultation and planning about how to add observers to the task force meeting, Behnke (through Moorehead-Slaughter) posted an email on the listserv inviting observer recommendations. In a coordinated fashion, twenty minutes after Moorehead-Slaughter's post, Barry Anton recommended APA Practice Directorate chief Russ Newman as an observer (despite Newman's conflict arising from his marriage to Dunivin, the Army's lead interrogation-support psychologist at Guantanamo, described above). Ten minutes later, Banks posted that he agreed. And a short time later, Moorehead-Slaughter declared that Newman would be included. Michael Gelles subsequently recommended long-time CIA contractor/psychologist Mel Gravitz (sometimes called the "father of operational psychology"), and he was quickly "confirmed" by Moorehead-Slaughter. Our investigation uncovered that Gravitz had played an important role inside the CIA in clearing the way for CIA contract psychologist Jim Mitchell to continue participating in CIA interrogations in 2003 after some within the CIA protested that his work was unethical, and had also attempted to influence an APA 2002 disciplinary proceeding against Michael Gelles. |4|

In contrast to the quick approval of Newman and Gravitz as observers, suggestions by others (such as the suggestion from non-DoD task force member Jean Maria Arrigo that the medical ethicist for the American Medical Association be invited) were ignored. |5| Both Gravitz (who was there for the second and third days of the meeting) and Newman spoke during the meeting in ways that supported the military/DoD psychologists. And Newman spoke forcefully about the importance of achieving APA's PR goals in a manner that was inconsistent with the efforts by some of the non-DoD psychologists to push for stricter, more specific ethical guidelines.

Fourth, efforts by Jean Maria Arrigo to set a broad agenda for the discussion and to ask whether certain assumptions behind the task force were correct (for instance, whether it was realistic to create a system of enforceable ethical guidelines for psychologists operating in a classified environment, since enforcement by a professional association would likely be impossible), were quickly rebuffed by Koocher in aggressive listserv posts. This was an intentional effort to curb dissent to the frame of reference APA had already decided upon–that the task force would issue a report at the end of three-day meeting that would conclude that psychologists could ethically support interrogations, thus pleasing DoD, and that would be written in a manner that would provide APA with a good media statement to respond to the perceived negative press.

8. Task Force meeting and report

Our understanding of what occurred at the task force meeting and the behind-the-scenes drafting of the report was aided by interviews with every task force member and all but one observer, and the review of many documents and previously-undisclosed contemporaneous handwritten notes.

The 2 V2 day meeting on June 24-26 in the APA board room resulted in a report drafted by Steve Behnke over those three days that, with two minor changes by the APA Ethics Committee a few days later, became the PENS Task Force Report. The report said that psychologists could serve as consultants to national security interrogations consistently with the Ethics Code, and articulated two high-level limitations on that activity, without further significant definition: psychologists could not be involved in torture or cruel, inhuman or degrading treatment, and psychologists should attempt to ensure that interrogation methods were safe, legal, ethical and effective.

As one of the DoD task force members who thought the report should have gone farther told us, this language was "loose" and "not defined"As he noted, key issues - whether a psychologist could cause psychological distress or physical pain to a detainee; if so, whether it was important to differentiate between "harm" and distress / pain; and if so, how one drew the line–were not addressed in the report despite the fact that an early draft of the report did attempt to cover those issues. (At Banks's request, and to a lesser extent James's, the report did not restrict psychologists from continuing to access detainee medical records, and instead prohibited psychologists from using them to the detriment of the detainee's safety and well-being.) As this DoD task force member said and a wide variety of evidence confirms, these "loose" limitations were intentionally chosen by Behnke because they reflected what Morgan Banks and key parts of DoD wanted.

a) Key DoD Task Force members

Of the six DoD task force members, Banks and Scott Shumate appeared to have the most prominent positions within DoD, and Banks worked integrally on interrogation support issues. (Shumate, apparently, did not, although he apparently had done so while at the CIA.) As Command Psychologist for the Army Special Operations Command and the senior Army SERE psychologist, Banks worked closely with and was involved with the Army psychologists at Guantanamo Bay and elsewhere who supported interrogations, including Dunivin. Banks came into the task force with a concrete idea of what the task force report should say, and should not say, as he and Dunivin had already drafted what would become Army (and therefore DoD) policy regarding the details and limitations on using psychologists in interrogations (a confidential internal Army document that he distributed at the meeting).

The evidence shows that at the meeting, Banks was "persistent" about his agenda, in the words of a DoD task force member. His agenda was to get the APA's "good housekeeping" seal of approval for the involvement of psychologists in interrogations, and to otherwise keep the status quo and avoid limits or constraints beyond the ones the Army or DoD had in place (or would decide to put in place in the future).

Banks told task force members that he had consulted with his generals within his U.S. Army Special Operations Command and had already come to an agreement with his leaders that the "safe, legal, ethical, and effective" framework was the appropriate way forward. He also made a reference to "his generals" during the meeting, presumably a reference to the commanding generals of Army Special Operations Command and the Army Medical Command (the Army Surgeon General), and perhaps of the U.S. Special Operations Command, the Joint Task Force - Guantanamo, and the U.S. Southern Command. And the evidence shows that the Army Surgeon General's Office was in fact in the midst of developing DoD policy on this issue.

Banks said and gave the impression that he did not want other DoD members to deviate from the direction he was pursuing. For most of the DoD members, this was either unobjectionable or in line with what they wanted to achieve. Gelles and James both believed psychologists should continue to be involved as consultants in interrogations, and at the time this remained a significant part of Gelles's job as a criminal investigator with NCIS. And both Gelles and James indicated in the meeting, in different ways, that a high-level report would probably be preferable to a more specifically-defined one. Shumate made it clear that he was uncomfortable with public disclosure of specific examples that might provide further guidance; that he thought "coercive" was too broad a word to be used in this context; and that he wanted to manage the task force's public message by using words that softened the reality of the pressure DoD psychologists faced to help produce actionable intelligence. Fein, a DoD contractor within Shumate's unit, did not say as much but was not going to object to the positions of actual DoD officials.

Lefever, different than the other DoD members, believed the task force would accomplish little if it did not provide specific, defined guidance about when a psychologist could intentionally inflict physical pain or psychological distress, and how to determine an approximate line between pain and harm. In his desire for greater specificity, Lefever was actually in agreement with the task force's two substantial dissenters–Wessells and Arrigo– although he was in sharp disagreement with them about where to draw specific lines. Lefever said that once it became clear to him that the task force's APA leadership (Behnke, Koocher, Anton and Newman) and chair (Moorehead-Slaughter) were not going to insist that the report go beyond a high-level, loose set of guidelines, he stopped trying to push for greater specificity and accepted the result, which he saw as unobjectionable but a clear failure of leadership.

b) Efforts by non-DoD Task Force members

There were two very strong pushes by Wessells during the meeting that–if accepted– would have created a report with tighter, more specific ethical constraints on national security psychologists involved in interrogations, in ways that would have been inconsistent with the strong preferences of Banks and DoD. The first, an attempt to use the provisions of the Geneva Conventions or other common international law sources to define the high-level terms being discussed at the meeting, was joined strongly by Arrigo and Nina Thomas. This attempt was rejected by the other members of the task force, and was therefore rejected in the Behnke-drafted task force report. The second, a subsequent attempt to create specificity within the document in other ways, by discussing where to draw the line between permissible and impermissible interrogation techniques was primarily pushed by Wessells, and was also rejected.

First, Wessells argued strenuously during the meeting's first day that the government's explicit departure from the applicability of Common Article 3 of the Geneva Conventions was wrong, and that regardless of the government's position, psychologists should declare that they would be bound by its terms and common understandings. Wessells, a Columbia University public health and psychology professor who is an expert in the protection of children during international conflicts and who spent the vast majority of his time and work abroad in war zones, wanted to tap into established language in some of the most basic and longstanding international human-rights documents. |6| At the meeting, he argued that it was important for APA to go beyond the narrow U.S. government definitions in setting ethical guidelines for psychologists:

    What kind of damage [will be done] to APA if we say we do not support human rights as defined in the Geneva Conventions and other conventions? What about [the] damage to our national security? If we engage in human rights violations, the message that sends to other countries [is damaging to our national security]. They therefore become our enemies and attack. . . . The standards [on international human rights] are not an issue for debate at this point. . . [The] APA Code commits us to human rights. Does American law trump international law? As a professional society, do we have commitments in [the] human rights direction? If we aspire to these things, can we throw international human rights away? APA is diverse but the diversity is not represented here. . . . We would damage ourselves as an association if we support American law when it contradicts international law. DoD has defined a set of standards not congruent with international law. If we endorse that, we damage our credibility. . . . As a professional association, at a moment of national panic, [we must] take a high standard.

Thomas and Arrigo spoke up in favor of this position.

The DoD members suggested that they agreed in principle with the Geneva Convention provisions but said they could not accept a position that varied from the requirements of U.S. law. ("[I] cannot take a public stand opposed to the U.S. government," said one.) In other words, as DoD officials they could not agree to be bound by constraints on their behavior that went beyond the constraints set by U.S. law.

While this position may have been understandable as a statement of U.S. governmental policy (as opposed to APA policy), APA President-Elect Koocher also attacked the idea of the APA tapping into international law definitions in crafting ethical guidance, calling it a "distraction" to draw international law into APA's ethics guidance. As a result of this opposition the report rejected the use of or reference to international law, except to the extent it was incorporated into and consistent with U.S. law (as then defined, including through the DOJ memos).

Some say that this conclusion shows the automatic impact that selecting a majority of DoD officials had on the task force's conclusion. But we think that it actually shows an even more intentional decision by the APA task force leaders and the DoD psychologists not to voluntarily commit psychology as a profession to a more robust set of ethical limitations. To do so would have shown leadership on the issue in a way that likely would have put APA at odds with DoD and the Administration. This may have caused a conflict that would have caused DoD to employ fewer psychologists or to write policy that subordinated the role of psychologists in interrogation and detention matters; and it may have prompted some DoD psychologists to leave APA membership (although Banks was already outside the APA).

But sometimes, leadership in this manner causes external change rather than just conflict. Thus, taking this direction (especially if the other leading health-care professional associations also took ethical positions that were less accepting of the Administration's position, as they ultimately did) may have caused, or placed pressure on, DoD or the Administration to change its position regarding the use of international-law definitions in these circumstances. By going along with the "simply follow U.S. law" position of the DoD task force members, the APA task force leadership was making an explicit choice to follow what DoD wanted rather than making an independent decision about what were the appropriate ethical rules for psychologists in these situations (other than the decision that what was best for DoD was best for APA).

Second, Wessells argued during the meeting's second day that the report should contain sufficient specificity regarding what interrogation techniques psychologists could be involved or consult on. |7| The context for this discussion was Behnke's draft report, circulated at the beginning of the day, that included a paragraph prohibiting psychologists from "consulting] on techniques that would cause psychological distress," with a very large loophole– "except for a clear, legitimate purpose, such as to prevent future acts of violence." The loophole was limited by the next sentence which provided, "Punishment and obtaining a confession do not constitute legitimate purposes." This language incorporated a portion of the United Nations Convention Against Torture's definition of torture, which provided that for an act to be considered torture of an individual, it must be done for one of several purposes, including obtaining "information or a confession" from a detainee, "punishing him," or "intimidating or coercing him or a third person." Behnke used the "confession" and "punishment" limitations, but left out the "obtaining information," "intimidating," and "coercing" limitations. |8| Thus, Behnke's draft allowed psychologists to recommend an interrogation technique that would cause psychological distress as long as their purpose was to get information in order to prevent future acts of violence, and was not to "punish" or obtain a "confession."

Even this fairly minimal restriction on causing psychological distress provoked opposition from several of the DoD task force members, especially Banks. And Banks ended up writing out by hand completely different language (based on an additional side concern raised by Arrigo) that created no restrictions whatsoever and became the new version of this paragraph. The language provided that psychologists who consult on interrogation techniques "are mindful that the individual being interrogated may not have engaged in untoward behavior and may not have information of interest to the interrogator." |9|

Wessells clearly recalls speaking up forcefully about the need for specific prohibitions regarding either (i) certain interrogation techniques, such as stress positions and sleep deprivation, or (ii) how to describe whether pain or distress can be intentionally inflicted. The contemporaneous notes (albeit sketchier from the second day because a note-taking blackout was imposed toward the end of the first day) corroborate him. The notes show sleep deprivation and "the disorientation techniques" being discussed, as well as concerns that "the gray areas" were not being addressed by the document and that it needed to address what "point on the dial" (regarding interrogation techniques) was too far. Wessells argued that the discrepancies between the U.S. government's position and the U.N. Convention Against Torture, arguing that the report allowed psychologists to engage in "unethical procedures," and saying, "our reputation in this profession depends on this document."

Behnke, however, said that the task force needed to "attend to [the] level of specificity in [the] document so as not to cause difficulties." And some of the DoD members made it clear that they agreed. Thus, what was then discussed - and promised to Wessells and the other non-DoD task force members - was that the more specific prohibitions and guidance desired by Wessells would occur in a follow up "casebook"-like document that would contain examples to guide psychologists about where the ethical line was. Shumate was mostly against the idea: he said the examples "would be awful" and "would alarm people," and pointed out that APA could generate a casebook independent of the government's position, but "DoD psychologists can't" (since they inherently could not be independent of DoD). Neverthless, Behnke promised Wessells, Arrigo, and Thomas (as they clearly recall) that the task force report was just "an initial step," and that the casebook would be issued by APA after some sort of consultation with the task force members. Wessells clearly recalls pressing Behnke to commit to a time frame for the casebook, and Behnke promising it would be completed in four to six months.

Thus, two pushes for ethics positions that would have made the task force report a very different document were explicitly made but rejected by the DoD task force members and the APA task force leadership. The three non-DoD members acknowledge that if they had firmly and officially dissented and refused to accept the task force report, this might have made a difference. And in fact, Behnke and other APA leaders have consistently cited the final sign-off on the report by the three non-DoD members as proof that the document does not merely reflect a pro-DoD position.

c) Ultimate "approval" by non-DoD Task Force members

The three non-DoD task force members clearly came to regret going along with the report at the end of the meeting. They insist that their failure to issue a final and overall dissent should not be taken as approval of APA's claim (made one day after the task force report was made public) that the report set out "strict ethical boundaries," since they had been told that APA only considered the report a first step and that the actual "boundaries" would be set out in a follow-up casebook. For Wessells in particular, and for Arrigo as well, the explicit promise that the report was simply an interim step to be quickly followed by a more thorough set of specific guidelines was crucial to their agreeing to sign off on the report. Wessells clearly felt duped when he was told six months later that nothing had been done on the casebook. He resigned from the task force six months later.

Arrigo and Thomas also cited a feeling of intense group pressure from the much larger group of DoD task force members and APA leaders (all men, they point out) to go along at the end, in order to enable APA to make a clear and positive public statement that APA was "against torture." Arrigo, Thomas, and Wessels all cited to us the "groupthink" psychological phenomenon as something that may have been a factor in their going along at the end, in addition to their belief that this was not–and would not be portrayed by APA–as a final, strong set of "strict ethical guidelines." In addition, many of the task force members and observers (both DoD and non-DoD) told us that there was a real "us vs. them" split in the room between DoD and non-DoD task force members, and that all the DoD members except for Banks sat on one side of the table, across from the non-DoD members.

Adding to this dynamic was the participation of Koocher (on the first day) and Newman (throughout the meeting) who both spoke up forcefully in opposition to some of the key points of the non-DoD task force members. |10| Banks and the DoD task force members had allies in Koocher, Newman, and Behnke. These APA officials agreed with the strategy of deferring to DoD's preferences and shared the goal of ensuring that the result of the meeting was a document that APA could use for positive PR purposes, which "calm[ed] the issues," avoided "rekindling the fires," and "clarified" and "simplified" the message that press accounts had "messed up." In their view, APA needed a clear, straightforward, public statement–without delay–that would solve the PR problem by portraying APA as a professional association that was taking action to set ethical guidelines rather than sitting on the sidelines, while keeping DoD psychologists as involved and unconstrained as possible.

Based on what we have seen in our investigation, we agree with the three contributing non-DoD task force members that it is unfair for defenders of the APA task force report to use their end-of-report approval as evidence that the report simply reflected the consensus of a diverse task force rather than an intentional pro-DoD approach. The behind-the-scenes evidence squarely contradicts this, and a proper reading of the meeting proceedings is inconsistent with this as well.

d) "Safety Monitor" argument

One of the primary points emphasized by Behnke and Banks in their interviews with us was that having psychologists involved in interrogations to observe the interrogators was of critical importance in ensuring the safety of the detainee. The rationale is that psychologists' training in human behavior makes them uniquely situated to watch for and stop "behavioral drift" –the phenomenon identified in Philip Zimbardo's famous Stanford prison experiment and elsewhere that when individuals use their position of authority and absolute control over others to cause them discomfort or pain, the individuals with this power will often tend to drift toward greater and greater uses of that power unless stopped. Banks, along with Lefever and others who taught at military SERE schools say that this is a key and legitimate role for psychologists at SERE training, since without such a "safety monitor," even SERE instructors pretending to be captors of U.S. soldiers may go too far. In fact, when Air Force SERE personnel were brought to Guantanamo Bay in December 2002 to provide guidance about "employing 'SERE' techniques during detainee interrogations," the instructors' Standard Operating Procedure memo used the term "Watch Officer" as a standard position within SERE procedures (although the memo did not specify that the Watch Officer needed to be a psychologist). |11|

Psychologists ranging from the APA's leading critics to Susan Brandon and Michael Gelles have expressed doubt that psychologists are uniquely or well situated for this role, especially outside of a SERE training context. For purposes of our discussion here, we assume that having someone monitor interrogators for "behavioral drift" would be an important part of the interrogation process if the interrogator is intentionally inflicting some form of physical coercion or psychological distress (as in SERE training). And it seems reasonable that the training and experience of psychologists would make them among the best candidates for playing the role of "safety monitor" or "watch officer" by watching the behavior of the interrogators.

However, Banks, Dunivin, Behnke, and others who emphasize this role for psychologists in interrogations, and who tend to use it as the primary (and positive-sounding) justification for including psychologists in the interrogation support process, |12| are also quick to say that psychologists should be included in interrogation support because they help make the interrogations "effective." This was one of the four pillars of the Banks/Dunivin "safe, legal, ethical and effective" formula that the PENS report adopted. And the PENS report made it an ethical obligation of psychologists working on interrogations to try to rely on methods that are "effective."

Their theory is therefore that when psychologists are involved in an interrogation of a non-cooperative foreign detainee considered an "unlawful combatant" suspected of knowing important information, in an environment of intense pressure to produce actionable intelligence to protect the American public and in which the protections of the criminal justice system do not apply, psychologists should be playing two roles at the same time: (1) strict monitor of the interrogator, including promptly telling the interrogator (or telling his supervisor or commander) that he is going too far and needs to stop, and (2) partner of the interrogator in trying to engage in interrogation techniques that will be effective in getting the detainee to be cooperative and to tell the truth about what he knows.

This strikes us as either naive or intentionally disingenuous. The pressures on the psychologist in this situation not to stop the interrogator from becoming more aggressive are very significant - both because the interrogator and psychologist are working together to make the interrogation effective and likely have a need to work together on an ongoing basis on other interrogations; and because the psychologist likely would be utilizing his subjective judgment in telling the interrogator that he has gone "too far" (a judgment that can easily be subject to criticism and second guessing) rather than an objective judgment based on clear lines drawn by external sources (e.g., DoD or APA guidelines). One would think that mature, confident psychologists primarily committed to the role of "safety monitor" would be able to overcome these pressures in most situations. But this would depend on the individual psychologist, and the context of the individual situation. In other words, it might work or it might not.

Just as it makes little sense to say that SERE techniques can be "reverse engineered" for detainee interrogations with little fear of lasting psychological damage because they are used safely in controlled environments on informed, consenting U.S. soldiers, so too does it make little sense to say that a "watch officer" will always be solely motivated to stop an aggressive interrogation of a detainee because it works successfully in SERE training when there is no actual concern that public safety will be compromised if the "interrogators" do not get "actionable information" from the pretend "detainee." This is especially true when the "watch officer" is also being asked to help make the interrogation as effective as possible.

If Banks and Behnke really believed that safety was the only reason a psychologist needed to be involved in interrogations, they could have written the PENS report to limit a psychologist's role in interrogations to this function. The report could have said that psychologists may support interrogations only by playing the role of safety monitor to ensure the safety of the detainee by watching the interrogator to ensure that behavioral drift does not occur. But as Gelles pointed out, this would mean that a psychologist could not consult in the way psychologists typically do in law enforcement situations, by advising on interrogations and investigations to make them effective in environments in which the protections of the criminal justice system apply. And neither Banks, Dunivin and DoD nor Behnke and APA wanted to impose such a significant limit on the involvement of psychologists in national security operations.

Similarly, some APA defenders told us that they only intended the PENS task force report to allow psychologists to support interrogations by recommending "rapport-building" techniques, not physical or aggressive ones. But the report does not say this, although it could have. Given (i) the public awareness of the Bush Administration's narrow understanding of key terms like "torture" and "inhumane" and its claim that the Geneva Conventions did not apply, (ii) the widespread media reports about abusive interrogation techniques, and (iii) the explicit discussions at the PENS meeting and the media about specific techniques like stress positions and sleep deprivation, it was obvious to everyone involved in the PENS Task Force that national security psychologists would be asked to advise on interrogation techniques that went well beyond rapport building. The PENS Task Force report could have said that psychologists may support interrogations only by recommending techniques that constitute rapport building. But as with the other limitations, this was not consistent with Banks' and DoD's preferences (and therefore Behnke's and APA's) that the role of psychologist not be limited beyond whatever constraints DoD itself had in place.

Some critics who have correctly alleged that APA-government collusion led to the PENS Task Force report further allege that APA's motive must have been based on the rationale of the Justice Department memo, under which harsh interrogation techniques are not torture if a psychologist or other relevant expert says the technique to be applied will not cause severe physical or psychological suffering. We did not find evidence that this Justice-Department-memo rationale was part of the thinking or motive of APA officials. We obviously cannot determine whether this was an important, behind-the-scenes rationale for some government actors. But we did not see evidence that this rationale was discussed with or was an important consideration for APA officials.

9. Other issues in the Task Force report

a) Application of Ethics Code

At the July 2004 meeting at APA with CIA, DoD and FBI psychologists - the precursor to the PENS meeting–CIA psychologist Kirk Hubbard argued that the APA Ethics Code should not apply to work by psychologists in national security operations, such as interrogations, because a code written for the ethical treatment of patients was not a good fit for this different context. |13| The PENS report explicitly rejected this argument and noted in its introduction that the Ethics Code binds psychologists whenever they take actions as a psychologist and therefore applies to work on national security interrogations. The report also made it clear in one of its 12 ethical guidelines that the Ethics Code provision prohibiting "multiple relationships" meant that it was unethical for a psychologist to both consult on a detainee's interrogation on behalf of the government and act as the detainee's health care provider.

These were positive points in the PENS report, and the first one constituted a refusal to go along with a position previously advanced by the APA's lead contact at the CIA (although the CIA appeared be effectively unrepresented at the PENS Task Force, with the possible exception of Mel Gravitz in light of his substantial connections to the CIA). On the other hand, Behnke described these as clear and easy points to make, and we note that the DoD officials were not opposed to them.

b) Ethical obligation to detainee

The 11th PENS ethical guideline says that psychologists have "ethical obligations to individuals" who are not their clients, including "to ensure that their activities in relation to the individual are safe, legal, and ethical." In making this statement, the PENS report cites Ethics Code standard 3.04 ("Avoiding Harm"), which says that "psychologists take reasonable steps to avoid harming ... others with whom they work, and to minimize harm where it is foreseeable and unavoidable." The PENS report statement does not specifically mention interrogations, but the statement means that psychologists consulting on interrogations have an obligation to follow standard 3.04 with regard to detainees.

However, if physical pain and psychological distress do not automatically equate to "harm," as some of these DoD psychologists said, then the failure to provide any specificity about how to determine whether interrogation techniques that intentionally cause pain or distress constitute "harm" means that standard 3.04 may not provide substantial protection. For instance, Banks's view was that some stress positions were "safe" and therefore might be properly used as interrogation techniques. (He cited the "push up" stress position to us as an example.) Similar, the PENS report refused to take a position on sleep deprivation despite being asked to do so.

Furthermore, we found it highly notable that the PENS report introduction omits the "do no harm" principle from its discussion of the key Ethics Code principles. The Ethics Code sets out aspirational principles "to guide and inspire psychologists toward the very highest ethical ideals of the profession." The very first sentence in the first principle says, "Psychologists strive to benefit those with whom they work and take care to do no harm." Remarkably, the PENS report avoids this sentence and quotes instead from the next sentence: "In their professional actions, psychologists seek to safeguard the welfare and rights of those with whom they interact professionally and other affected persons". Behnke told us he could not recall why he did not include the "do no harm" sentence but did not think its exclusion had much significance. Our conclusion is that because of the ambivalence within the DoD task force members about how to define "harm" as it relates to physical pain and distress, and the desire by Behnke and Banks not to take a hard-and-fast position that psychologists in interrogation situations can never "do harm" (despite the Ethics Code principle), Behnke intentionally left out the "do no harm" language.

Addressing this issue specifically would have been feasible in a wide variety of ways, for instance by providing a non-exclusive list of prohibited specific techniques, or by describing prohibited conduct by using words such as "abuse," "physically coercive," or "intentionally inflicting physical pain or mental suffering other than mental suffering incidental to lawful sanctions." The decision not to do so reflects an intentional decision to keep the PENS report at a high level of generality at Banks' request.

c) Access/use of medical data

One allegation identified in media reports leading up to the PENS Task Force meeting was that physicians and psychologists were learning of a detainee's vulnerabilities (such as phobias) through his medical records and then passing that information to interrogators as part of the effort to try to break down non-compliant detainees. Notably, the PENS report does not deny psychologists access to a detainee's medical records. Instead, it prohibits psychologists from making improper use of the records ("to the detriment of the individual's safety and well-being"). This was based on a request from Banks, who said that having access to a detainee's medical records was important so that a psychologist would have the necessary insight to determine that a legitimate interrogation technique (such as providing a cooperative detainee with a candy bar) might cause health problems (by seeing that the detainee was diabetic, for instance). Because of Banks's request, the PENS report allowed this access.

APA critic and Georgetown psychiatrist and law professor Gregg Bloche, who knew Behnke from law school, lobbied Behnke strenuously after the PENS report to change this "no improper use" provision to a "no access" provision, because of the strong potential for abuse that could occur as a result of access to detainee records. Behnke did not change it.

However, one year later, when a Guantanamo Bay "BSCT" |14| psychologist sought a confidential ethics consultation with Behnke in order to complain that BSCT psychologists' access to detainee medical records had recently been halted, Behnke strongly urged her not to push for access to the medical records. But the rationale Behnke articulated was not exclusively an ethical one, but a PR one as well–that if the media knew that DOD psychologists supporting interrogations were pushing for access to medical records, even if for legitimate reasons, it would look horrible. However, when Banks took the same position within the confidential PENS Task Force meeting, Behnke adopted the position as part of the report.

Behnke and the APA's position on this issue therefore fits the pattern we saw in this investigation regarding PENS: positions were taken to please DoD based on confidential behind-the-scenes discussion and with an eye toward PR strategy.

d) Research

The PENS Task Report contained several recommendations that further research be conducted. This included a paragraph "encourag[ing] . . . further research to . . . examine the efficacy and effectiveness of information-gathering techniques, with an emphasis on the quality of information obtained. . . . Also valuable will be research on cultural differences in the psychological impact of particular information-gathering methods and what constitutes cruel, inhuman, or degrading treatment." A subsequent section recommended that APA encourage psychologists to engage in research into "methods for gathering information that is accurate, relevant, and reliable. Such research should be designed to minimize risks to research participants such as emotional distress, and should be consistent with standards of human subject research protection and the APA Ethics Code."

The evidence shows that Mumford, Brandon, Newman, and Gravitz made drafting suggestions regarding the research recommendations, and at least some of Brandon's drafting suggestions made it into the final version.

Critics have pointed to some of this language as an indication that APA was intentionally attempting to provide ethical support for research on detainees at Guantanamo or elsewhere by the CIA or DoD, or was otherwise attempting to allow for research that involved harsh interrogation techniques without the proper human-subject-research protections.

On the one hand, we found two notes in Behnke's handwritten notes from the PENS Task Force meeting in which the phrase "research on detainees" or "detainees as research subjects" was noted. Behnke provided no explanation for these notes, and we found no emails or other documentary evidence relating to them. In addition, in a meeting at the Department of Homeland Security about two years earlier attended by Mumford and Brandon, one of the subjects discussed was collecting data relating to detainees. Sources have told us without corroboration that there is evidence of the CIA engaging in activity regarding detainee interrogations that would constitute improper research.

Further, ethics experts have told us that the language in the PENS report quoted above was woefully deficient in terms of the language that would typically be expected in order to communicate proper protections. And the language quoted above recommending research into "what constitutes cruel, inhuman, or degrading treatment" in light of "cultural differences" is ambiguous, and so may easily be read to suggest that the research being recommended is to determine if interrogation techniques that Americans would find cruel, inhuman or degrading may not be consider so bad by other cultures.

On the other hand, we did not see evidence linking these recommendations to any actions by APA officials regarding research, or suggesting that the recommendations provided authorization or assistance to the government to conduct human-subjects research without informed consent. We noted that these recommendations are not within the PENS report's 12 ethical guidelines, and therefore do not have the force of ethical guidelines for psychologists, in a way that might be pointed to as a justification for a psychologist's actions.

We found this a topic on which it was difficult to draw clear conclusions; our discussion and analysis of the evidence continues in the detailed PENS section below.

10. "Emergency" action by the Board

After the task force report was finalized in Sunday, June 26, the Board of Directors acted in a highly unusual fashion to declare an "emergency" and to adopt the report as "APA policy," an act normally reserved for the APA Council of Representatives. The Board was not required to take any quick action with regard to the task force. Behnke had arranged for expedited approval by the Ethics Committee, and if there was a desire to formally adopt the report as APA policy, the Council of Representatives was meeting about six weeks later. But the evidence shows that the Board acted in this unusual fashion motivated principally by the desire of APA Board members Ron Levant (APA President) and Gerry Koocher (APA President-Elect) to (1) create a PR message that would be perceived as backed not just by a public statement but by actual substance (a new APA ethics policy) and that could be used in a fluid PR situation perceived as negative, and (2) curry favor with DoD which had communicated that it wanted a prompt release of the report so it could use the report for its own purposes (which were both PR and policy purposes). |15|

The New York Times had run an article on Friday, June 24, the first day of the task force meeting, reporting that "[m]ilitary doctors at Guantanamo have aided interrogators in conducting and refining coercive interrogations of detainees, including providing advice about how to increase stress levels and exploit fears." The article quoted both Behnke and the ethics committee chairman of the American Psychiatric Association and compared the positions of the two organizations: "While the American Psychiatric Association has guidelines that specifically prohibit the kinds of behaviors described by the former interrogators for their members who are medical doctors, the rules for psychologists are less clear. . . . [I]n a statement issued in December, the American Psychological Association said the issue of involvement of its members in 'national security endeavors' was new." |16| APA President Levant worried that the article made APA look bad because it "portrayed APA as unsure of where the ethical boundaries lie." |17| To Levant and Koocher, managing APA's image required it to show that the task force report was more than simply a set of high-level, "loose" statements that might be justified as a tentative "initial step," but was instead a clear and "strict" statement of the actual ethical boundaries. The fact that the PENS report was nothing of the sort did not stand in the way of their strategic attempt to create the best possible media response.

By the last day of the task force meeting, Behnke had received information that an in-depth article by Jane Mayer on the policy and practice of aggressive interrogation techniques would be published in the New Yorker as soon as Tuesday, July 5, |18| and advised Board members Koocher and Anton (along with Anderson, Farberman and Gilfoyle) of this. In response, Farberman said that if the PENS report was "fully approved" by that date, "we have very strong talking points. Without it we're not in as strong a position." |19|

In addition, Behnke was communicating to Levant, Koocher, Anton, and APA management that DoD was very eager to get a copy of the PENS report, especially with The New Yorker article due to come out. Banks wrote Behnke to express appreciation for APA "supporting]" DoD in the report: "I just finished with the [Army] Surgeon General and he will be in front of the Senate soon, on this issue. (He is very supportive.) Having APA's support will mean a lot."

And on the afternoon of Thursday, June 30, Science Directorate staff Heather Kelly informed Behnke, Farberman and others that Secretary of Defense Rumsfeld was personally waiting to receive the report on an expedited basis:

    Rumsfeld's exec assistant will apparently be waiting by the fax for this! His super secret direct access fax line. They're just a tad interested. |20|

That same afternoon, the Board was sent the PENS report along with a note that President Ron Levant was working on a proposal to the Board. There was one significant Board comment in response: Board member Diane Halpern (APA President in 2004) had "one very strong recommendation - that somewhere we add data showing that torture is ineffective in obtaining good information." This prompted an internal staff email exchange in which Gilfoyle asked whether it was true that "torture has been demonstrated to be ineffective." Behnke's response showed once again that his primary goal was to stay completely aligned with DoD: "the Task Force did not make such a clear, blanket, statement, and my sense is that the Task Force may not have felt entirely comfortable doing so." In other words, because at least some of the DoD members were not ready to agree that torture was effective, Behnke wanted to block this Board member's suggestion. (For instance, Lefever's view from his experience with SERE was that waterboarding was often effective at getting U.S. soldiers in the program to reveal accurate information that was supposed to be secret.) Farberman agreed: "Hopefully, Diane's suggestion is dead in the water." |21|

In this context of vigorous media coverage and intense demand from DoD, President Ron Levant suggested to the APA Board not just that it declare an emergency and act in an expedited manner regarding the report, but that it take action to actually "adopt the task force report as policy." In an email to the Board early in the morning of Friday, July 1, Levant asked for the views of the Board about "declaring an emergency to adopt" the report, "the emergency being that APA and psychology are getting pretty well trashed in the media, damaging our public image."

Barry Anton had received the draft resolution that contemplated the Board "adopting the report as policy," and emailed Behnke with a "concern": "I'm not sure it can go out as policy without [Council of Representatives] approval. The [Board] can certainly accept the report." It is likely that the plan to declare an "emergency" was in response to Anton's concern that the Board could not normally adopt something as APA policy, since this was the Council's function.

By Friday, July 1, without an in-person or phone meeting or discussion, but simply some short emails, all the Board members who responded to Levant's question had voted in favor of declaring an emergency and adopting the report as APA policy.

Some of the most long-serving Board members and APA management members confirmed to us that it was highly unusual for the Board to declare an emergency. One long-time executive said this was the only declaration of an emergency they could recall other than a time when the Board needed to taking a refinancing action swiftly in order to avoid an interest rate hike. Long-serving Board member Koocher agreed that other than emergency actions relating to financial situations requiring immediate action (such as the refinancing situation), or one situation many years earlier when immediate action was required to avoid a negative government regulatory action, he did not believe the Board had ever declared an emergency in order to take a specific action.

In looking back on this Board action, it was brought to our attention that under the Washington DC law applicable to not-for-profit corporations like APA, Board votes taken outside of an in-person meeting require a unanimous, written vote from all Board members by sending in signed proxy statements. Not only are there no such signed proxy statements, but APA has no records of all Board members voting by email. Our search of APA's emails uncovered votes from 11 of the 12 Board members, but we did not find a vote or email response from Board member Jessica Henderson Daniel, who did not remember voting on this. Thus, it may be that the Board action adopting the PENS report as APA policy in 2005 was not a valid action of the Board on procedural grounds.

11. Quick transformation of PENS into strict human rights document through misleading public statements as PR strategy

When APA made the PENS report public on July 5, 2005, it issued a statement emphasizing that psychologists could in fact serve in consultative roles to national security interrogations consistent with the Ethics Code, exactly the message that was pleasing to DoD. However, the criticism was immediate, including a negative story in the New York Times on July 6. The article pointed out the lack of specificity in the report and said it appeared "to avoid explicit answers" on key topics.

The day before this, Banks and Behnke had anticipated that APA would get asked about the "real issue," as Banks said, which they defined as: "What is the level of psychological distress that moves it into abuse?" This was an issue PENS had intentionally avoided, as described above. Behnke told Behnke he would think about "how to package" the best response to this issue.

The day of the Times story, Behnke drafted a response letter to the editor for Levant, which was published in the Times over Levant's name on July 7. In the letter, Levant claimed that the PENS report contained "strict ethical guidelines" and then repeated some of the statements in the PENS report. From this point on, the media strategy was clear: emphasize that PENS said that psychologists could not engage in torture or cruel, inhuman or degrading treatment and claim PENS as a strong, pro-human-rights document. The principal purpose of PENS - to state that psychologists could in fact engage in interrogations consistent with the Ethics Code - was relegated to the sidelines, since any message seen as pro-DoD or permissive regarding the involvement of psychologists in interrogations was deemed bad media strategy in light of the intense and quick criticism of PENS. And of course, the principal motivation for Behnke and other APA officials in drafting PENS the way they did - pleasing DoD - remained fully concealed.

These were misleading public statements and this was a disingenuous media strategy. A document that was intentionally very limited, non-specific, and evasive on the key issue in order to, principally, please DoD, now came to be described principally as a strong anti-torture and pro-human-rights document.

B. Conclusions Regarding Secret Joint Venture Between APA and DoD Officials In Years After PENS

From the time of the PENS Task Force through at least the next three years, and through the end of the Bush Administration, Behnke led the extensive efforts by APA to defend the PENS report, to beat back criticisms on the issue through public statements and interviews, and to defeat efforts by the APA Council of Representatives to pass resolutions that would have definitively prohibited psychologists from participating in interrogations at Guantanamo Bay and other U.S. detention centers abroad.

In these efforts, Behnke effectively formed an undisclosed joint venture with Banks -sometimes joined by Dunivin and some of the DoD officials who had served on the PENS Task Force - to ensure that APA's statements and actions fell squarely in line with DoD's goals and preferences. In numerous confidential email exchanges and conversations, Behnke regularly collaborated and coordinated with Banks to determine what APA's position should be, what its public statements should say, and what strategy to pursue on this issue. Before responding to an APA Board member, before drafting a statement for the APA President, before giving a news interview, before advising the APA Ethics Committee, and before crafting strategy regarding potential Council resolutions, Behnke very regularly checked with Banks first to make sure Behnke and APA were in line with what DoD wanted, as articulated by Banks. On many of these occasions, Behnke was effectively seeking, and received, Banks' pre-clearance for an APA action or statement before Behnke proceeded.

1. APA/DoD close and secret collaboration on public statements and media strategy

Virtually every time the issue of psychologists' involvement in interrogations arose publicly in an important way - when a national reporter would ask Behnke for a comment or interview for an article being prepared; when Behnke would be preparing for an interview on NPR; when Behnke was preparing a draft letter from the APA President or other APA officials to be published or sent to an APA listserv for the Council of Representatives or other groups; to cite some examples–Behnke reached out to Banks to ensure that APA's statements and positions were in line with the military's policies and preferences and to coordinate what APA should say and how it should proceed strategically. Behnke was, in effect, the lead strategist and spokesperson for APA on this issue and worked hard to stay in control of every word that APA officials uttered on the issue. Our review of the contemporaneous documents and communications makes it clear that his closest partner and collaborator in this endeavor was Banks, joined at times by other DoD officials such as Dunivin, James, and Shumate. Often there was a predictable pattern to Behnke's activity: upon observing that APA would need to make a statement or issue a response, he would email Banks within a very short amount of time to seek his guidance or to suggest that APA take a particular an approach or use specific language, and then would ask if Banks approved of, or wanted to change, the approach or language.

Behnke shared with Banks and Dunivin that APA's "media strategy" was to claim that APA's ethics position on psychologists' involvement in interrogations was very similar to the position of the American Psychiatric Association and the American Medical Association. And Behnke turned to the two of them, and Banks in particular, for assistance in crafting strategic messages and specific language that would help advance this strategy. We saw numerous examples of Behnke partnering with Banks as a virtual joint communications strategy team for APA.

Banks, too, used Behnke to help determine what DoD officials should say on the issue of psychologists being involved in interrogations. In one instance, the Commander of the DoD Joint Task Force at Guantanamo asked Banks to draft a statement on the issue, and Banks turned to Behnke for drafting help.

In another instance, Behnke worked behind the scenes with Banks to help DoD lobby the APA President on this issue, by helping Banks write a strong letter to the APA President after the President received a strong letter from APA members concerned about reports of psychologists being involved in abusive interrogations. In effect, the APA Ethics Director was secretly drafting a letter from DoD to the APA President to help DoD influence the APA President's position on an issue.

Behnke and Banks worked to keep their collaboration highly confidential. In an email to Banks during one of the many instances in which Behnke sought his review and pre-clearance of a draft APA statement, Behnke told Banks that "discretion about prior review is essential." They titled numerous emails "Eyes Only", and we found two emails in 2007 (shortly before their email traffic diminished, based on the emails in APA's system) in which they discussed ensuring that the emails themselves were securely deleted.

Other APA officials were sometimes involved in these collaborations, such as Koocher, Levant, Farberman, and Kelly. But for the most part, the email evidence of the collaboration with Banks and other DoD officials shows Behnke as the clear leader of this effort.

Banks, Dunivin, and other DoD officials thanked Behnke profusely, called him a hero and their "knight in shining armor," and shored him up when he took criticism. They invited him in 2005 to speak at the previously closed-off small annual conference for national security psychologists with security clearances, and to provide paid |22| instruction at the confidential military interrogation-and-detention-operations two-week training course newly created in 2006 to train psychologists and psychiatrists in interrogation support, as described below.

2. Behnke as DoD contractor providing training as part of BSCT psychologist interrogation training program

Behnke became a DoD contractor and, from 2006 to the present, has taught ethics to BSCT psychologists (and occasionally psychiatrists) "in support of interrogation/detention operations" at Fort Huachuca in Arizona, the DoD base that houses the U.S. Army Intelligence Center. Banks and Dunivin coordinated with him about what he should tell and not tell the APA Board about these activities, wanting to conceal some aspects of the tight partnership they had created in light of the criticism within the APA community on this issue.

In fact, Behnke never informed the Board of his participation in the DoD interrogation training program for BSCT psychologists, his status as a DoD contractor, or the payments from DoD to APA. He did, however, tell his supervisor, APA Deputy CEO Michael Honaker, that he turned to Banks as an advisor from time to time, and that he was regularly giving a paid ethics lecture at an Army base as part of the interrogation training course for BSCT psychologists. Honaker did not provide this information to CEO Norman Anderson or the Board. When Anderson learned from Sidley during the investigation that Behnke had been providing this training as a DoD contractor, he appeared stunned and was visibly upset that the matter had not been discussed with the Board. Honaker said that it did not occur to him that the Board would need to know or discuss this information, because he saw it as a standard example of Behnke providing ethics training to an important group of psychologists, as he does in a variety of settings.

Honaker and Behnke claimed that the trainings were clearly revealed in the Ethics Office's publicly-available annual reports. But in 2006 and 2007, the reports only listed the trainings as "workshops" in Sierra Vista, Arizona relating to the PENS report, and beginning in 2008, they began being described as "workshops on ethics training for military psychologists." The reports do not state that the "workshops" were at a DoD facility or the U.S. Army Intelligence Center or were part of the military's official interrogation training program for BSCT psychologists. Emails between Behnke and Dunivin show that this was by design; Behnke proposed to Dunivin that he describe the trainings in his "yearly report to the Board" with "something simple" like "training on ethics and interrogations" and "Sierra Vista, Arizona." Dunivin agreed that he should "leave it Sierra Vista and simple." And in Behnke's annual reports in 2006 and 2007, he even removed the word "interrogations."

3. Actual and attempted trips to Guantanamo

In late 2006 and early 2007, when a BSCT psychologist at Guantanamo Bay reached out to Behnke and Banks to seek a confidential in-person ethics consultation at Guantanamo from Behnke about an ethics issue, it became apparent to Behnke that the APA Board might not support such a trip in light of the controversy within the APA ignited by PENS. Confidentially plotting with Banks about how to get the APA Board to agree to let Behnke travel to Guantanamo, Behnke ended up asking the BSCT psychologist to write a formal memo requesting his in-person consultation for a confidential ethics consultation. The psychologist did so and prepared a formal travel plan as well. However, at a meeting with the Board, Behnke was told that he could not travel to Guantanamo, but could provide the requested ethics consultation in the United States. Behnke therefore offered instead to consult with the BSCT psychologist in Washington if an in-person consultation was required. The Board's decision triggered a strongly worded email to three Board members from Dunivin (who had apparently heard that Behnke's inability to travel was due to a Board decision), accusing them of being not interested in providing assistance to military psychologists and questioning their ability to make sound decisions to support military psychologists in light of the PENS report. When Banks inquired whether this had been "destructive on" Behnke," Behnke assured Banks that "[n]othing could diminish ...my commitment to continue to support all of your efforts, and the efforts of the great men and women who protect our country and our freedoms."

There had been two trips to Guantanamo by APA Presidents after the PENS report, accompanied by Behnke on one of them. In October 2005, DoD invited APA President Ron Levant as well as the President of the American Psychiatric Association and others to a half-day visit at Guantanamo, as later reported in the press. And in November 2006, APA President Gerald Koocher and Behnke went on a similar trip to Guantanamo. For the Levant trip, Behnke arranged for Banks and Dunivin to provide a phone briefing and talking points to Levant so that he would be "on message" during and after his trip. Behnke similarly had Banks brief Koocher before his 2006 trip. Both trips consisted of meetings with Guantanamo leaders who provided positive information about the facility and detainee treatment. The trips were mostly PR trips for DoD, but after the 2005 trip, Assistant Secretary of Defense Winkenwerder and Surgeon General Kiley had a dinner with the group to discuss their observations and any concerns. Koocher told us that he found the opportunity to see the actual Guantanamo facility and receive in-person briefings helpful. Upon his return, Koocher prepared an extensive power point presentation with many photos provided to him by DoD showing the detention center and detainee facilities. The presentation was very positive about the Guantanamo facility and its value, including a slide that highlighted the "interrogation yield." Koocher said that the slides simply represented what DoD had told the group, and that he would orally provide this caveat when he gave the presentation. But on its face, the presentation is an uncritical, highly positive presentation of Guantanamo.

4. Policy victory

One of the key benefits that APA sought from its close collaboration with DoD was a positive outcome regarding the official policy DoD was developing on the issue of interrogations and the involvement of psychologists, psychiatrists, and other "behavioral science consultants." And APA received exactly what it wished for, as DoD official doctrine and Medical Command policy explicitly provided a large role for psychologists (and not as much for psychiatrists) in the support of interrogation and detention operations - an outcome that clearly was due in substantial part to what was seen by DoD as the very "supportive" position taken by APA in the PENS report.

Spurred largely by the draft policy document that Morgan Banks (along with other SERE psychologists in Army Special Operations Command and Debra Dunivin) drafted in and around 2004 to provide guidance and instructions to BSCT psychologists regarding interrogations and detention operations, the Army Surgeon General's Office started a formal effort in late 2004 and early 2005 to draft an official Medical Command policy which would apply to all behavioral science consultant involved in interrogations. As the Executive Agent for the administration of DoD detainee policy, the Army Surgeon General's Office's policy would cover the entire Medical Command. The draft document that Banks had drafted by the first half of 2005 (and which he distributed at the PENS meeting) became the official Medical Command policy (almost verbatim in all key respects) in October 2006.

APA had learned of this policy development effort in early January 2005 as it was starting to put together the PENS Task Force, and it was clearly one of the lead motivating factors for APA in selecting task force members and producing a task force report that would please DoD. In effect, APA assured that its ethics policy would be completely aligned with DoD's policy by (i) taking the key framework in Banks' draft policy document ("safe, legal, ethical, and effective") and using it as the key framework in the PENS report, and (ii) following Banks's lead in all other important policy respects in the PENS report. Banks's draft policy document thus became the basis for both the PENS report and official DoD policy, making it a foregone conclusion that APA and DoD policy were perfectly aligned. In fact, the most recent version of this DoD policy (2013) still contains the full PENS report as a formal part of its policy document.

While the Surgeon General's Office was finalizing its Medical Command policy, based on Banks's document, and getting approval from various parts of DoD, higher-level DoD doctrine documents were required before the Medical Command policy could be issued. The highest-level of these doctrine documents was a "DoD Directive," (or "DoDD"). In November 2005, the Acting Secretary of Defense issued a DoDD on "Intelligence Interrogations, DoD Debriefings, and Tactical Questioning." The eight-page document contained an explicit mention of "behavioral science consultants" assisting interrogations, an inclusion that was seen as a huge victory for SERE and other military psychologists. Right after it was issued, a SERE psychologist with the DoD Joint Personnel Recovery Agency sent a congratulatory note to the team that had helped make this a success - Behnke, Banks, and two Air Force SERE psychologists: "Thanks to all for your hard work, we are now in an official DoDD."

The next step in DoD doctrine was a "DoD Instruction" on the topic ("DoDI"). In June 2006, the Assistant Secretary of Defense for Health Affairs, William Winkenwerder, issued a DoDI that explicitly prioritized psychologists over psychiatrists in the role of "behavioral science consultants" who supported interrogations and related activities. The document provided that "physicians [i.e., psychiatrists] are not ordinarily assigned duties as [behavior science consultants], but may be so assigned, with the approval of the [Assistant Secretary of Defense], in circumstances when qualified psychologists are unable or unavailable to meet critical mission needs." And in comments to the media about the new DoDI, Winkenwerder explicitly mentioned that the "clear support" from the APA regarding the role of psychologists in interrogations (a reference to PENS) "influence[d] our thinking" because, he noted, the American Psychiatric Association had not taken a similarly supportive position.

This was a very large victory for those who were focused on growing opportunities for employment and influence for psychologists, especially compared to psychiatrists. By winning the primary position with DoD regarding which mental health professionals would provide support for DoD interrogations, APA cemented its position with DoD in a manner that is likely to produce substantial employment and other financially-beneficial opportunities for psychology.

5. Abandonment of PENS "casebook" plan

One of the key arguments made by Behnke toward the end of the PENS meeting, and for years later, was that the lack of specificity in the PENS report was necessitated by the complexity of the topic and the fact that PENS was just an "initial step" in the process. The next step - crucial, he said, in the development of meaningful guidance to psychologists - would be a "casebook commentary" that would be produced by APA with input from the PENS Task Force and the Ethics Committee. The book would provide examples and the kind of clear, specific guidance psychologists sought, he said. Several of the DoD psychologists on the task force were highly dubious that this was feasible or desirable, including Scott Shumate, who made his views on this plain. Nevertheless, Behnke promised Mike Wessells that the casebook would be done in six months, a promise that was crucial for Wessells in signing off on the task force report.

Ultimately, Behnke did virtually nothing to pursue a casebook for years, effectively abandoning an essential element of his (disingenuous) claim that APA's development of ethical guidance on the issue would be a multi-step process. Behnke made the argument to us during his interviews that because the Council of Representatives began passing resolutions in 2006 that provided more specific guidance for psychologists, he believed a casebook was unnecessary. We do not think this is true, since as set out below, Behnke was the lead APA strategist in attempting to manipulate and water down Council resolutions to minimize the effect on DoD. The real reason there was no casebook is that there was never a real desire to create one, because it would necessarily create the same problems that specificity within the PENS report would have had (as APA staff had identified as early as December 2004) - drawing a line that allowed psychologists substantial latitude in supporting interrogations, as DoD desired, created substantial PR problems. The only solution to this dilemma was to keep the guidance nonspecific.

That this was actually Behnke's thinking is corroborated by the internal emails he sent in January 2011, when he finally created a 30-page draft document on this topic that was something well short of a book. The document contained "vignettes" and Ethics Committee responses. In sending the draft document to Anderson, Honaker, Gilfoyle, Farberman, and two others, he explained that "[o]ur primary focus was to write responses that would not cause us any problems." He expressed satisfaction that there had been almost no discussion of "this piece of the interrogation issue for some time," and said that his plan was "to post this text, quietly, very quietly on the Ethics webpage." Thus, six years after PENS, the great promise of a casebook as the proper means of providing specificity and resolving the unavoidably (said Behnke) limited nature of the PENS report had shrunk to the form of a 30-page document, intentionally created to avoid any "problems," which was snuck into a corner of the APA website with the fervent hope that it would be entirely ignored.

6. Obstruction on amending Ethics Code Standard 1.02

At the Council meeting in August 2005 following the PENS report, the Council passed a motion instructing the Ethics Committee to explore adding language to Ethical Standard 1.02 to ensure that that provision could only be used in a manner "consistent with basic principles of human rights." That provision (as revised in 2002) provided if there was a conflict between a psychologist's ethical obligations and her obligations under the "law, regulations, or other governing legal authority" (which included military orders), she had to try to resolve the conflict, but if she could not, she could follow the "law, regulations, or other governing legal authority" without committing an ethical violation. The Introduction to the APA Ethics Code (which was not binding) repeated this language of 1.02 and added the phrase, "consistent with basic principles of human rights." Council's motion required the Ethics Committee to make a recommendation about whether to revise 1.02 by adding the language in the Introduction.

Behnke drafted a document for the Ethics Committee in September 2005, which the Committee adopted, rejecting the suggestion that 1.02 be amended in this way. For the next four years, Behnke engaged in a wide variety of actions to intentionally delay and obstruct efforts to amend 1.02, despite increasingly clear calls to do so. Standard 1.02 was clearly a provision that was of importance to national security psychologists. Behnke coordinated his efforts at times with Banks and Dunivin by, for instance, having them help create "opposition" to the calls to revise 1.02.

Ultimately, it was not until Council explicitly instructed the Ethics Committee to take action resolving the discrepancy between Standard 1.02 and the language in the Introduction of the Ethics Code, and set a February 2010 deadline, that anything changed. As a result of Council's insistence, Standard 1.02 was amended in February 2010 to include the requirement that the provision not be used "to justify or defend violating human rights."

7. Behind-the-scenes attempts to manipulate Council of Representatives actions in collusion with, and to remain aligned with DoD

Finally, one of the most significant ways in which Behnke and APA secretly collaborated with DoD officials was in Behnke's extensive efforts to manipulate Council of Representatives actions from 2006 to 2009, in an effort to undermine attempts to keep psychologists from being involved in national security interrogations and to minimize the damage to DoD psychologists who might have been threatened from more aggressive potential Council actions. Especially in 2006 and 2007, but also to some extent in 2008 and February 2009, Behnke became APA's chief legislative strategist, taking a very active and sophisticated role in manipulating the resolution process and the proponents of these measures in order to achieve this goal.

Behnke was the authorized APA leader in this effort, and he was obviously taking these steps on behalf of APA. There were other APA officials involved with Behnke in these efforts, including at times Koocher, Anderson, Honaker, Farberman, Gilfoyle, and (in 2008-09) Ellen Garrison. Their involvement is discussed in the detailed section of the report. But no one was as thoroughly and consistently involved as Behnke was, and he was clearly (as one of the DoD officials said to him after he revealed some of his plans) "a superb strategist" - a compliment to which he responded with an email wink emoticon.

The pattern we saw from the evidence was that Behnke would use a sophisticated mix of strategies to either delay the passage of resolutions that would create negative implications for DoD or manage them so that the negative implications would be minimized. First, he would attempt to bring the proponents of aggressive resolutions into his fold by "working with them" on their resolutions, a gesture with the appearance of support that was almost always taken at face value and accepted by the proponents. Once he began "working with them," Behnke would act like a partner and teammate to encourage the view that he could help them achieve a good outcome. Second, Behnke would then use his very substantial language skills to wordsmith the draft resolutions in order to excise the parts that were negative for DoD and to substitute alternative language that appeared to achieve some of the proponents' original goals, but often achieved less than they thought because of nuanced drafting moves. Third, Behnke would attempt to convince the proponents that they should bring in the division of APA that represented military psychologists on the theory that the proponents should not want to be "divisive" within APA, and that it was best to form a "consensus." Fourth, Behnke would engage in active and sophisticated behind-the-scenes lobbying in both direct and indirect ways in order to ensure passage of the more moderate alternative he had crafted and to avoid a revolt in the direction of more aggressive measures. This even extended to his micro-managing when invitations for lunch with the APA President were issued (to nip "organizing" in the bud) and where the invitees would sit for lunch during the Council meeting (to increase "visibility").

In essence, Behnke's insight was that when faced with the potential for an aggressive Council action that he viewed as negative for DoD, the best strategy was not to oppose it directly but to create an alternative that could be seen as a middle ground with enough credibility to attract support from a substantial percentage of the people who would have otherwise supported the aggressive action. And through the mechanisms set out above, he was confident he could manipulate the "middle ground" alternative to make it positive or tolerable for DoD.

Behnke engaged in his usual highly confidential communications with Banks (as well as Dunivin and James, and sometimes Gelles) in order to jointly determine what strategy or position was best for DoD, to seek pre-clearance of specific language, and to work on drafts of key documents together.

The Council did in fact pass resolutions in 2006 and (especially) 2007 that created additional restrictions on national security psychologists as a matter of "APA policy" (although these were not enforceable ethical standards), but they were much milder as a result of Behnke's intense behind-the-scenes manipulation, done in close coordination with DoD officials such as Banks. While these two resolutions were being drafted and prepared for Council's consideration, Behnke engaged in a two-pronged approach: (1) engage with and defer to Banks in crafting language that would not create any problems for DoD, and (2) actively gather opposition against the membership-generated resolutions by direct communications with those he knew would be against the resolution and by ghost-writing opposition letters from prominent DoD individuals such as Michael Gelles and Larry James.

In 2008, in a highly atypical action, a membership "petition resolution" received sufficient support to result in a vote of APA membership on the petition. The petition provided that "psychologists may not work in settings where persons are held . . . in violation of either International Law (e.g., the UN Convention Against Torture and the Geneva conventions) or the US Constitution." The petition passed. After this, APA formed an "advisory committee" to make recommendations to the Council on how to implement the petition. The advisory committee's report, presented to Council during the February 2009 Council meeting, was considered a highly negative action by Banks.

Banks sent a long email - largely drafted by Behnke - to a very large group of DoD and national security psychologists calling on them to oppose the advisory group's report. James was designated as the Council point person and he promptly met with Behnke to "develop a battle plan of attack" (in James's words). After the Council meeting, James reported back to the DoD group that victory had been achieved and the resolution would have no practical effect, because the word "unlawful" had been inserted in the title of the resolution, and DoD had just issued an official report (following a request from President Obama) that Guantanamo complied with the Geneva Conventions. Thus, DoD had no such "unlawful" facilities. In his interview with us, James said with some pride that the "other side" simply hadn't done its homework.

C. Conclusions Regarding APA's and Psychology's Ties with the CIA, 2001 - 2004

1. Overview

From 2001 through 2004, there was a great deal of interaction on issues related to interrogations between key CIA psychologists and both APA staff and prominent psychologists, who were considered elder statesmen in psychology or were former or current APA Presidents. These interactions were occurring precisely during the time that the CIA was using "enhanced interrogation techniques"–including waterboarding–in vigorous fashion against certain detainees, and had given a key role in the development and implementation of the enhanced interrogation techniques to contract psychologists Jim Mitchell and Bruce Jessen. These interactions clearly raise the question whether APA was providing direct and important support to the CIA's interrogation program and the enhanced interrogation techniques.

One of the CIA psychologists who brought Mitchell and Jessen into the CIA and with whom they worked closely was Kirk Hubbard. Hubbard headed the Research and Analysis Branch of the CIA's Operational Assessment Division, a unit primarily focused on psychological assessment of spies and potential spies, and he does not appear to have been directly involved in CIA interrogations. During this time, Hubbard worked closely with two APA staffers–Geoff Mumford and Susan Brandon (who later moved to the White House Office of Science and Technology Policy)–and a CIA contractor who worked for the RAND Corporation, Scott Gerwehr, to put on confidential conferences at which academics in behavioral science could meet with national security psychologists from the CIA, DoD, and the FBI on subjects like "detecting deception." This was a vitally important concept to Mitchell and Jessen in implementing their apparent theory that harsh interrogation techniques can actually yield accurate information if the interrogators are able to determine when the interrogation subject is lying.

Also during this time, Hubbard created a "Professional Standards Advisory Committee" ("PSAC") consisting of three leading outside psychologists–former APA Presidents Ron Fox and Joe Matarazzo, and former APA Division 30 (Hypnosis) President and security-cleared CIA contractor Mel Gravitz. Mitchell and Brandon also attended at least one of the PSAC meetings, at which the focus was psychological assessment issues. Yet Matarazzo and Gravitz were also used by Hubbard and others at the CIA as consultants on a limited number of important issues to the interrogation program–for example, Matarazzo was asked to provide an opinion about whether sleep deprivation constituted torture. And following a controversy within the CIA about whether Mitchell could continue to participate in interrogations, Gravitz was asked to provide a written analysis to define the ethical boundaries for psychologists participating in interrogations. In addition, Hubbard, Mitchell and other CIA psychologists met with former APA President Martin Seligman at his home to fully understand the psychological theory of "learned helplessness," a theory that Mitchell and others at the CIA were clearly incorporating into the CIA interrogation program. Seligman and Matarazzo also spoke at the SERE training academies where Mitchell and Jessen had been instructors, with Seligman doing so at Hubbard and Mitchell's request.

It was also clear during this time that APA staff, principally Mumford, were keenly interested in establishing strong and lasting relationships with the CIA, and were intent on trying to please Hubbard and the CIA. In one 2004 email from Mumford to Hubbard in response to Hubbard's request that Mumford not disclose Mitchell and Jessen's affiliation with the CIA, Mumford emphasized that "[we] don't want to (and won't) do anything to jeopardize our harmonious working relationship."

Despite these extensive interactions and APA's clear desire to please the CIA, it appears that the actual actions that APA took during this period that may have assisted the CIA in its interrogation program were limited to putting on a small number of conferences with the CIA for academics and key national security psychologists (including Hubbard, Mitchell, and Jessen). It may be that the discussions at these conferences were of great value to CIA psychologists like Mitchell and Jessen, who were alternating between (a) interrogating and waterboarding detainees in secret CIA sites abroad and (b) having meetings and conferences in the U.S. on topics that might assist them in attempting to extract information through torture and other abusive interrogation techniques. But we did not find evidence that current APA officials like Mumford and Brandon were read into or were aware in any significant way of the CIA's interrogation program, which was classified, or had any meaningful knowledge of what Mitchell, Jessen, or other CIA personnel involved in interrogations were doing.

There were certainly important snippets of information in front of Mumford and Brandon that would have caused a reasonable person to suspect that Mitchell, Jessen, and other at the CIA might be engaging in abusive interrogation techniques, including detailed media reports about interrogation abuses at CIA "black sites"; the public disclosure of the Justice Department memos that narrowly defined "torture" and explicitly applied to CIA interrogations; particular interest by Mitchell at the "detecting deception" conference in the empirical evidence on the topic; and a 2003 email from Hubbard to Mumford and Brandon that Mitchell and Jessen are "doing special things to special people in special places, and generally are not available."

But we did not find evidence that went beyond these points, and found Mumford's and Brandon's denials that they knew about the CIA's interrogation program to be credible. CIA contract psychiatrist Andy Morgan told us that he saw no indication that APA officials were read into or received any information about the interrogation program or the interrogation activities of Mitchell, Jessen, or others. We consider Morgan a credible source of information based on his close working relationship with Hubbard and others at the CIA at the time, his knowledge of the CIA's bureaucracy and how it generally communicated internally about the interrogation program, and his opposition to the "enhanced interrogation techniques" portions of the CIA's interrogation program.

On the other hand, as with APA officials who intentionally avoided seeking more information in the face of substantial indications of psychologist involvement in abuses at Guantanamo, as described above, Mumford and Brandon took no steps to inquire about the clear concerns these pieces of information would have raised if their focus had been a concern about the involvement of psychologists in abusive conduct toward detainees. But this was not their focus. Instead, their focus was on building good relationships with the CIA and other government agencies, and successfully acting as conduits between national security psychologists at the CIA (and elsewhere) and the academic psychology community that had potentially helpful expertise and research.

APA did not have the same close and longstanding relationship with the CIA as it did with DoD, and the potential financial advantages for psychology from a close relationship with the CIA would likely have appeared smaller than with DoD. But for APA Science Directorate and its staff, having a partnership with the CIA was of great benefit. The CIA paid tens of thousands of dollars for the expense of setting up conferences and reimbursing participants for their travel expenses, and these conferences allowed APA to showcase its relevance, visibility, and leadership on subjects of interest to psychology. Building that relationship held the promise for more CIA-funded conferences and other joint projects in the future that might similarly highlight (or suggest) APA's leadership and influence.

Although some of the details of APA's interactions with the CIA were kept secret (such as the identities of some of the people who attended the conferences), the APA Science Directorate disclosed its partnership with the CIA fairly openly in its publications to APA membership, and described the title and purpose of the conferences. The APA staff created very detailed summaries of the conferences, including the list of participants and details about who said what, and circulated them broadly to all the academics and others who attended the conferences. Thus, unlike what we saw with the APA-DoD interactions in the context of the PENS Task Force and subsequent actions, we did not see here anything close to the level of concealment, behind-the-scenes plotting, or close coordination about APA actions–other than as to the planning of the conferences. The conferences were not open to the public, but a large variety of academics and government officials from outside the CIA (including the FBI) attended the conferences and received the summaries, so we did not conclude that there was any meaningful effort to keep the existence or much of the content of the conferences secret.

As to the actions and knowledge of the former APA officials listed above (Fox, Gravitz, Matarazzo, and Seligman), some of them were clearly brought closer to the circle of knowledge through important interactions with Hubbard and Mitchell, as described further below. But we did not find evidence that there was a significant link between APA and their interactions or communications with the CIA. It is a fair question whether important interactions between these very prominent former APA officials also entailed, led to, or were connected to important interactions between APA and CIA. Except for very limited instances, we did not see any evidence of this in our examination of APA emails and other documents, and in our interviews, despite having found a very substantial amount of email and documentary evidence establishing important interactions between APA and government officials in other contexts, as set out above and below. On the one hand, this makes sense, since prominent psychologists who are former APA Presidents and Board members would not necessarily think that their interactions with the CIA about these issues would call for them to contact the APA, unless the CIA had specifically requested something from APA. On the other hand, we keenly recognize that in investigating activities involving the CIA, an agency that trains people to keep things secret for a living, we are especially limited in our ability to determine definitively what occurred, and therefore we are aware that our conclusions can only be based on the evidence available to us. This is especially true when the interactions are between CIA officials and individuals who were not APA officials or employees at the time, since their emails would not necessarily have been within APA's system.

Finally, as we got deeper into our investigation and had reviewed more evidence and had a greater understanding of what we were seeing, we observed that in 2004 and 2005, during the year leading up to the PENS Task Force, the APA's interactions with CIA officials on this issue slowed dramatically, and its interactions with DoD officials increased dramatically. As a result, the collaboration between APA officials and government officials regarding the PENS process and related follow up events was dominated by APA-DoD interactions, with no evidence of significant CIA interactions regarding PENS.

Clearly, there were important APA-CIA interactions on the topic of ethics and interrogations in 2004, including a key set of emails between Hubbard, Mumford, and Behnke in which Hubbard indicated that Andy Morgan and Hubbard (although likely just Morgan) had concerns about activities of national security psychologists that appeared inconsistent with the requirements of the APA Ethics Code. Those emails launched internal APA discussions that led to a confidential July 2004 roundtable meeting at APA on the topic for about 15 national security psychologists from the CIA, DoD and the FBI (including Hubbard, Shumate, Fein, and Gelles), and some academics and APA staffers (including Behnke)–which in turn was the precursor of the PENS Task Force.

However, after this July 2004 meeting, we saw no evidence of follow up discussions with Hubbard or the CIA on the topic, and no apparent CIA interest in the PENS Task Force, in the evidence we reviewed. Likely explanations for this are that (i) Hubbard, APA staffs main point of contact at the CIA, retired from the CIA in April 2005 (two months before PENS), leaving APA staff with no significant contact at the CIA, and (ii) the CIA's enhanced interrogation program was apparently in its waning days by late 2004 and early 2005, according to the 2014 Senate Intelligence Committee report. |23|

One potential exception to this is the participation of "observer" Mel Gravitz at the PENS Task Force meetings. Gravitz, who is approximately 90 and refused several requests for an interview, had worked as a contractor for years for the CIA. A leading expert on hypnosis and considered by some the founder of operational psychology, it is conceivable that Gravitz was at the task force in order to advance some interest of the CIA in the result of PENS, and was communicating with CIA officials in advance of and during PENS. However, we have seen no evidence of this, and it seems unlikely to us in light of what appears to be the very limited role Gravitz played at PENS and the absence of other visible APA-CIA communications–which we would expect to have been apparent to us based on our visibility into the substantial communications between Hubbard and APA. On the other hand, as set out in the detailed PENS section below, Gravitz contributed a small suggested paragraph to the draft PENS report regarding the recommendation that research be encouraged, and he had a prior relationship with Behnke.

We know that some of the most significant critics of APA–who have had access to the emails of the RAND employee and CIA contractor (Scott Gerwehr, now deceased), which revealed frequent emails with Hubbard, Mumford, and Brandon–have posited that there must have been significant CIA influence regarding the outcome of the PENS Task Force in light of the substantial APA-CIA interactions shown in these emails and the highly suspect content of the PENS report. Without the same access we had to APA emails and documents showing extensive APA-DoD collaboration in and after the time of the PENS Task Force, this is an understandable inference, once one reaches the conclusion that the PENS Task Force could only be explained by some sort of governmental influence. But with the benefit of the additional information discovered in our investigation, one can understand more clearly how very substantial APA-CIA interaction in the 2001 to 2004 time period did not lead to substantial CIA interactions with APA in relation to the PENS Task Force.

2. Initial contacts and 2002 Conference

It appears that the relationship between APA staff and Hubbard began as a result of the proactive effort by the Science Directorate shortly after 9/11 to reach out and offer assistance from psychological science to government agencies involved in counter-terrorism–principally the FBI and the CIA, and eventually the Department of Homeland Security as well. Mumford, the head of government relations for the Science Directorate, asked Brandon, a relatively new Science Fellow at APA (a one- to two-year position) who had been a psychology researcher at Yale, to work on making the connections and setting up meetings. Kelly, a subordinate to Mumford who was generally in charge of government relations with DoD for the Science Directorate, was also involved.

This outreach led to discussions with Steve Band, Chief of the FBI Behavioral Science Unit at the FBI Academy in Quantico, Virginia, about organizing a counter-terrorism conference at which law enforcement and intelligence personnel would come together with academics and researchers to brainstorm and compare ideas. The result was a February 2002 conference at the FBI Academy, titled "Countering Terrorism: Integration of Theory and Practice," that was attended by about 70 people, including Hubbard, Mitchell, and other CIA personnel, FBI personnel, other federal officials, state and local law enforcement personnel, a wide variety of academics, and APA staffers including Mumford, Kelly, Brandon, and Behnke. Brandon and Mumford produced a 50-page summary that listed the participants and the different "scenarios" that were discussed by smaller groups. A small amount of the document discussed interrogation and interview techniques, but there is no reference to physical, aggressive, or disorientation techniques that might be used to get a non-compliant person to talk.

3. Martin Seligman

Interviews and emails indicate that the model for the 2002 conference was a December 2001 meeting at the home of Martin Seligman, prominent psychologist and former APA President, commonly associated with the "learned helplessness" theory among other theories. The 13-page summary of the meeting, entitled "How To Win the Peace," lists the 18 participants, including Hubbard, Mitchell, Band, and several prominent academics. The document lists six policy recommendations with a summary of the rationale for each, including "Isolate Jihad Islam from Moderate Islam worldwide," and "Subvert the social structure of terrorist organizations." Interrogations were not referenced.

Combining the statements made to us by Seligman, Hubbard, and Mitchell, it appears that Hubbard met with Seligman at his house on two occasions–once along with Mitchell and Jessen, and once along with two other CIA psychologists or attorneys. At these meetings, learned helplessness was discussed (in substantial detail during at least one of the meetings), and Seligman was invited to speak to a SERE conference in San Diego about learned helplessness. Our evidence shows that Mitchell was very interested in the application of the learned helplessness theory to interrogations of uncooperative detainees. Hubbard and Mitchell say that they never discussed interrogations with Seligman and did not provide him information about the interrogation program. Seligman agrees and says he thought their interest in learned helplessness related to its insights for captured US personnel who are trained through the SERE program to resist providing information in interrogations. We think it would have been difficult not to suspect that one reason for the CIA's interest in learned helplessness was to consider how it could be used in the interrogation of others. But this probably depends on whether it would have seemed likely in 2002 that the CIA would use SERE techniques to conduct interrogations. A December 2002 article in the Washington Post quoting unnamed CIA officials as describing highly abusive interrogation techniques at CIA black sites would have created this suspicion, but we do not have enough information to know what Seligman knew or thought at the time. And because we do not see any evidence that this was connected with actions or decisions by or communications with APA officials, we did not spend further time investigating the matter.

4. Joseph Matarazzo

Hubbard says when he returned to CIA headquarters in 2000 from a covert assignment in London to lead a new behavioral science research unit, he believed the CIA needed to be less insular and he therefore formed the PSAC with Matarazzo, Gravitz, and Fox to enhance the access of Hubbard's unit to experts in the area of psychological assessment and related issues. Contemporaneous emails from Brandon confirm that this was his approach. Matarazzo, Gravitz, and Fox were apparently paid a small amount. Hubbard, Matarazzo, and Fox told us the meetings focused almost exclusively on understanding and applying psychological assessment models in various contexts, but that none of the contexts related to interrogations.

However, we gathered some pieces of evidence (including from Matarazzo himself, age 89, who was very responsive and proactively cooperative in our investigation) that Matarazzo was making some efforts to assist the CIA on interrogation topics, which may have been separate from the activities of the PSAC. First, Matarazzo recalled Hubbard asking him to provide an opinion about whether sleep deprivation constituted torture. After querying some psychologists with relevant expertise, Matarazzo told Hubbard that he did not believe sleep deprivation was necessarily torture. Matarazzo recalled responding to a written inquiry from Hubbard on the topic, but he did not have access to the document. Hubbard said he could not recall this. Second, the head of the APA Science Directorate at the time, Kurt Salzinger, recalls Matarazzo approaching him shortly after 9/11 to ask if Salzinger knew psychologists who worked in the area of interrogation, or "getting information from people." Salzinger said he made one inquiry that went nowhere and then he dropped it. Finally, PENS Task Force member Michael Wessells recalled Matarazzo approaching him at a 2002 psychology conference in Singapore and saying something to the effect of, "In this environment, things are different, and the CIA is going to need some help. Things may get harsh. We may need to take the gloves off." Wessells said he was not sure what Matarazzo wanted, and could not tell if Matarazzo was asking him to help the CIA or was simply trying to persuade Wessells that harsher treatment of detainees was justified. Wessells said he told Matarazzo he disagreed and nothing further occurred.

In addition, corporate records show that Matarazzo was a 1% owner of Mitchell and Jessen's company (Mitchell Jessen & Associates), which apparently received a very large contract from the CIA, as reported in the Senate Intelligence Committee's 2014 report and various media reports. Matarazzo insists that he was not an owner of this company but was instead an owner of "Knowledge Works," which was a continuing education company run by Mitchell and Jessen, he says. The documents we have show that, at the time, "Knowledge Works" was not a separate company but was a division of Mitchell Jessen & Associates that received continuing-education accreditation from APA and conducted a relatively small number of continuing-education classes for military personnel. Mitchell and Matarazzo gave us statements describing Matarazzo's role in the company as highly limited and solely related to the continuing education portion of the company. We did not find any connection between this topic and APA actions or decisions about its ethics policies or government interrogation policies or activities, and therefore did not consider this a central part of our investigation. We therefore did not take further steps to determine what Matarazzo's role was in Mitchell Jessen & Associates.

5. Melvin Gravitz and his opinion for James Mitchell on ethics and interrogations

We learned that in about late 2002, the head of the CIA's Office of Medical Services, psychologist Terrence DeMay, complained about Mitchell's involvement in the interrogations then being conducted. This led to a substantial dispute within the CIA, which led the head of the CIA's Counterterrorism Center, who oversaw Mitchell and Jessen's involvement in interrogations, to determine that an opinion should be sought regarding the ethics of a psychologist participating in the CIA's interrogations. It was decided within the CIA to ask Mel Gravitz to provide the opinion.

Gravitz's written opinion–a very interesting document–was provided to us. Entitled "Ethical Considerations in the Utilization of Psychologists in the Interrogation Process," the version that we have was emailed from Gravitz to Mitchell on February 13, 2003, during a very active period of the CIA's enhanced interrogation program. The document says that "[r]ecently, some questions have been raised regarding the ethical implications of psychologists applying their skills by assisting in the interrogation process of certain persons who have been detained in the currently ongoing world-wide war against terrorism." It recites that it will analyze the APA Ethics Code principles as they apply to "Agency staff psychologists and contractors, all of whom are required by regulation to be licensed." At the time, Mitchell was an APA member, as described in greater detail in the "Ethics Adjudications" section below. The document states that the services rendered by psychologists in interrogation, could include consulting to, observing, or participating in interrogations. The document says that one of the Ethics Code's stated goals is "the protection of the individuals and groups with whom psychologists work, the latter including the national interest." No cite is given for this statement.

The document then quoted, and at times discussed, various Ethical Standards in the Ethics Code, including Standard 1.02 (conflict between ethics and law or orders). The document cited the provision relating to "providing services in emergencies" (Standard 2.02, which relates to providing mental health services in emergencies, even if it is not within the psychologist's area of competence) for the proposition that "there are also implications for a national security emergency where lives may be at stake." The document cited the provision that psychologists base their work on "established scientific and professional knowledge" (Standard 2.04), and added that "when there is a minimal knowledge base existing in science or practice, such services may be informed by the psychologist's prior and ongoing experience." This appears to be a reference to the relative paucity of research on the effectiveness of the "enhanced" interrogation techniques, and a suggestion that Mitchell's experience with SERE training or other detainee interrogations could be relied upon. The document closed with a reminder that "the psychologist has an obligation to [a] group of individuals, such as the Nation," and that the Ethics Code "must be flexible applied to the circumstances at hand."

We were told that as a result of Gravitz's opinion, the chief of the CIA Counterterrorism Center was satisfied that Mitchell could continue participating in and supporting interrogations.

We found no evidence that Gravitz's opinion was prepared in consultation with or with the knowledge of anyone at APA. Given our knowledge of Behnke's writing style and approach, we do not believe he had any involvement in this document, as its style and mode of analysis are very different than his.

Hubbard and Mitchell said generally that they never sought and were never aware of Behnke or anyone from APA providing information or any communications about ethics issues, interrogations or otherwise.

Mitchell described for us in general terms why he thought his involvement in interrogations (including his personal involvement in waterboarding, based on his own statements) was ethical under the APA Ethics Code. He said that it was appropriate under the Ethics Code to weigh the potential harm to the individual being interrogated (in order to gather information to prevent a terrorist attack) against the potential harm to other individuals (the public) that would be caused from a terrorist attack. He said that based on the "chatter" he was seeing, the balance of harms justified the interrogation techniques he and others used–which, he emphasized, were legal at the time.

Gravitz's opinion is notable for its emphasis on the consideration to be given to national security interests and protecting the country, well beyond anything in the actual Ethics Code. The document also emphasizes the supposed "flexibility" of the Code. Clearly, the Gravitz document would have been seen as creating a wide open, unrestricted ethical path to engage in virtually any acts a psychologist believed were appropriate to "protect . . . the national interest." It provides an excellent example of the importance of deciding whether loose or tight ethical constraints are right for a particular context. An analysis of APA ethics guidance was not an irrelevancy–even for Mitchell and the CIA. While there is no guarantee that a different ethics opinion–one with a more constraining analysis–would have stopped Mitchell or other psychologists from participating in abusive interrogations, the outcome of the analysis had the potential to affect decisions about how the government would proceed.

Mitchell, who resigned from his APA membership in June 2006, about nine months after a disciplinary complaint was brought against him and not pursued by the APA Ethics Office (as detailed below), said he could not recall why he resigned, but believed it was because he thought APA was becoming "overly political" and was taking stances that were not consistent with his beliefs.

6. Philip Zimbardo

Some of APA's critics suggested that, based on information Zimbardo provided, Seligman and Matarazzo may have tried to help Hubbard recruit Philip Zimbardo, APA President in 2002, to assist the CIA, including with its interrogation efforts. Zimbardo and Kirk Kennedy told us that Hubbard and Kennedy met with Zimbardo (although this may have been two meetings instead of one), and Zimbardo remembers meeting with Hubbard. Zimbardo says that Hubbard asked him to gave a talk on interrogations, based on his work on law enforcement interrogations. Zimbardo said he did give a talk to a small group at the CIA (apparently Hubbard's unit), but that he declined any further involvement with Hubbard or the CIA, including a suggestion from Hubbard (vaguely remembered by Zimbardo) that Zimbardo could receive a research grant. (Hubbard said he did not recall making this suggestion.) We found no evidence that these interactions between Zimbardo and Hubbard involved other APA officials or staff, or that they led to any actions by or communications with APA. This does not mean that there was no further connection between Zimbardo and the CIA, but we have no reason to believe this was the case.

Some have told us that Hubbard may have been attempting to influence Zimbardo while he was President to ensure that Ethics Code provisions governing informed consent in research (which were changed in 2002 as part of the APA's Ethics Code revision process) were changed. We saw no evidence to support this, and the meaningful changes to the relevant provision were proposed and agreed to by the Ethics Code Task Force prior to 9/11. As APA President, perhaps Zimbardo would have been in position to roll back the changes to this provision drafted by the Ethics Code Task Force before the Council of Representatives finally approved it in 2002, and in that sense, perhaps one might have had a motive to lobby him to ensure the change was not reversed before the Code was finalized. But we saw no evidence to support this. And getting involved in trying to reverse any of the changes agreed to by the Ethics Code Task Force after a five-year process (discussed below), even as APA President, seems like an unlikely endeavor to undertake.

The evidence of Zimbardo's involvement on national security issues when he was President in 2002 is that he met on Capitol Hill with Senator Daniel Inouye, chairman of the Senate Defense Appropriations Subcommittee, to generally express support (as APA typically did) for the funding of DoD behavioral science research. Zimbardo recommended to APA staff that they set up a meeting for him with National Security Advisor Condoleezza Rice, whom Zimbardo knew when Rice was Provost of Stanford University. A meeting was set up with Rice's staff that Zimbardo, Heather Kelly and Susan Brandon attended, but Rice did not. Kelly and Brandon recalled that the meeting was a relatively high-level discussion with Zimbardo doing most of the talking and the National Security Council staff saying little of interest. Contemporaneous emails reveal nothing else of interest.

7. Robert Sternberg

The 2003 APA President, Robert Sternberg, made a presentation to Hubbard's group at the CIA in December 2002, accompanied by Brandon and Mumford. The presentation related to the development of psychological assessment tools based on the theory of "successful intelligence." The Science Directorate publicized the visit in its newsletter under the headline, "APA President Sternberg Visits the CIA," and posted his power point presentation on the APA website.

Sternberg was uncooperative with the investigation; he begrudgingly and briefly spoke to Sidley and denied ever giving a presentation to the CIA or visiting the CIA.

8. 2003 and 2004 conferences

Following the February 2002 conference at the FBI, Mumford and Brandon discussed planning new conferences on topics that they thought would be of interest to Hubbard and the CIA, based on their communications with Hubbard, especially the subject of deception. As part of this effort, Brandon sent emails in May 2002 to a wide variety of researchers and academics, most of whom she did not know, soliciting ideas for research regarding this issue. One of the researchers who responded was RAND employee and CIA contractor Scott Gerwehr. Gerwehr was an expert on the topic of detecting deception. Brandon, Mumford, and Gerwehr began emailing about the topic and the possibility of creating a conference on the subject, and they brought Hubbard into the email discussions. This developed into a close and friendly working relationship between the four of them as they planned CIA- and RAND-sponsored conferences in 2003 and 2004. By this point, Brandon had left the APA and had taken a position at the National Institutes of Health. By the time of the 2004 conference, she had taken a position in the Science Division of the Office of Science and Technology Policy within the Executive Office of the President.

The 2003 conference, called "The Science of Deception: Integration of Practice and Theory," took place on July 17 and 18 at RAND's headquarters in Arlington, Virginia. About 40 people attended, including Hubbard, Mitchell, Jessen, and about ten others from the CIA (some of whom gave only their first names), Steve Band and two others from the FBI, Scott Shumate (having moved by then from CIA to DoD), a SERE psychologist who worked with Morgan Banks (Gary Hazlett), Andy Morgan, Brandon, Mumford, Gerwehr, and numerous academics and researchers. As with the 2002 conference, a detailed written summary was created describing the "scenarios" discussed, "research challenges," and the participants. One of the scenarios related to "law enforcement interrogation." After discussing three main research challenges, the written summary listed five additional research challenges, including "what pharmacological agents are known to affect apparent truth-telling behavior," and "what are sensory overloads on the maintenance of deceptive behaviors." Other than these notes, there were no strong indications that interrogation topics were discussed that are relevant to our inquiry. None of the conference participants we spoke to believed that there was any information provided about what techniques the CIA was using or considering using in interrogations or about its actual interrogation program, and we saw nothing from the contemporaneous emails that contradicted this. As with the 2002 conference, details about the 2003 conference, including its sponsorship by the CIA, were published in APA's Science Directorate newsletter.

A 2004 two-day conference on "intuition in policing" was organized and held in similar fashion. Brandon, Mumford, Gerwehr, and Hubbard organized an extra day of the conference on the "detecting deception" topic. We found nothing more relevant regarding this conference than the 2003 one.

9. Role of Susan Brandon

Some of APA's critics have suggested that Brandon, because of her position at the Office of Science and Technology Policy (OSTP), may have played an important role in pushing APA to support the Bush Administration and aggressive interrogation techniques. We think this likely overstates Brandon's position in the Administration, and her influence within APA.

OSTP is one of about 20 offices within the Executive Office of the President, which also includes, for instance, the National Security Advisor, the Council of Economic Advisers, the Office of Management and Budget, the Office of National Drug Control Policy, and the Office of the U.S. Trade Representative. The head of OSTP is its Director who has a Director's Staff. There are currently five divisions within OSTP, including National Security and International Affairs, Technology and Innovation, Environment and Energy, and Science. Each division is headed by an Associate Director. Underneath each Associate Director are various Assistant Directors and staff.

Brandon was an Assistant Director within the Science Division. Her title was Assistant Director for Social, Behavioral and Education Sciences. She was therefore several levels below the Director of OSTP. She said she had little contact with the Director, and we have not seen email evidence that contradicts this. Emails from the time show that she occasionally expressed her disappointment to Mumford that she was often thought of as an "education research" person within OSTP, even though this was not her area of expertise.

It is not clear that the Science Division of OSTP (or OSTP as a whole) had any significant influence at the time on the issue of detainee interrogations or related national security issues. We have not seen evidence or public reporting that suggests that OSTP was a significant player within the Bush Administration, and officials within CIA and DoD who we asked about OSTP and Brandon thought there was no influence whatsoever.

Because OSTP is part of the Executive Office of the President, Mumford jokingly referred to her as "White House Susan" and "Oval Office Susan." But we saw no evidence supporting the contention that she was a significant player within the Administration on these issues.

As set out above, Brandon was an observer at the PENS Task Force and played a role in drafting some portions of the recommendations regarding research. In that respect, she had some influence on the PENS Task Force report. But otherwise, and except as set out above regarding the conferences that APA organized with the CIA, the FBI, and RAND, we are not convinced that she played an important role in APA decisionmaking or actions.

D. Conclusions Regarding Changes to Ethics Code Task Force in 2002, Including "Nuremberg Defense"

The evidence establishes that revisions to the 2002 Ethics Code ("Code") were a response to the perception that the Code was being used as a weapon against psychologists to create liability in criminal, civil, and administrative proceedings. We did not see evidence that the revisions were a response to, motivated by, or in any way linked to the attacks of September 11th or the subsequent war on terror. Nor did we see evidence that they were the product of collusion with the government to support torture. Rather, psychologists felt that the length, breadth, and broad application of the five aspirational general principles and over 100 enforceable ethical standards in the Code provided a basis for state licensing boards, patients, and third-parties to pursue unwarranted and unjust legal action against psychologists. The 14-member Ethics Code Task Force ("ECTF"), comprised of members from a variety of practice areas, sought to revise the Code to address this issue and create protections for psychologists within the Code to insulate them from liability.

Over a six-year period, the ECTF, chaired by Celia Fisher, revised the Code to effect the desired changes and address the concerns of psychologists. The revised code ("2002 Code") became effective June 1, 2003. The most significant changes relevant to our review were the revisions to Standard 1.02 which addressed "Conflicts Between Ethics and Law." In the 2002 Code, Standard 1.02 was revised to make clear that it applied to conflicts between ethical obligations and the "law, regulations, or other governing legal authority" where the standard had previously only included the term "law." APA understood "regulations or other governing legal authority" to include military orders from a superior. In the event of a conflict, psychologists were required to make known their commitment to the Ethics Code and take steps to resolve the conflict. If the conflict was unresolveable, psychologists were permitted to adhere to the requirements of the law, regulations, or other governing legal authority - a concept that was not included in the prior version of Standard 1.02. Standard 1.02, in the 2002 Code, was the first time that the Code explicitly permitted psychologists to follow the law instead of their ethical obligations when faced with a conflict between the two.

APA critics have alleged that the revisions to Standard 1.02 were the product of collusion with the government and had the effect of providing psychologists with a defense to torture. Specifically, they allege that the revised language in Standard 1.02 was developed with the government to permit psychologists' participation in interrogations and that it created a loophole that allowed psychologists to ignore their ethical obligations when these obligations conflicted with law, regulations, or other governing legal authority. In this way, critics allege that the standard provided cover for psychologists to participate in or consult on interrogations that employed enhanced techniques or methods that otherwise constituted torture. These psychologists, the critics have alleged, could, and in fact did, avail themselves of the protections of Standard 1.02 and the Nuremberg Defense |24| to excuse their unethical behavior on the grounds that they were "only following orders."

Given what we now know about the role some psychologists played in designing the enhanced interrogation program, the government's narrow definition of "torture" during the early years of the war on terror, and the way in which the military used psychologists as members of the behavioral science consultation teams at Guantanamo, the critics' argument is understandable. But the evidence does not fully support that argument. While the revisions to Standard 1.02 may have provided protection for some psychologists who were involved in abusive interrogations, the evidence shows that this was an unintended consequence of the ECTF's desire to insulate psychologists from liability in other areas -unrelated to interrogations and the way in which the government used psychologists during the war on terror. And the way in which psychologists may have used Standard 1.02 post hoc as cover for unethical behavior was not the focus of our inquiry. Instead we focused on the motivation, purpose, and process by which the Code was revised during the ECTF process.

The evidence shows that the primary motivation for the revision to Standard 1.02 was to protect psychologists who faced difficult choices when their ethical obligations of confidentiality conflicted with legal directives in the form of subpoenas or court orders that required disclosure of confidential patient information. ECTF members articulated two specific concerns, one raised by clinicians and forensic psychologists, and one raised by military and correctional psychologists, regarding ethical conflicts that drove the revisions to Standard 1.02. First, clinicians and forensic psychologists wanted to make clear that they could follow the law when they received subpoenas for treatment records (often in child custody cases) and faced the choice of complying with the subpoena and breaching confidentiality or ignoring the subpoena and being held in contempt. Second, military and correctional psychologists wanted to make clear that they could comply with military or other lawful orders when they received orders that required them to disclose confidential patient treatment records instead of being forced to choose between complying with the orders and disregarding them and facing a court martial or adverse employment consequences. Both groups of psychologists wanted the Ethics Code to make clear that when faced with a conflict, they could follow the law or an equivalent order or directive. The revisions to Standard 1.02 that effected this change were proposed in October 2000, nearly one year prior to the attacks of September 11th - and thus could not have been a response to or motivated by the war on terror - or the result of collusion with the government in the wake of September 11th.

Creating an avenue for psychologists to follow the law and subordinate their ethical obligations, particularly when the law included military orders, could have, and perhaps should have, been a red flag to ECTF members and prompted them to consider the Nuremberg Defense. And while we have no evidence that the ECTF considered this issue in connection with 1.02, he ECTF did explicitly discuss the Nuremberg defense in the context of the closely-related Standard 8.03 (now 1.03), which addressed "Conflicts Between Ethics and Organizational Demands." The primary concern with regard to Standard 8.03 was whether it was fair to permit psychologists working for an organization or corporation to engage in certain conduct without ethical ramifications, while sanctioning independently practicing psychologists who engaged in the same conduct but not pursuant to their employer's directive.

Before the revisions to Standard 1.02, Standard 8.03 was the ethical standard to which military and correctional psychologists would have looked for guidance. The revisions to 1.02 provided another source of guidance - arguably guidance that was clearer with regard to conflicts. Given that the Nuremberg Defense was discussed in the context of Standard 8.03, one would have expected someone to have raised it during discussion of Standard 1.02. Yet it appears that no one did.

We have no evidence that the failure to discuss the Nuremberg Defense in the context of revisions to Standard 1.02 was in any way connected to the work of psychologists in national security settings or interrogations. The only documentary evidence that we found related to the issue of interrogations in connection with the Code revision was an inquiry from a military psychologist who was also a Council representative, in February 2002, asking whether consultation with police interrogators who were trying to "break down" a suspect, or consultation with national intelligence organizations, was covered in the general principles of the code and whether principles on consultation could clarify what activities were covered by the Code. The ECTF Chair responded that providing specific guidance on pathways psychologists could use to address the dilemma was "beyond the scope of the code."

Thus, while at least one psychologist contemplated application of the code to psychologists consulting on interrogations, albeit police interrogations, we did not see evidence that this issue was considered by the ECTF, other than the Chair. That the Nuremberg defense and interrogations were not specifically discussed in the context of revisions to Standard 1.02 may suggest that the ECTF missed certain red flags, did not consider or contemplate all issues facing military and correctional psychologists, and deemed certain issues beyond the scope of the code. And this helped create a loophole in the Ethics Code that could be used later by psychologists seeking to escape ethical sanctions for following orders to take actions that would have otherwise violated the Code. But we did not find evidence that these revisions were the product of collusion with the government. Instead, the evidence shows that the revisions were born out of a desire to protect psychologists and a willingness to subordinate ethical obligations to do so.

APA critics have also alleged that changes to Standard 8.05 - which pertains to dispensing with informed consent for research - were the product of collusion with the government to facilitate psychologists' participation in abusive interrogations that constituted torture. As revised in 2002, Standard 8.05 allowed psychologists to proceed with research without informed consent from the subject where "permitted by law or federal or institutional regulations." Critics alleged this change allowed psychologists to conduct research on detainees without their providing, or being able to provide, informed consent. As with the changes to 1.02, we did not find any evidence that the changes to 8.05 were the result of collusion with the government. Indeed, the change to the language that allowed dispensing with informed consent if the law permitted it was added to the draft Code prior to September 11, 2001, and therefore could not have been the result of collusion with the government in the subsequent War on Terror.

E. Conclusions Regarding Improper Application of APA Ethics Disciplinary System to Protect CIA and DoD Psychologists

APA's Ethics Office works2jointly with the Ethics Committee in adjudicating ethics complaints against APA members. |25| The "fundamental objectives" of the Ethics Committee, among others, are to "maintain ethical conduct by psychologists at the highest professional level" and "to endeavor to protect the public against harmful conduct by psychologists." |26| Both the Ethics Office and the Ethics Committee fell short of meeting these objectives when adjudicating ethics complaints alleging improper involvement by national security psychologists in interrogations.

APA critics have alleged that the Ethics Office has been unwilling to investigate or act on complaints regarding psychologists who participated in, or were otherwise involved in interrogations. The evidence supports this allegation and shows three primary factors led to the Ethics Office's failure to properly address these complaints: (1) when conducting investigations the Ethics Office's longstanding practice is not to pursue the full investigative steps permitted by the Ethics Committee Rules and Procedures ("the Rules"); (2) the Ethics Office stretched the interpretation of its procedural rules so as to be as favorable as possible to the accused psychologist; and (3) at times the Ethics Director, Stephen Behnke, actively resisted taking any action against psychologists who participated in interrogations.

The Ethics Committee has an established set of Rules and Procedures (the "Rules") that apply to the adjudication of ethics complaints. When adjudicating complaints, the Ethics Committee and the Ethics Office are guided by these Rules as well as the longstanding practices of the Ethics Office, some of which are not specifically outlined in the Rules. Based on the Ethics Office's practice, the adjudication process is typically a highly limited, "paper-only" review, which means that the "investigation" consists merely of examining documents that are sent to the Ethics Office by the parties to an ethics complaint. Investigators take no affirmative steps to seek documents from other witnesses, and conduct no interviews, even though the Rules explicitly permit them to do both, and suggest to outside observers that the Ethics Office will take such normal investigative actions. |27| When faced with the choice of taking more investigative steps, as permitted by the Rules, and taking fewer steps, the Ethics Office almost always chooses the latter. Indeed, the "investigations" conducted by the Ethics Office do not comport with any ordinary understanding of the term "investigation" and would be more accurately described as a document review or case file assessment.

The limited steps taken by the Ethics Office to investigate ethics complaints facilitates interpreting the Rules in a way that is most favorable to the accused psychologist, which at times, is antithetical to a natural reading of the Rules. This strained reading of the Rules hinders the Ethics Office's ability to conduct any meaningful investigations into allegations of unethical behavior. The limitation is evidenced by the way in which the Ethics Office "investigated" the ethics complaints filed against Colonel Larry James and Major John Leso. The complaint filed against James, in December 2007, generally alleged that under his command, psychologists participated in abusive interrogations at Guantanamo, which included isolation and techniques designed to disorient the detainee, among other things. The "investigation" of this complaint consisted of a review of the documentation physically submitted by the complainant (but not examining critical documents cited by the complainant that required slightly more than minimal effort to obtain), after which the investigator, Stanley Jones (former APA Ethics Director hired as a consultant to do work for the Ethics Office from time to time), recommended that the case be closed without further action. Jones wrote that he did not think that there was "cause for action" as defined in the Rules; that is, he thought that the alleged actions, if proved, would not constitute a breach of ethics.

In recommending that the James matter be closed as not meeting the "cause for action" standard, Jones wrote that the complainant "provide[d] no data that the respondent ever in fact employed isolation or sensory deprivation at all, much less that he did so as part of an abusive interrogation program." This seems to suggest that the complainant would have to provide evidence to show that James actually participated in an abusive interrogation in order to find cause for action. Yet a plain reading of the Rules shows that the Rules do not require this heightened level of proof. Rather, the Rules provide that a cause for action "shall exist when the respondent's alleged actions and/or omissions, if proved, would in the judgment of the decision maker constitute a breach." |28|

Jones told Sidley that, with respect to the allegations set forth in the complaint against James, he questioned whether a psychologist would have had "notice that the 2002 Ethics Code meant that they could not be involved in activities that might create a degree of disorientation, disorganization, and dependence," and that he believed what James was allegedly doing "did not appear to violate the 2002 Code." At the time he was considering the matter, Jones also questioned whether the alleged behaviors would violate the statements of APA as of 2007; he was not sure that the alleged behavior would, in fact, be unethical under these standards. Jones's view that the alleged behavior was not, per se, unethical was shared by at least one other person in the Ethics Office.

Although the way in which the Ethics Office handled the James matter was technically permissible under the Rules, it demonstrates just how little effort the Ethics Office expends in its "investigation" of ethics complaints, the way in which the Ethics Offices stretches to construe the Rules in a way that is favorable to the accused, and how much the Ethics Office falls back on the rationale that standards in the Ethics Code were too vague to put psychologists on proper notice that certain interrogation techniques were unethical–a rationale that was never shared with APA membership, or the general public.

The complaints filed against Leso, in 2007 and 2008, generally alleged that as a BSCT psychologist, he established procedures for interrogating detainees and presided over interrogation sessions in which abusive techniques were used. An actual "case investigation" was never opened into the Leso matter. Instead, the Ethics Office merely opened a "preliminary investigation," which the Rules say is an investigation that may be conducted if the complaint does not provide sufficient information to determine whether "cause for action" exists–that is, whether the allegations, "if proven . . . would constitute a breach of ethics." The "preliminary investigation" into the allegations against Leso consisted of correspondence with one of the complainants to request support for the allegations and correspondence with Leso to request his response to the allegations. The Ethics Office stayed the matter when an action against Leso was pending before a state licensing board. When the licensing board did not act against Leso, the Ethics Office took the additional step of conducting internet searches to obtain additional information and kept the matter open for a total of six years (still merely as a "preliminary investigation"), with the explanation that they wanted to see if information related to Leso's actions would become publicly available. The Ethics Office did not take any affirmative steps to request information from witnesses who might have had relevant information (including individuals with whom APA had close ties, such as Banks, Dunivin, or James) or to seek documents through, for instance, a FOIA request. As the Deputy Director of the Ethics Office and the Director of Adjudication, Lindsay Childress-Beatty recommended closing the matter because she thought there was a "reasonable basis to believe that the allegations cannot be proved by a preponderance of the evidence." This was a reference to another Rule, Rule 5.5, which states that even if "cause for action" exists (that is, the allegation, if proved, would constitute a breach of ethics), the case shall be closed if the Ethics Committee Chair and the Ethics Office Director agree that "there is a reasonable basis to believe that the alleged violation cannot be proved by a preponderance of the evidence."

As in the James matter, the Ethics Office staff again questioned whether certain techniques, such as "sleep deprivation, withhold food, isolation," were actually unethical. In a memorandum to the Ethics Committee Chair, Childress-Beatty wrote, "these techniques in and of themselves may not be cruel, unusual, inhuman, degrading treatment or torture depending upon factors such as the situational context, length of time used, and intensity." Childress-Beatty's view is a departure from what Behnke told Sidley–that most of these techniques should have been prohibited, especially in light of the PENS Report. Moreover, suggesting that techniques such as sleep deprivation, withholding food, and isolation could not be proven to be unethical by a preponderance of evidence even before an actual case investigation is conducted is stretching the bounds of the Ethics Code so as to not find a violation of any standards. Notably, Childress-Beatty's statement was not based entirely on statements about insufficient evidence. She was concluding in this statement that a psychologist may be able to ethically recommend that a detainee outside the criminal justice system be deprived of sleep or food for the purpose of trying to conduct an effective interrogation. Clearly, the effect of, for instance, sleep deprivation depends on the amount of time involved. But the fact that it might ever be considered ethical for psychologists to recommend sleep deprivation against detainees in this situation is a very notable ethical conclusion by the APA Ethics Office and the Ethics Committee Chair who agreed with the recommendation to close the matter. Certainly, it is not a conclusion that we are aware APA has ever admitted making, either in the explanation to the complainant for closing the Leso matter or its public statements. In effect, the only way for APA to close this case using the Rules was to call interrogation techniques "potentially ethical" in light of APA's supposedly vague ethical standards, when almost all APA's post-PENS statements stressed that its ethical standards (including PENS, according to Behnke) were strict and would clearly prohibit such techniques.

In short, while publicly proclaiming the strictness of their rules and their eagerness to thoroughly investigate complaints of abusive interrogations, behind closed doors, the Ethics Office crafted rationales that stressed the vagueness of their ethical standards and the highly restricted nature of their "investigations" in order to close complaints, all the while using a stretched interpretation of their procedural Rules.

The ability of the Ethics Office to conduct meaningful investigations into allegations against psychologists who allegedly participated in abusive interrogations has been further hindered by the actions of Behnke. The evidence shows that Behnke, at best, was resistant to proceeding with complaints against psychologists involved in interrogations, and, at worst, took affirmative steps to avoid presenting these cases to the full Ethics Committee. For instance, when former APA President, Ron Levant, inquired into whether an ethics investigation should be opened against Leso based on allegations against him in the media in 2005, Behnke stated blatantly, and falsely, that Leso was not an APA member. The ethics complaints filed against Michael Gelles and James Mitchell illustrate this resistance even more clearly. The complaint against Gelles alleged that he behaved unethically during a session with a Naval Petty Officer under investigation for espionage. The email evidence shows that Behnke actively looked for ways to avoid proceeding with the complaint and suggested ways to avoid presenting the complaint to the full Ethics Committee. In fact, Sidley uncovered evidence that suggests that Mel Gravitz, an influential APA member, approached Behnke and tried to dissuade him from moving forward with the Gelles ethics complaint. This was corroborated by Behnke. And despite telling Sidley that he was not improperly influenced by Gravitz, emails from Behnke's custodial files show that he actively interfered with the Ethics Office investigator's work, deputized himself as the investigator while she was on administrative leave, and tried to stop the case from proceeding.

The complaint filed in 2005 against Mitchell–while he was still an APA member–was based on allegations from news reports that psychologists, including Mitchell suggested the use of harsh interrogation techniques during the interrogation of detainees. The evidence shows that the complainant contacted the Ethics Office several times prior to filing her complaint against Mitchell and that each time Behnke or an Ethics Office staff member discouraged her from filing the complaint. When the Ethics Office received the compliant, a staff member conducted a search to determine whether James Mitchell was a member and thus whether the office had jurisdiction over the complaint. The search showed that three individuals named "James Mitchell" were APA members but no steps were taken to determine whether any of the individuals named "James Mitchell" was the James Mitchell identified in news articles. Nor were any other investigative steps taken in connection with the complaint against Mitchell. If additional steps had been taken, the Ethics Office would have learned that one of the three individuals was, in fact, the James Mitchell identified in news articles–articles that reported Mitchell had suggested the use of harsh interrogation techniques. Instead, the Ethics Office failed to take any action on the complaint–and Mitchell resigned from APA nine months later while the complaint was pending.

Despite his actions and resistance to proceeding with complaints against psychologists who allegedly participated in abusive interrogations, Behnke made numerous statements touting APA's willingness to take action against these psychologists. The evidence shows that these statements–strategically made in order to make it appear that APA stood ready to vigorously investigate ethical complaints in this area and would take strong affirmative steps to dig out the truth–were disingenuous and misleading. During the time that these ethics complaints were pending, Behnke said:

    If psychologists have engaged in any activity, and at this point the media reports are long on hearsay and innuendo, short on facts, the [APA] wants the facts. And when we have the facts, we will act on them. And if individuals who are members of our association have acted inappropriately, the APA will address those very directly and very clearly; |29|

    I would say that for us, the question is not whether psychologists may be involved. We believe that there is an ethical role for psychologists to play. The question is '[w]hat are the ethical boundaries within which psychologists must remain when they are engaged in these activities?' Certainly, if it is the case that individuals have behaved unethically, the American Psychological Association has an ethics committee that will respond to that situation through our process of adjudication; |30|

    APA will adjudicate any allegation that an APA member has engaged in unethical conduct. If you have information that a psychologist has engaged in torture, I ask that you immediately bring this information to my attention; |31|

    [the Ethics Office] thoroughly investigate[s] the complaint under a set of extensive procedures that apply to all complainants and to all psychologists who are subjects of a complaint; |32|

    [a]ny psychologist participation in a torture interrogation is absolutely prohibited. It makes no difference whether the psychologist's participation is direct or indirect, supervisory, central or peripheral: Any psychologist participation in a torture interrogation is prohibited. |33|

The reality diverged greatly from these statements. Instead of "thoroughly investigat[ing]" allegations that member psychologists had behaved unethically or participated in torture, Behnke failed to proceed with and actively resisted proceeding with these complaints. The evidence shows that Behnke knew that the adjudications process was not equipped to address ethical complaints regarding psychologists' participation in interrogations–and that it would not lead to any sort of meaningful or thorough investigation.

The end result of the limited nature of the ethics investigations and the Ethics Office's purposeful unwillingness to thoroughly investigate allegations of unethical conduct by psychologists who participated in interrogations was that the Ethics Office prioritized the protection of psychologists–even those who might have engaged in unethical behavior–above the protection of the public.


IV. ANSWERS TO THE QUESTIONS POSED BY THE CHARGE

The Board of Directors' resolution asks us to report as to whether APA "colluded" with government officials "to support torture." As we embarked on our review, some APA critics expressed concern that our charge was too narrow. These critics thought that the charge, as set forth in the Board's statement, would place limits on our ability to thoroughly investigate relevant issues not specifically set forth in the charge, and was intentionally designed to lead to a "no" answer, since in their view it would be very unlikely that one would be able to establish that APA officials intended to help the government torture people. We understood this concern given the language used to define our charge, and we saw how the charge could be narrowly construed.

In contrast, some of the APA officials we interviewed have stressed for us their view that we could only reach some sort of negative finding if we concluded that APA engaged in collusion "to support torture." And some put definitions of "collusion" in front of us to purportedly show its narrow contours. One APA staff member sought to narrow the scope of our review by "confirming that] the scope" of our review was defined by "three essential elements of the review: . . . 1) collusion, that is, a mutually agree upon plan of action; 2) with the Bush administration; and 3) the intended goal of advancing the Bush administration torture program." Approaching the review with these constraints would have meant that finding collusion between APA and government officials or collusion for any goal other than intentionally advancing the effort to torture people would have been outside the scope of our review.

The Special Committee rejected a narrow view of our scope and told us to understand our charge broadly, so that the scope of our review included a review of the issues specifically identified in the Board's statement, the relevant issues in Risen's book, and critics' allegations regarding the changes to APA policies and the driving forces behind those changes. The Special Committee explained that the goal was a thorough review of these issues and all the available evidence so that our report could set out our full understanding of what happened and why.

Nevertheless, we are called upon to answer the question whether APA colluded with government officials to support torture, as well as three sub-questions set out in the Board's resolution: (1) "whether APA supported the development or implementation of enhanced interrogation techniques that constituted torture"; (2) whether changes to Ethics Code Section 1.02 or the formation and/or the report of the PENS Task Force "were the product of collusion with the government to support torture or intended to support torture; and (3) "whether any APA action related to torture was improperly influenced by government-related financial considerations," including grants, contracts, or prescription-privileges policy for military psychologists.

Collusion

With regard to the PENS Task Force and subsequent policy statements and decisions by APA, there clearly was collusion between key APA officials who were acting on behalf of APA and key DoD officials. We have seen various definitions of "collusion," but common ones define it as a secret agreement, understanding, or cooperation for some harmful, improper, dishonest, or illegal purpose. (In emails to us, Behnke defined "collusion" more broadly, as a "mutually agreed upon plan of action".) In our description above, we have intentionally used terms such as coordination, collaboration, and joint venture, which we believe capture what occurred. And we conclude that the evidence also shows that this constituted collusion.

The collusion here was, at the least, to adopt and maintain APA ethics policies that were not more restrictive than the guidelines that key DoD officials wanted, and that were as closely aligned as possible with DoD policies, guidelines, practices, or preferences, as articulated to APA by these DoD officials. The existence and nature of this collaboration was kept confidential outside of those APA officials who worked with Behnke and others on the PENS Task Force and related matters. And this purpose could easily be described as improper or dishonest, because it constituted the development, implementation and maintenance of APA ethics policy not based solely on an independent judgment of what policy was best for APA, but in very substantial part based on what policy was best for DoD.

One might say that APA was effectively making a policy judgment that what was best for DoD was best for APA, but APA certainly did not claim that this was the policy judgment it was making. This behind-the-scenes sacrifice of APA independence largely in order to pursue and maintain policies that were pleasing to and requested by DoD officials constitutes collusion, in our view.

We are asked whether this constituted collusion "to support torture." One potentially straightforward answer is that since the PENS report said clearly that no psychologist could ethically be involved in torture, APA could not possibly have acted or intended to support torture. But this is probably too simplistic an answer since, as discussed above, the artificially narrow Justice Department definition of "torture" (known to APA and the public) meant that at the time, a mere statement prohibiting "torture" did not necessarily prohibit acts that would properly be considered torture at most other times.

We think the evidence clearly shows that the key APA officials acting on behalf of APA intentionally implemented a policy that would allow DoD officials to continue to engage in their existing practices based on the guidelines and procedures they had in place. At a minimum, this was the purpose of the collusion. The question then arises, what did APA know about or believe regarding DoD's existing interrogation practices in which psychologists might be involved?

APA's Knowledge

As summarized above and detailed further in this report, there were clear and strong indications in front of APA officials that abusive interrogation techniques (such as stress positions, sleep deprivation, threats, and playing on phobias) had occurred. There had even been substantial public reporting and congressional inquiry on about the apparent (at the time) waterboarding of two "high-value" detainees. In short, by June 2005, it would have been clear to all well-informed observers that abusive interrogation techniques had almost certainly occurred and that there was a substantial risk they were still occurring.

It is true that Banks and some of the other DoD psychologists on the PENS Task Force said that psychologists were present for interrogations in order to make them safer, by using their expertise in human behavior to watch the interrogators and stop them if they began engaging in abusive activity as a result of so-called "behavioral drift." Under this explanation, involving psychologists in interrogations would be a positive factor, and therefore the APA's actions to adopt and maintain the PENS Task Force report as policy could not be called an attempt to support torture.

But Banks and the others also believed that psychologists had an important role to play in helping to make interrogations "effective" by, among other things, making suggestions and recommendations to the interrogators about how to proceed. Were these suggestions and recommendations to be limited to ways of asking questions or building rapport? Not necessarily, say Banks and the others. Stress positions or sleep deprivation, for instance, might be appropriate techniques under some circumstances, depending on the nature of the stress positions and sleep deprivation, they say. Banks told us that a six-week training course started in 2006 for interrogators was needed to understand how to make these decisions, but once so trained, interrogators and psychologists could make the decisions appropriately in a manner that was "safe, legal, ethical and effective." For instance, Banks told us that a "stress position" with a detainee hanging from the ceiling with his head down would not pass this test because it would not be safe, but a "stress position" in which a detainee was in the "push-up position" might pass this test. The ethics guidelines in the PENS Task Force report allow a psychologist to consult regarding an interrogation and help make it effective, although not regarding "torture or cruel, inhuman or degrading treatment." Yet at the time of PENS, neither Banks nor the other DoD psychologists were willing to list stress positions or sleep deprivation as techniques that automatically fell within those definitions. And Banks was unwilling to do so ten years later when we spoke with him.

Thus, there were clear signs from the PENS Task Force meeting that DoD officials believed that some of the "enhanced" interrogation techniques specifically described in the media were not prohibited by the ethical guidelines in PENS. This in turn would have suggested at the time that DoD may well have considered these techniques proper in some circumstances and may well have been utilizing them. When combined with the private statements to Behnke and others APA by CIA and DoD officials, and the widespread and powerful public reporting about the apparent interrogation abuse, including numerous and corroborating quotes from government officials and the Red Cross, there were very strong reasons to be concerned that abusive interrogation techniques had occurred in the past and that there was a substantial risk that they were continuing.

We have not seen evidence that Behnke or the other key APA officials knew definitively that enhanced interrogation techniques were occurring at Guantanamo at the time of PENS. But it is also clear that they made an intentional effort not to dig into these concerns and allegations to try to determine whether they had occurred or were still occurring. Some of the key DoD officials on the task force, principally Banks and Larry James, as well as Dunivin, were assuring the key APA officials that past abuses had been stopped and the problem had been solved by deploying better personnel and by ensuring that psychologists were present to stop behavioral drift. But apart from these strong but self-serving and uncorroborated assurances, the APA officials did not seek information to determine whether abusive techniques were still occurring or were likely to occur in the future. Instead, they discussed internally their desire to be "forward-looking" and supportive of military psychologists, and not to look backwards and make accusations about psychologists. They therefore intentionally did make any effort to seek out more information that might corroborate or contradict the DoD assurances, strategically emphasizing that they were unlikely to get definitive details regarding potential interrogation abuses because the information would be classified.

"Deliberate avoidance"

In this situation in a criminal case, one would ask whether this intentional decision not to seek more information constituted "willful blindness" or "deliberate avoidance," such that a jury instruction known as the "ostrich instruction" would be appropriate. A typical version of this instruction says that a defendant acted "knowingly" if he had a strong suspicion that a certain factual claim or statement was true and deliberately avoided learning the truth. One common legal definition of "deliberate avoidance" in this context is "cutting off one's curiosity through an effort of the will."

On the one hand, this fits the facts at hand. The approach that Behnke and Koocher (principally) recommended and that APA took was to deliberately avoid probing or inquiring into the widespread indications that had surfaced about harsh interrogation techniques being conducted by the CIA and DoD, even though they knew that psychologists were involved in CIA and DoD interrogations. And by June 2005, the media reports combined with the statements that had been made to Behnke and others at APA by CIA and DoD officials would have made anyone suspicious, and probably strongly suspicious, that some of these allegations were true. In addition, if one compared the reports of harsh interrogation techniques to internationally-accepted definitions of torture, such as in the UN Convention Against Torture, rather than the bizarrely narrow definitions set out by the Justice Department in its memos, one would have been suspicious that some of the harsh interrogation techniques allegedly being conducted by the CIA and DoD constituted torture.

On the other hand, Behnke, Koocher and others at APA insisted that it would have been impossible to determine definitively whether these allegations were true, because the information relating to the interrogation programs and the specific interrogations was classified. It is very likely true that information about specific interrogations was classified. However, it is notable that APA did not make any effort in this regard. And given their contacts in the CIA and DoD, they may well have been able to learn some significant information that would have helped them assess the likelihood that the problem had occurred or was still occurring, and the risk that it would occur in the future. But it is also appropriate to note that this is not the typical "deliberate avoidance" situation in which an individual could likely have learned the relevant knowledge by asking questions of people he had access to. Here, there was both a deliberate and strategic attempt not to inquire, and an accurate (albeit strategically convenient) claim that gathering full information would have been extremely difficult in light of the classified nature of the underlying activities.

Purpose of the collusion

Thus, even after considering how the equivalent of an "ostrich instruction" might apply in the context of this independent investigation, we think it would be difficult to conclude based on the evidence we have seen that APA officials actually knew in 2005 that CIA or DoD psychologists were participating in "torture", even as properly defined. We therefore cannot conclude that the collusion between APA officials and DoD officials was done with the actual intent "to support torture." A more accurate description is that the collusion was done to support the implementation by DoD of the interrogation techniques DoD wanted to implement, without substantial constraints from APA; with knowledge that there likely had been abusive interrogation techniques used and that there remained a substantial risk that without strict constraints, such abusive interrogation techniques would continue; and with substantial indifference to the actual facts regarding the potential for ongoing abusive interrogation techniques. The collusion relating to PENS and the post-PENS period–and the actions in protecting national security psychologists from disciplinary sanctio–reflects a clear intent to take actions in order to please and curry favor with DoD.

Despite the critics' concerns about the narrowness of the question asked, we are confident that APA will take no satisfaction from our answer in light of our other conclusions.

The APA Board also asked three sub-questions. The first sub-question was whether APA "supported the development or implementation of enhanced interrogation techniques that constituted torture." The discussion above largely answers this question. Further, the APA officials who led the PENS Task Force process pursued an ethics policy that intentionally sought to please DoD and not place specific ethical constraints on it beyond the general formulations DoD was comfortable with. The position was intentionally pursued to allow DoD to have discretion, subject to its own internal constraints, to determine what interrogation techniques to pursue under the individual circumstances. These APA officials took this position while intentionally avoiding an effort to gather information about whether "enhanced" interrogation techniques were still occurring–although they would have had every reason to believe that stress positions and sleep deprivation (among others) were still being used at the time of PENS because of the reluctance of Banks and other DoD officials to declare them prohibited. We would not call this "supporting the implementation of enhanced interrogation techniques," but we would say this was supporting the implementation by DoD of the interrogation techniques it wanted to implement, without substantial constraints from APA, and with knowledge that there likely had been abusive interrogation techniques used, and there remained a substantial risk that without strict constraints, such abusive interrogation techniques would continue.

The second sub-question asks whether changes to Section 1.02 of the Ethics Code or the formation and/or the report of the PENS Task Force were the product of collusion with the government to support torture or intended to support torture. The answer regarding PENS was just covered in the preceding discussion, and the answer regarding Section 1.02 is no, as set out above.

The third sub-question was "whether any APA action related to torture was improperly influenced by government-related financial considerations," including grants, contracts, or prescription-privileges policy for military psychologists. As described above, the substantial financial benefits in the form of employment, grants and contracts that DoD provided to psychologists around the country had a strong influence on APA's actions relating to the PENS Task Force (and therefore "relating to torture"), since preserving and improving APA's relationship with DoD (including the benefits to psychology that flowed from it) formed an important part of the motive behind APA's actions. We did not find that APA was motivated by a specific contract or grant, or that APA itself actually received any substantial grants, contracts, or other payments from DoD during this period. The financial motivations for APA related to the substantial benefits that flowed from DoD to the profession of psychology.

As for the prescription-privileges program, we found that APA believed that this program had provided a very substantial benefit to psychology and APA, because obtaining prescription privileges in order to better compete with psychiatry was one of APA's leading priorities for many years. DoD's "demonstration project," created in 1991 and in place through 1997, which was initiated principally by Pat DeLeon (APA President in 2000) and his boss, Senator Daniel Inouye (D-HI) and his Chief of Staff, psychologist Pat DeLeon (APA President in 2000), allowed psychologists to have prescribing privileges in DoD and other federal locations, and created a two-year certification program that could be recognized by a state that authorized properly-certified psychologists to have prescription privileges like psychiatrists. Approximately ten psychologists were trained and certified through the DoD demonstration project, including Debra Dunivin. The demonstration project thus served a crucial unlocking function for psychology and APA, since it established the legitimacy of a prescription-training program outside of traditional medical school, thus providing a strong answer to the traditional critique from psychiatrists that the only way to be trained in prescribing psychiatric medication was to graduate from a traditional four-year medical school.

We do not believe that by 2005, APA officials were realistically seeking or expecting anything further from DoD on the topic of prescription privileges. Nor do we believe that APA officials actually worried that a failure to curry favor with DoD would cause DoD to reverse course on prescription privileges by, for instance, disallowing previously-certified psychologists from continuing to prescribe medication when they treated DoD personnel. Thus, we do not believe that the prescription-privileges issue was a significant "financial consideration" for APA in taking the actions it took in 2005.

Nevertheless, it is clear to us that the way in which DoD had supported psychology in crucial ways in the prior years, including through the prescription-privileges program, played a fundamental role in APA feeling motivated to curry favor with DoD. This was less a function of APA seeking something concrete with regard to a specific contract or program (like prescription privileges), but more a function of APA knowing very concretely how willing and able DoD was to provide large-scale support to psychology as a profession–now and perhaps in the future in unknown ways. This was support that APA did not want to risk jeopardizing by taking a position that was at odds with what APA perceived as DoD's clearly stated preferences within the PENS process.


V. CONCLUDING COMMENTS

Through their training and experience, psychologists possess a special skill regarding how our mind and emotions work–a special skill that presumably allows psychologists to be particularly good at healing damaged psyches. As with others who possess a special skill, psychologists therefore have an enhanced ability to cause harm to the psyche as well.

One of the leading principles of the APA Ethics Code tells psychologists to "do no harm." But sometimes psychologists engage in legitimate acts that cause anxiety in a patient, or contribute to negative lawful consequences for a criminal defendant or employee if their client is a law enforcement agency or a company.

Our review has involved a very different situation–a psychologist using his or her special skill to intentionally cause psychological (or physical) pain or harm to an individual who is not the psychologist's client, who is in custody, and who is outside the protection of the criminal justice system.

By explicitly declaring it ethical for psychologists to be involved in interrogations of detainees in DoD or CIA custody, while not setting strict and explicit limits on a psychologist's involvement in the intentional infliction of psychological or physical pain in these situations, APA officials were intentionally setting up loose and porous constraints, not tight ones, on this particular use of a psychologist's skill. This was especially true in the context of the time, which included (i) the government's known legal contortions that sliced the definition of torture down to a fragment, (ii) the widespread and credible claims that this kind of abuse had occurred, and (iii) the existence of a large loophole in the Ethics Code that allowed CIA and DoD psychologists to follow explicitly unethical orders and still be considered ethical as long as they tried to "resolve" the conflict.

Adding to this system of porous constraints was the "third-party beneficience" rationalization articulated by psychologists ranging from Jim Mitchell to Gerald Koocher, which posited that harm to one individual (a detainee) must be weighed against the benefits to third parties (the public) that would result if, for instance, information from the detainee stopped a terrorist attack. Those taking this position would argue that strict ethical constraints on psychologists in this situation would therefore be inappropriate. But even if, for the sake of argument, one accepts the legitimacy of this subjective harm-balancing rationale, it is notable that no limits whatsoever were placed on it, meaning that it provided another gaping hole in the already porous wall of ethical and legal constraints that might have prohibited intentional harm to detainees.

We have heard from psychologists who treat patients for a living that they feel physically sick when they think about the involvement of psychologists intentionally using harsh interrogation techniques. This is the perspective of psychologists who use their training and skill to peer into the damaged and fragile psyches of their patients, to understand and empathize with the intensity of psychological pain in an effort to heal it. The prospect of a member of their profession using that same training and skill to intentionally cause psychological or physical harm to a detainee sickens them. We find that perspective understandable.

We assume that some of the detainees were hardened members of sophisticated terrorist organizations, were well trained to resist interrogations, and had knowledge that would have been relevant to efforts to prevent future terrorist attacks. This creates a dilemma for military and intelligence policymakers who see this resistance as a successful barrier to obtaining information that might protect the public.

But this is not the first time in the history of warfare that this dynamic has occurred, as eloquently stated by an unknown military officer who was part of a DoD email exchange in August 2003 between military intelligence officers. The email recipients were asked for recommendations about interrogation techniques because "the gloves are coming off regarding these detainees." After one recipient suggested some "harsher" techniques and commented that "fear of dogs and snakes appear to work nicely," the unknown officer (whose name has been redacted) wrote:

    We need to take a deep breath and remember who we are. Those "gloves" are . . . based on clearly established standards of international law to which we are signatories and in part the originators. Those in turn derive from practices commonly accepted as morally correct, the so-called "usages of war." It comes down to standards of right and wrong - something we cannot just put aside when we find it inconvenient . . . . [W]e have taken casualties in every war we have ever fought - that is part of the very nature of war. We also inflict casualties, generally many more than we take. That in no way justifies letting go of our standards. We have NEVER considered our enemies justified in doing such things to us. . . . BOTTOM LINE: We are American soldiers, heirs of a long tradition of staying on the high ground. We need to stay there.

This debate played out intensely within the Bush Administration. But however our government defined and will define the nation's position in this debate - as the decades proceed and as administrations and foreign policies and world conflicts change - the profession of psychology must also define for itself whether it is ethical and legitimate for psychologists to use their special skill to intentionally inflict psychological or physical harm on individuals, especially those in captivity outside the criminal justice system.

APA officials made such a decision in 2005. Their decision was to keep the limits on this behavior loose and high-level. This was apparent to many from the words of the PENS report. APA claimed that its PENS-based policy placed tight anti-torture limits on psychologists, but the APA critics saw the statements as misleading and disingenuous.

Our investigation determined that on this point, the critics' understanding of the PENS report and process was correct. And our investigation determined that keeping the limits loose and high-level was intentional, and was done in order to align APA and curry favor with the Defense Department, to create a good PR response, and to keep the growth of psychology unrestrained in this area.

Some of the subsequent efforts by APA representatives outside APA management to tighten the limits, and to make this type of intentional infliction of harm more difficult for psychologists to engage in, eventually succeeded, despite the confidential joint effort from APA and DoD officials to defeat these efforts. The APA ethics policy on this issue is thus very different today than it was in 2005.

Nevertheless, when we have heard some say that APA's current response to this issue will help define the meaning of psychology, we find it understandable. A profession that can salve our emotional traumas and help catch a criminal while promising to "do no harm" and to maintain "the highest standards of professional ethics and conduct" is a profession that society should trust and rely on. When that profession allows for the potential that psychologists will intentionally inflict pain on an individual with no ability to resist, regardless of the individual's background or motives, faith in the profession can diminish quickly. This is why many within the profession have been so upset about APA's ethics position on this issue in 2005, its tenacious resistance to changing it, and the lack of public statements acknowledging the true motivations behind APA's actions in 2005 and afterwards.

Witnesses have asked whether we would make specific recommendations at the end of our report, but APA has asked us not to do so, a request we do not see as problematic or unusual. In investigative-report situations, the investigators are often asked to report their conclusions about the evidence but to leave to management the issue of how to respond to any problems identified. It is the province of APA governance to decide on, and take responsibility for, the proper response here.

As APA governance considers what questions to address as part of this process, we note that our investigation has uncovered serious concerns about the ability of APA officials - and APA itself - to act independently from the presidential administration in power, and from powerful government agencies that provide the profession of psychology with very substantial benefits. And this is especially true of DoD. In some ways, DoD is like a rich, powerful uncle to APA, helping it in important ways throughout APA's life. Acting independently of a benefactor like this is difficult. But APA's bylaws demand that the Association not only "advance psychology as a . . . profession" but also "advance psychology . . . by the establishment and maintenance of the highest standards of professional ethics and conduct." One question that arises from this investigation is whether APA has taken sufficient steps to ensure that, as an organization, its commitment to the highest standards of ethical integrity is sufficiently strong and independent of powerful government benefactors.

As members of a different profession who have observed in this investigation the incredible intensity of the anger, personal attacks, and highly aggressive statements that have emanated from both sides of this debate, as well as the amount of energy that has been spent on this important issue for a decade, we hope that this report and APA's response will over time allow the profession as a whole to feel that APA has properly dealt with its actions in the past, that it has properly defined the ethical obligations of psychologists on this issue for the future, and that vigorous discussions on this topic can occur in a culture of civility and mutual respect. We say this with tremendous respect for a profession we now know fairly well, and whose strength and integrity is of crucial and expanding importance to the well-being of our society.

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BACKGROUND: PSYCHOLOGISTS & NATIONAL SECURITY

I. THE EARLY HISTORY OF PSYCHOLOGY

Psychology began to be recognized as an independent scientific discipline in the 19th century; prior to that, it was generally considered a branch of philosophy. |34| Beginning in the 1860s, German scientists including Gustav Theodor Fechner and Wilhelm Wundt, demonstrated that the experimental scientific method could be applied to answer certain psychological questions. |35| Courses in experimental psychology were first offered in the United States in the 1870s, and by the end of the century, several psychological research laboratories had been established at American institutions of higher education, including Johns Hopkins and Harvard. |36|

Reflecting its evolution from experimental science, psychological work in the United States in the 19th century was primarily focused on research, not treatment. That focus was broadened in 1896, with Lightner Witmer's founding of the world's first psychological clinic at the University of Pennsylvania. |37| This clinic, which focused primarily on the treatment of children, became the prototype for other clinics, which were primarily located in universities; consequently, Witmer is generally recognized as the founder of clinical psychology. |38| Witmer believed that the relatively young field of psychology could be of immediate practical benefit to individuals, and wrote that his goal was "to make his scientific knowledge as great a benefit as possible to humanity." |39|


II. THE WORLD WARS

A. World War I

On April 6, 1917, the day Congress declared war on the German Empire, APA President Robert Yerkes convened a meeting of a group of psychologists to discuss how psychology could assist in the war effort. |40| On April 21, a special meeting of APA's Council established twelve committees to assist the government in addressing psychological problems, including committees on "the psychological examination of recruits," "psychological problems of incapacity, including those of shell shock," and "recreation in the army and navy." |41|

One of the largest endeavors undertaken with the assistance of psychologists in support of the war effort involved the administration of tests to assess potential recruits. Before and during the First World War, the U.S. Army administered a battery of tests similar to the Binet-Simon intelligence scale to more than 1.7 million recruits to attempt to differentiate between potential recruits who were unsuitable for service, those who would be suitable privates, and those who could serve as officers. |42| These tests constituted the first widespread attempt to survey the intelligence of the population of the United States. |43| As part of the effort, the Army established a Division of Psychology and a School for Military Psychology at its medical officers' training camp. |44|

APA President Yerkes personally oversaw and directed the psychological examination effort as a major in the Sanitary Corps of the U.S. Army. |45| During the war, Yerkes also served as chairman of the Psychology Committee of the National Research Council, |46| which operated during the war as the Department of Science and Research of the Council of National Defense and as the Science and Research Division of the U.S. Signal Corps, and received substantial support from the U.S. government. |47|

B. World War II

During the Second World War, the effort to assess potential recruits expanded and, by 1945, more than 13 million people had been screened. |48| Military psychologists also developed tests that were designed to identify promising candidates for specialized jobs. One such test was the Air-Crew Classification Test Battery, which was administered to over 600,000 men to identify potential pilots and navigators. |49| Psychologists also provided therapeutic services to soldiers during the war, during which over 500 psychologists served in uniform. |50|

A number of prominent psychologists also developed an intensive program designed to assess the suitability of a candidate seeking to serve in the Office of Strategic Services ("OSS"), which had been established by President Roosevelt as the agency responsible for intelligence collection, espionage, subversion and psychological warfare. Prior to the establishment of this three-day assessment program, many OSS agents who deployed overseas encountered difficulties coping with the stress and hazards of their missions; after the assessment program was established, the rate of reported problems related to stress fell dramatically. |51|

Psychologists' participation in the war effort led directly to the creation of the modern APA. In the early years of its existence, APA was "essentially an organization of college teachers." |52| APA's constitution stated that its object "was the advancement of psychology as a science," but made no reference to promoting psychology as a profession. |53| In 1937, certain applied psychologists, frustrated by APA's focus on academia and by its failure to provide licensing and educational opportunities for applied psychologists, formed the American Association of Applied Psychologists ("AAAP"), which threatened to divorce psychology's research from its practice. |54| But opportunities from the government provided by the war led to unity among psychologists.

In 1940, after the outbreak of the war in Europe and Asia, the National Research Council sponsored a conference on psychology and government service which was attended by representatives from both APA and AAAP, as well as smaller organizations of psychologists. |55| Representatives at the conference unanimously decided to establish a central coordinating group called the Emergency Committee in Psychology, which became a "virtual war cabinet for psychology and sponsored and coordinated the varied activities of psychologists in the military services, government agencies, and volunteer organizations," in which members of the various organizations of psychologists worked collaboratively in a common enterprise. |56| Robert Yerkes, the former APA president who had taken an active role in the mobilization of psychologists during the First World War, was a member of the Emergency Committee.

Under the Emergency Committee's authority, Yerkes convened a week-long conference in 1942 to discuss long-range planning in psychology. |57| The conferees proposed creating a "central American institute of psychology . . . to provide professional services of personnel, placement, public relations, publicity and publication" and further proposed a convention among the psychology organizations to discuss the proposal. |58| That convention began on May 29, 1943, and by May 31, agreement had been reached to merge AAAP into APA and to redefine the mission of APA as advancing psychology as a science "and as a means of promoting human welfare." |59| APA and AAAP officially approved the proposal the following year, and the new unified APA began operations on September 6, 1945. |60| The unification proved successful, and in the decade following the war, APA grew from approximately 4,000 members to 14,000 members. |61|

In the 30 years that followed World War II, the federal government spent over $1.2 billion to fund psychological research, and much of this research was funded through the military services. |62|


III. PSYCHOLOGY AND NATIONAL SECURITY DURING THE COLD WAR

A. The CIA

After World War II, the OSS was disbanded and its intelligence functions were transferred to the Central Intelligence Agency ("CIA"), created in 1947. From its inception, the CIA took an interest in psychological research, including research into possible mind-control techniques and methods by which deception could be detected.

In the 1930s and 1940s, the Soviet Union and its satellites staged a series of show trials in which prominent individuals publicly confessed to improbable crimes. |63| The 1949 show trial of Hungarian Cardinal Jozsef Mindszenty was particularly concerning to CIA leadership and prominent psychologists working on intelligence issues. In a 1949 study for the Air Force, Yale psychologist Irving Janis argued that the transformation of Cardinal Mindszenty, previously known for his "intransigent moral stamina," into a man who confessed to treason "in a kind of monotonous mechanical chant," was the result of "a series of electroshock convulsions . . . being administered . . . to reduce resistance to hypnotic suggestion." |64| Similarly, a CIA memorandum commenting on the trial argued that "some unknown force" had been brought to bear on the Cardinal, and suggested that hypnosis had been used on him. |65| A 1950 CIA analysis of the Soviet show trials of the 1930s concluded that the defendants' public confessions could not have been coerced by physical torture, and argued that they had instead been elicited using psychosurgery, electroshock, or psychoanalytic methods. |66| In 1952, several American pilots shot down in the Korean War and captured by Communist forces made false recorded confessions that they had dropped bombs filled with germs on civilian populations. |67| By 1953, CIA Director Allen Dulles publicly warned that the Soviet Union used drugs and electroshock to deprive individuals of the ability to state their own thoughts. |68|

Concerned that Communist countries would develop a weapon that the United States could not match, the CIA undertook a decade-long program of psychological research into potential mind control and interrogation techniques that cost several billion dollars. |69| In his 1949 report, Janis proposed that the intelligence community undertake a "systematic investigation" of potential mind-control techniques, including drugs and electroshock treatments. |70| The following year, the CIA began a project to investigate "the possibility of control of an individual by application of special interrogation techniques" and "offensive uses of unconventional interrogation techniques, including hypnosis and drugs," called Project Bluebird. |71| In 1952, the CIA began another project, codenamed Artichoke, to investigate "the application of tested psychiatric and psychological techniques including the use of hypnosis in conjunction with drugs" to attempt to improve interrogation techniques. |72| And in 1953, the CIA unified both projects under the aegis of a third project called MKUltra. |73|

These projects funneled substantial funding to nongovernmental researchers, including psychologists. In 1950, the CIA funded a contract for $300,000 to a department of psychology at an unnamed university, funneling the money through the Office of Naval Research. |74| Over the following two years, the Office of Naval Research funded 117 contracts at fifty-eight universities under its Psychological Sciences research program. Between 1953 and 1963, the CIA "dispensed $25 million for human experiments by 185 nongovernmental researchers at eighty institutions, including forty-four universities and twelve hospitals," including the Boston Psychopathic, Mt. Sinai, and Columbia University hospitals, which conducted experiments using LSD. |75|

These contracts, which were routinely routed through other federal agencies and organizations, funded the work of important psychologists. For instance, Professor Charles Osgood wrote to the CIA seeking its support for his research concerning cultural differences. Shortly thereafter, in 1959, the "Human Ecology Society," which was a conduit of CIA funds, provided a grant to Osgood in the amount of $192,975. These funds allowed Osgood to create the most important work of his career, and in 1963, he was elected president of APA. |76| The Human Ecology Society also made grants to B.F. Skinner, Carl Rogers, and Martin Orne. |77|

The MKUltra program was suspended in 1963, but the information the CIA learned as part of the program was synthesized in an interrogation handbook referred to as the "Kubark Manual." |78| The Kubark Manual, which has been declassified, describes itself as "based largely upon the published results of extensive research, including scientific inquiries conducted by specialists" and states that "sound interrogation" rests "on certain broad principles, chiefly psychological, which are not hard to understand." |79| It sets forth procedures to be followed when interrogators decide that "bodily harm is to be inflicted" or "medical, chemical, or electrical methods or materials are to be used to induce acquiescence." |80| It includes extended discussions of the circumstances under which infliction of pain, hypnosis, or surreptitious administration of narcotics may assist in an interrogation. |81| The manual also quotes extensively from prominent psychologists, including Martin Orne, Margaret Brenman, and Malcolm Meltzer, |82| and includes an extensive bibliography, which cites numerous published and unpublished psychological studies, including several funded by the CIA. |83|

The Kubark Manual was used as the basis for an interrogation training program for CIA agents. CIA agents taking part in the program played the roles of both interrogators and captives, and those playing captives were subjected to harsh treatment, including sleep deprivation, unappetizing food, isolation, mock executions, and placement in uncomfortable physical conditions for long periods of time. |84| This program ran for approximately a decade before ending in the mid-1970s.

The practices set forth in the Kubark Manual were also used operationally. For approximately 30 years following the creation of the Kubark Manual, the CIA disseminated its interrogation methods to military and police organizations around the world. |85| From 1962 to 1974, the CIA worked through the U.S. Agency for International Development to train more than one million policemen in 47 nations; after 1971, the CIA also disseminated these tactics through the U.S. Army's Military Advisor Program. |86|

B. The U.S. Military

Psychology had a close relationship with the military throughout the Cold War. The G.I. Bill strengthened the profession of psychology both by expanding enrollments in institutions of higher education, which improved employment opportunities for academic psychologists, and by allowing some returning soldiers to train to become psychologists and join APA. |87| In 1950, the National Science Foundation was founded as a clearinghouse for government funding of research, and by 1952, it was funding psychological research. |88| Federal expenditures for psychological research rose from $10.2 million in 1953 to $23.9 million in 1958, and though the percentage of such funding provided by the military dropped throughout the period, it never fell below approximately 25%. |89|

The military also drove a major expansion in infrastructure supporting clinical psychology. By the end of the war, the military and the Veterans Administration had created a demand for psychologists to care for soldiers and veterans with mental and emotional problems that was difficult for the universities then training psychologists to meet. |90| Concerned that this demand would lead to unqualified or incompetent individuals being hired to provide mental health services, APA embarked on a major program to ensure the quality of psychological practice. |91| It established a program of board certification, implemented criteria for accreditation of programs providing graduate education in psychology, and organized efforts to license psychologists at the state level. |92|

Psychology had an important influence on the development of military doctrine regarding interrogations. Beginning in at least 1956, the military forbade the use of tactics it deemed coercive in interrogations. |93| The primary text on interrogation for the U.S. Military during the Cold War was the U.S. Army Field Manual 34-52, Intelligence Interrogation, which served as the guide to intelligence interrogations for all of the armed forces until it was replaced in 2006. |94| The manual describes 17 interrogation techniques that remained essentially unchanged for more than 50 years. |95| The manual incorporates psychological observations, such as that "[a]n individual's value system is easier to bypass immediately after undergoing a significant traumatic experience." |96| Noting that the "circumstances of capture are traumatic for most sources," the manual states that a person is vulnerable to interrogation immediately following capture, though it cautions that "this initial vulnerability passes quickly." |97| Thus the manual, while forbidding the coercive interrogation tactics discussed in the Kubark Manual, incorporates lessons learned from psychological research.

Psychologists were and are also involved in efforts to train American soldiers to resist interrogation. Following the "confessions" of American pilots shot down in the Korean War, the U.S. Air Force established a training program to assist soldiers captured by enemy forces to resist harsh treatment. |98| The U.S. Navy and Army did the same in the 1960s and 1980s, respectively. |99| These programs became known as "SERE" schools, as they teach skills related to "survival, evasion, resistance, and escape" by training soldiers in a simulated prisoner of war environment. Psychologists participate in the SERE schools in several capacities. They identify which applicants are likely to exhibit difficulties under stress, consult regarding the capacity of students who exhibit dissociation in response to the stress of training to continue with the program, and study the impact of stress on human cognition and perception. |100|


IV. PSYCHOLOGY AND THE MILITARY AFTER THE COLD WAR

A. Ties Between Psychologists and the Military

Following the fall of the Berlin Wall in 1989 and the dissolution of the Soviet Union in 1991, psychologists have continued to work closely with the United States military and related agencies. As of 2011, approximately 600 clinical psychologists were employed by the Army, |101| while the Navy employs approximately 130. |102| The number of psychologists employed by the Veterans Administration rose from approximately 1,500 in 2000 to nearly 3,400 in 2010, with the largest gains coming between 2006 and 2010. |103| The Army, Navy, and Air Force sponsor educational programs in psychology, including year-long clinical psychology internships and postdoctoral residency programs. |104| The military also makes substantial grants for psychological research. Between fiscal years 1994 and 2000, the U.S. Air Force, Army, and Navy spent over one billion dollars on research in the behavioral, cognitive, and social science fields, for an average of approximately 150 million dollars per year. |105| The funding level declined in the first decade of the 21st century, though it remained substantial. In fiscal year 2004, total DoD funding for behavioral and social sciences was $44.0 million; in 2005, $43.8 million; in 2006, $41.8 million; and in 2007, $37.6 million. |106| More recently, since fiscal year 2007, more than $730 million has been appropriated to the Department of Defense to fund research on psychological health, post-traumatic stress disorder, and traumatic brain injury. |107| While these research funds are distributed to researchers in a number of fields of inquiry, approximately $120 million in grants were awarded for research on the topic of behavioral, cognitive, and psychological therapies between fiscal year 2007 and fiscal year 2011. |108|

Within APA, there is a Society for Military Psychology, referred to as Division 19, which encourages research and the application of psychological research to military problems. |109| The Society disseminates psychological research of interest to the military community by publishing a quarterly journal, presents annual awards to students and psychologists, and organizes educational events. |110|

B. APA's 1991-2004 Ban on Military Advertising

In 1991, the APA enacted a resolution banning advertisements from the Department of Defense and its branches in APA publications, mailings using APA mailing lists, and literature distributed in APA meetings. |111| This ban was enacted in response to the Department of Defense's policy, then in effect, of refusing to admit bisexual, lesbian, or gay individuals to military service, and was maintained after the "Don't Ask, Don't Tell" policy was implemented in 1993.

Revoking the advertising ban was a long-term goal of APA's Division 19. In January 2003, members of Division 19 submitted a resolution to the APA Council of Representatives to rescind the ban. |112| The resolution was opposed by the APA's Society for the Psychological Study of Lesbian, Gay and Bisexual Issues, referred to as Division 44. |113| Despite its opposition to rescinding the ban, Division 44 proposed that a joint task force be formed between Division 19 and Division 44 to discuss issues surrounding gay, lesbian, and bisexual people serving in the armed forces. |114| Division 19 agreed to participate in the joint task force and recommended that the task force discuss several issues in addition to the advertising ban, including proposals that APA should (1) issue a statement condemning the "Don't Ask, Don't Tell" law as discriminatory, (2) initiate a campaign aimed at repeal of the law, and (3) identify psychologists who could assist DoD in developing programs to combat prejudice against gays and lesbians and to prevent problems from arising in the event that the "Don't Ask, Don't Tell" law was repealed. |115|

During the initial meeting of the task force in February 2003, both sides agreed that APA was not doing anything effective to address the issues faced by gays, lesbians, and bisexual people in the military. |116| In January 2004, the Joint Task Force issued its final report, which recommended that APA eliminate the prohibition on advertisements from the DoD, assess opportunities for advocacy to eliminate discrimination in the military based on sexual orientation, facilitate collection of data from military psychologists who are mental health providers about the implementation of the law on homosexuality in the armed services, and develop educational materials to improve the capacity of military psychologists to provide effective services. |117| The report noted that Debra Dunivin attended the task force meeting and consulted with the task force regarding the effect of the advertising ban. |118| It also noted that the task force consulted with Stephen Behnke regarding the ethical issues that might arise for military psychologists. |119| In July 2004, the APA Council of Representatives adopted the resolution proposed by the Joint Task Force, thus rescinding the ban on advertisements from DoD. |120|


V. PRESCRIPTIVE AUTHORITY

The U.S. military has provided critical support for psychologists' efforts to obtain authority to write prescriptions. In a 1984 speech to the Hawaii Psychological Association, then-Senator (and decorated World War II veteran) Daniel Inouye proposed that psychologists seek prescriptive authority to address shortages in qualified prescribers of medications to individuals who suffered from mental illness. In 1989, Congress appropriated funds for a pilot program to train psychologists serving in the Department of Defense to prescribe medication. |121| This program, which was called the Psychopharmacology Demonstration Project ("PDP"), was developed with direct input from APA staff, who served on a Department of Defense panel, to create its curriculum. |122|

In 1991, the PDP began with four participants. The initial curriculum involved two years of classroom training followed by an additional year of clinical training, though the curriculum was subsequently modified to remove one of the years of classroom training. |123| Over the six-year life of the program, from 1991 to 1997, ten prescribing psychologists completed the training and were granted authority to prescribe medications. |124| Of these, four served in the Navy, three in the Army, and three in the Air Force. |125|

In 1999, the U.S. General Accounting Office ("GAO") found that PDP graduates were well-integrated into the Military Health Service, that they held positions of responsibility and treated a broad spectrum of patients, carrying patient caseloads that were comparable to those of psychiatrists. It found that most of the graduates had been granted independent status, which allowed them to operate with only the same level of review as psychiatrists at their locations. |126| The GAO further found that the graduates were evaluated as good to excellent, both by their clinical supervisors, and an outside panel of psychiatrists and psychologists, and found no evidence of quality problems in their credential files. |127| However, the GAO also found that the PDP program was more costly than the Department of Defense's traditional mix of psychiatrists and non-prescribing psychologists, and stated that the impact of the program on combat readiness was minimal at best. |128|

Psychologists used the generally positive findings of the GAO report and other assessments of the PDP to support efforts to obtain prescriptive authority outside the military context, with sporadic success. In 1993, two years after the PDP began, Indiana amended its licensing law for psychologists to allow those participating in a "federal government sponsored training or treatment program" to prescribe medication. |129| This revision was made specifically to allow graduates of the PDP to prescribe medications in Indiana. |130| In 1996, the APA Council of Representatives formally adopted model legislation extending prescriptive authority to psychologists. |131| In 1999, Guam allowed psychologists to prescribe medications in collaboration with a physician. |132| New Mexico granted prescriptive authority to psychologists working in collaboration with the patient's primary care physician in 2002. |133| Louisiana followed shortly thereafter, enacting legislation in 2004 that allows psychologists to prescribe medication after consulting with the patient's physician. |134| And in 2014, Illinois authorized licensed psychologists with specialized training in psychopharmacology to prescribe certain medications for the treatment of mental health disorders. |135| Psychologists continue to lobby state legislatures to grant them prescriptive authority.

At the federal level, psychologists are permitted to prescribe medications in the three branches of the military that provide healthcare services, so long as they meet the standards set independently by each branch. |136| Military psychologists who prescribe medications include those trained in the PDP, as well as those who participated in a civilian program. |137| The number of military psychologists capable of prescribing medication has grown slowly since the conclusion of the PDP. |138| The Public Health Service Corps and the Indian Health Service (part of the U.S. Department of Health and Human Services) also permit psychologists to prescribe medication, though this permission is limited to those psychologists licensed to prescribe medications by their state of licensure. At present, therefore, only psychologists licensed in Louisiana, New Mexico, or Illinois may prescribe medications under these agencies' authorities.


THE 2002 ETHICS CODE REVISION |139|

I. BACKGROUND

A. Participants and Process

In 1996, the Ethics Committee appointed the Ethics Code Task Force ("ECTF") to revise the 1992 Ethics Code. |140| The ECTF was made up of 14 members who, according to Chair Celia Fisher, "reflected the scientific, educational, professional, gender, ethnic, and geographic diversity of the discipline." |141| The ECTF members included Celia Fisher (Chair), Peter Appleby, Bruce Bennett (APAIT liaison), Laura Brown, Linda Campbell (Council liaison), Nabil El-Ghoroury (APAGS liaison), Jessica Henderson Daniel, Samuel Knapp, Gerald Koocher (Board liaison), |142| Marcia Moody, Peter Nathan, Thomas Oakland, Mary Quigley (public member), Julia Ramos-Grenier, Abigail Sivan, Steven Sparta (Ethics Committee liaison), Elizabeth Swenson (Ethics Committee liaison), Melba Vasquez, and Brian Wilcox (Council liaison). |143|

Observers and monitors were also invited to attend and participate in ECTF meetings. Although most ECTF participants told Sidley they were particularly attentive and felt more strongly about the Ethics Code standards that pertained to their own area of expertise, observers and monitors in particular attended the meetings to represent whatever group or constituency had sent them with respect to the revision as a whole, and were present at their constituency's own cost. Over the six year period that the ECTF met, there were a number of monitors and observers who attended ECTF meetings, including: Lenore Walker (Division 42), Marty Williams (Division 42), Jean Carter (CAPP), Brent Slife, Stuart Pizer (Division 39), Larry Leitner, Stewart Cooper (Division 13), Deirdre Knapp (Division 14), and Richard Naugle (Division 40). APA staff, including Stanley Jones, Deborah Felder, Dolph Printz, and, as of the end of 2000, Stephen Behnke, also participated. Nathalie Gilfoyle served as counsel. |144|

Led by Fisher, the ECTF was "committed" to making the revisions an "open" and "collaborative" process. |145| To that end, after announcing the Code revision, the ECTF issued an open call for comments on the "adequacy of the 1992 Ethics Code" and the content and format of the draft Code revisions. The ECTF also sent out a survey to collect critical incidents from a broad range of psychologists describing ethical challenges they had faced, approaches to these challenges, and the extent to which the 1992 Ethics Code was applicable to these challenges. |146| The survey questions would also be published in the APA Monitor as an open call for comments to the membership. |147| Comments received in between meetings were distributed among the members as reference materials. |148| These comments were then logged into the comments database and coded according to categories that would help set the priority for discussion at the meetings. |149|

The ECTF met twice each year from 1998 to 2001, and once in 1997 and 2002. |150| During each meeting, the ECTF reviewed the full Ethics Code and discussed comments received in response to the critical incident survey, the open call to the membership, or, later on, to published draft codes. |151| The task force then revised ethical standards based on the comments received and discussion of those comments. |152| To effectuate revisions, APA staff would insert changes into a working document at the meeting so the attendees could see and comment on proposed changes in real time. |153| All meeting participants were given the opportunity to comment on proposed revisions. |154| Then members voted on proposed language. The ECTF rules for voting required that a successful vote carry two-thirds of the eligible votes cast. |155| Yet most participants could not recall the official voting requirements because almost all of the Ethics Code revisions were achieved by consensus, |156| which was the stated ideal way to resolve contested issues regarding the revision. |157| When the group could not reach consensus, Fisher tabled the conversation on that standard and took it up either later that same meeting or at the next meeting. |158| This process resulted in members and observers feeling that they had the opportunity to voice their opinions and that their voices were heard. Although not all ECTF members preferred the final version of every standard, ECTF members told Sidley that they felt the process achieved as much consensus as possible, and none could remember an instance where someone attempted to block passage of a revision that was supported by the majority. |159|

Although not all draft revisions were made public for comment, starting in 2000, drafts were typically published in the APA Monitor and made available on the APA website. |160| Comments on the draft revisions could be submitted in hard copy or electronically. |161| At least two members were assigned to review each comment, and Celia Fisher reviewed every comment received. |162|

Fisher was the clear leader of the ECTF: She set the agenda and led meeting discussions, and prior to every meeting, she distributed preparatory materials to members, including her notes and impressions regarding suggested changes. |163| Fisher reviewed every comment the ECTF received throughout the duration of the task force. |164| Between meetings, Fisher met with different interested constituents, such as members of Divisions 13 (Society of Consulting Psychology), 14 (Society for Industrial and Organizational Psychology), and 42 (Psychologists in Independent Practice), and spoke about the ECTF's mission and progress at APA events and to APA's governance. |165| With the exception of Fisher, no other ECTF members or observers played a lead role in the meetings or discussions. |166|

APA staff members assisted the ECTF with logistical and administrative tasks, for example by: reserving the meeting room; stocking the room with notepads, writing implements, and other materials; and taking notes during the meetings. |167| APA staff also participated in the meeting discussions and answered questions. |168| Questions regarding ethics were directed to Behnke while questions regarding adjudications were directed to Jones. |169| ECTF members told Sidley that none of the staff members took over the process or were overbearing in commentary or suggestions. |170| No one felt that any person or persons dominated the meetings, except for noting that Fisher was in charge of the revision process. |171|

B. Meeting Discussions

The tone of the meetings reflected a deep concern among psychologists that the Code was being used as a weapon against them to create liability in criminal, civil, and administrative proceedings. |172| Clinicians, forensic psychologists, military psychologists, and correctional psychologists were concerned with Code language that they thought could be seized on to create unwarranted liability for psychologists in a variety of circumstances.

The ECTF debated how to address this overarching concern. Some thought the Code should be strictly aspirational and that it should not include any enforceable, proscriptive standards. Others thought that it should be simplified and reduced in length to make it similar to the codes of other professional organizations (i.e., the American Psychiatric Association). |173| Still others wanted a greater level of specificity in the Code and suggested the inclusion of scenarios and guidance based on those scenarios. |174|

ECTF discussions reflected these tensions between strict ethical standards and flexibility in the Code as well as individual psychologist's concerns regarding their areas of practice. Several ECTF participants told Sidley that they focused on the revisions relevant to their field or area of practice. For example, El-Ghoroury, the American Psychological Association Graduate Student representative member, told Sidley that he focused on the standards dealing with students and teaching. |175| He remembered spending a great deal of time focused on those standards and spent less time and effort on the other sections of the Code. Forensic psychologist Ramos-Grenier told Sidley that she was quite focused on forensic psychology, and ensuring that standards properly addressed the dilemmas forensic psychologists faced. |176| Dierdre Knapp, an industrial organizational psychologist, said she was concerned with ensuring the Code properly distinguished between psychologists who treated patients and those who had organizational clients so that there were standards that provided appropriate guidance to psychologists who did not have patients. |177| And Grill, a military psychologist, focused his attention on standards that would address the ethical situations military psychologists faced. |178|

Some ECTF members told Sidley that Bruce Bennett's |179| interest was specifically in reducing liability for psychologists. Bennett |180| was the Executive Director and CEO of the APA Insurance Trust ("APAIT"). The APAIT, now called The Trust, provided insurance coverage and risk management for psychologists, |181| and according to Fisher APAIT's interest was in reducing liability for psychologists. Some ECTF members told Sidley that Bennett had a lot of information about insurance fraud issues and liability, |182| and that he brought to bear his perspective from APAIT and engaged in ECTF discussions with an eye toward minimizing liability for psychologists. |183| At least one person thought Bennett was at the ECTF representing the APAIT. |184|

Witnesses told Sidley that Bennett advocated for more flexibility in the Code. |185| Fisher recalled that in discussions about flexibility in the Code, Bennett was interested in keeping the Code from becoming so restrictive that good psychologists were made more vulnerable to accusations of unethical behavior. |186| Yet Fisher told Sidley that this point of view was not unique to Bennett and that the task force membership as a whole felt that way. |187| That is, ECTF members did not want the Code revisions to expose psychologists to greater liability in any areas of practice. At least one ECTF member recalled that Bennett favored loosening the Ethics Code standards and including the concept of "reasonableness" because it decreased psychologists' liability. |188|

Bennett's role at APAIT created a clear conflict of interest that was not acknowledged during the revisions process. Fisher told Sidley that, at the time, it did not occur to her that Bennett might have a conflict in being a member of the ECTF charged with revising the Code while working for an entity with a clear interest in limiting liability for psychologists. Considering it in retrospect, Fisher acknowledged that Bennett's involvement in the revisions may have presented a conflict. |189| Fisher told Sidley that Bennett had been part of the prior revision, and that the ECTF had been composed with an eye toward trying to include some individuals who had historical knowledge based on their participation in the 1992 revision.

Fisher said that she did not get the impression that Bennett was trying to sway the Task Force in order to benefit the APAIT financially by reducing its costs for insuring psychologists, and if she had thought he was trying to do so, she would have found that unacceptable. General Counsel Nathalie Gilfoyle told Sidley that she thought Bennett "almost certainly had an agenda" during the ECTF meetings. She thought Bennett would have been concerned about members being charged with ethical violations and APAIT being "on the hook" for payouts. Yet Gilfoyle did not think Bennett's presence presented a conflict of interest because his affiliation with APAIT was known, he was very smart, and his contributions were respected. |190|

The tensions between including flexibility in the Code and having strict standards led the ECTF to make a concerted effort to be precise in the wording of the revised standards. |191| Specifically, they wanted to use clear, unambiguous language in the standards that would provide psychologists with fair notice of conduct that was required and conduct that was prohibited. |192| This concern was a driving force in determining whether or not standards were properly "enforceable." |193|


II. ISSUES RAISED IN ECTF DISCUSSIONS

A. Nuremberg Defense

Subsequent documents show that during the second ECTF meeting, in March 1998, the task force discussed Standard 8.03. The question raised was whether Standard 8.03 could be construed to provide a defense for psychologists working in organizations who made attempts to comply with the Code but were precluded from doing so by their employer–the Nuremberg defense. |194|

Standard 8.03 addressed conflicts between ethics and organizational demands and provided that:

    If the demands of an organization with which psychologists are affiliated conflict with this Ethics Code, psychologists clarify the nature of the conflict, make known their commitment to the Ethics Code, and to the extent feasible, seek to resolve the conflict in a way that permits the fullest adherence to the Ethics Code. |195|

In the 1992 Code, Standard 8.03 was the standard that military and correctional psychologists would have looked to for guidance when they faced a conflict between what was required by the Code and what was demanded by their organizations. Yet we did not find any evidence to suggest that the ECTF discussed the Nuremberg defense in the context of organizational demands placed on military or correctional psychologists. Rather, the primary concern with regard to Standard 8.03 was whether it was fair to permit psychologists working for an organization or corporation to engage in conduct mandated by their employer without having to face ethical ramifications, while sanctioning independently practicing psychologists that engaged in the same conduct but were not acting pursuant to their employers' directives.

Presumably prompted by the ECTF's discussion on this issue, Gilfoyle sought an opinion from outside counsel regarding 8.03. In a memorandum dated September 24, 1998, outside counsel Kit Pierson of Heller Ehrman White & McAuliffe, provided Gilfoyle the "requested comments on possible modification of Ethics Standard 8.03." The memorandum summarized Pierson's views regarding the legal impact of revising 8.03 "so that employees could no longer assert that they were complying with employer directives as a possible defense in ethics matters." |196| Pierson stated that he:

    agree[d] that there are some circumstances in which the 'Nuremberg defense' is clearly inappropriate (e.g., a psychologist is directed to sleep with patients). The commentary to 8.03 in Dr. Jones' book also recognizes this (at 158: 'in rare instances the entire employment situation might be so obviously illegal and unethical as to require withdrawal'). It seems . . . there is very little argument that 8.03 must be available as an absolute defense. |197|

Gilfoyle did not recall asking Pierson about the Nuremberg defense, nor did she recall any discussion that would have led her to ask Pierson about it. |198| When read in context with Pierson's other observations in the memorandum, the sentence "[i]t seems . . . there is very little argument that 8.03 must be available as an absolute defense" seems to suggest that Pierson did not believe 8.03 would or should ever serve as an absolute defense to illegal or unethical conduct. Gilfoyle did not necessarily agree with Pierson on this point, but did not pursue it further. |199| Pierson ultimately suggested that the decision of whether to revise 8.03 so that employees could not use complying with employer directives as a defense "ought to be decided on policy, not legal, grounds." |200| Pierson wrote:

    As a matter of policy, it seems odd to me that APA would permit a psychologist to violate its Code without sanction if directed by an employer, but would sanction another person engaging in the same conduct without this directive. |201|

On October 15, 1998, Gilfoyle issued a legal memorandum to the ECTF analyzing the issue. |202| In it, she stated that prior to the discussion of standard 8.03 at the previous ECTF meeting she:

    had not understood this provision to mean that a psychologist had a 'Nuremberg'-type defense that the employer or an organization with which (s)he is affiliated required or caused the unethical behavior, after unsuccessful efforts by the psychologist to change the organization's unethical practice. |203|

Gilfoyle told Sidley that the underlying concern regarding 8.03 was not whether it provided a "Nuremberg defense," but whether it was fair to permit psychologists working for an organization or corporation to engage in certain conduct without ethical ramifications, when independently practicing psychologists that engaged in the same conduct were open to sanction from APA because they had not been acting pursuant to their employer's directive. Notes from 1998 confirm that the ECTF was grappling with the notion that 8.03 could impose different ethical standards on organizational psychologists than those to which independent practitioners were held. |204|

None of the ECTF participants with whom we spoke had any recollection of the discussion that led to Pierson's and Gilfoyle's memoranda, or of any discussion of their findings. In fact, ECTF participants did not recall discussing the phrase "Nuremberg defense" at any point during the ECTF meetings.

B. Dispensing with Informed Consent for Research

Critics have alleged that Standard 6.12, which addressed dispensing with informed consent in research, was revised to permit the government to conduct research on detainees. We did not find any evidence to support this allegation.

Standard 6.12, in the 1992 Ethics Code, provided that:

    Before determining that planned research (such as research involving only anonymous questionnaires, naturalistic observations, or certain kinds of archival research) does not require the informed consent of research participants, psychologists consider applicable regulations and institutional review board requirements, and they consult with colleagues as appropriate. |205|

The third draft revision of the Code, generated on March 21, 2000, contained the first revisions to 6.12 and proposed revising it to:

    Psychologists may dispense with informed consent only where permitted by law, applicable regulations and institutional review board requirements or where: (1) research is conducted in commonly accepted educational settings and involves the study of normal educational practices, instructional strategies, or effectiveness of or the comparison among instructional techniques, curricula, or classroom management methods and that would not reasonably be assumed to create distress or harm; (2) research involving only anonymous questionnaires, naturalistic observations, or certain kinds of archival research for which participants can not be identified and for which disclosure of the participants' responses would not place them at risk of criminal or civil liability or be damaging to the participants' financial standing, employability, or reputation or that would not reasonably be assumed to create distress or harm. |206|

The draft standard dispensed of informed consent where permitted by law, applicable regulations, and institutional review board requirements and then set forth two exceptions. The language of the standard underwent some additional revisions between this first proposed change and what eventually became the final standard, numbered 8.05 in the 2002 Code.

In its final form, Standard 8.05 was more complex than its predecessor and established two, overarching categories of instances when psychologists were not required to obtain informed consent for research. Standard 8.05 provided that:

    Psychologists may dispense with informed consent only (1) where research would not reasonably be assumed to create distress or harm and involves (a) the study of normal educational practices, curricula, or classroom management methods conducted in educational settings; (b) only anonymous questionnaires, naturalistic observations, or archival research for which disclosure of responses would not place participants at risk of criminal or civil liability or damage their financial standing, employability, or reputation, and confidentiality is protected; or (c) the study of factors related to job or organization effectiveness conducted in organizational settings for which there is no risk to particpants' employability and confidentiality is protected or (2) where otherwise permitted by law or federal or institutional regulations.

Category (1) is subdivided into three lettered subcategories that identify certain kinds of research, such as the study of educational practices or job effectiveness, naturalistic observations, and archival research, that may be conducted without informed consent. According to an Ethics Code commentary authored by Behnke, Campbell, Kinscherff, and Vasquez, allowing these subcategories of research to proceed without informed consent is based on the premise that "[w]hen data collection does not jeopardize [] protections" put in place to prevent "harm, exploitation, distress and adverse consequences of psychological activities" to individuals, psychologists may "use their professional judgment in determining the appropriate consent status of their proposed research." |207| The commentary explains that "confidentiality is maintained and secured in all cases when consent is not sought," although notably that restriction only applies to Category (1). In Fisher's Guide to the Ethics Code, she wrote that the three lettered subcategories were also all "predicated on the condition that the research will not create distress or harm." |208| Therefore, according to the Ethics Code, if research within any of the lettered subcategories would "reasonably be assumed to create distress or harm," then psychologists may not dispense with the requirement to obtain informed consent.

Yet Category (2) allows dispensing with informed consent simply "where otherwise permitted by law or federal or institutional regulations"–and is not subject to the prerequisite that the research not reasonably be assumed to create distress or harm. Nor is it subject to the requirement that confidentiality be maintained and secured in all cases where consent is not sought.

Critics allege that the changes to Standard 6.12 did away with the basic protections regarding informed consent as outlined in the Nuremberg Code. The Nuremberg Code "was an attempt to formulate a universal natural law standard for human experimentation." |209| Specifically, during the Nuremberg trials following World War II, one trial, dubbed the "Medical Case," focused on the physicians' participation. The judgment contained a 10-point code for legitimate human research and experimentation now known as the Nuremberg Code. The first of the 10 points stated that the subject's informed consent was absolutely essential, and explained informed consent more fully, to include factors such as the subject having free power of choice, not being subjected to coercion or force, and having enough knowledge and information to make an enlightened choice. |210|

Critics alleged that by creating a specific and otherwise unrestricted exception to obtaining informed consent, as articulated by Category (2), the Ethics Code allowed psychologists to obviate the basic protections of the Nuremberg Code if and when the government permitted it. The critics' concern was that this exception could allow psychologists to participate with impunity in detainee interrogations if their involvement was deemed to be research and if the government determined informed consent from detainees was not required. |211|

The outside experts Sidley spoke to agreed that the blanket exception for dispensing with informed consent simply when permitted by law was problematic. |212| The experts generally, acknowledged that there were certain circumstances where informed consent was not required, including in situations where the government permits, for example, the gathering of personal health information. |213| That said, Nora Sveaass, Associate Professor of Psychology at the University of Oslo who served on the UN Committee Against Torture from 2006 through 2013, told Sidley that exceptions such as the ones outlined in Category (1) of 8.05 should be linked to specific concerns in order to highlight potentially problematic situations. |214| Janel Gauthier, President of the International Association of Applied Psychology and primary drafter of the "Universal Declaration of Ethical Principles for Psychologists," agreed that "examples of the types of research for which consent . . . may not be needed . . . is helpful. However, it is empty if such examples are given without being put into a context of underlying moral considerations and the need for case-by-case decision making." |215| But all expressed concern that Category (2) had no limiting language associated with it. |216| Sveaass noted that it was "stated as a general permission if [the] state or institution so decide," which was problematic. |217| Gauthier pointed out that "permitted by law does not make something ethically justifiable" and that 8.05 "(perhaps unwittingly) gives the impression that, if dispensing with consent is 'permitted' by law, no further considerations are needed." |218| Sveaass asked why the Standard did not address potential dilemmas, or at least cross-reference to standards that address dilemmas, including 1.02. |219| Sveaass summed up the concern, asking about situations where "the research may be highly controversial and unethical but despite this ordered by the state. Then what?" |220|

Although critics have suggested that the change to Standard 6.12 may have been prompted by the events of 9/11, the complained-of language was drafted prior to 9/11. Sidley asked Fisher about the post-9/11 change of the phrase to "institutional regulations," the purpose of that change, and what "institutional regulations" meant. Fisher responded she did not recall any specific reasons for those changes, and that she was not certain what "institutional regulations" meant. |221| She believed the ECTF probably thought "institutional review board requirements" was redundant because it would already be covered under "federal regulations," but she conceded that "institutional regulations" was not a good phrase to use because it was not clear what the phrase meant, it was not otherwise defined in the Code, and therefore gave no proper notice about what it permitted. |222|

Few participants had a strong recollection of discussions regarding research or informed consent as it related to research–or the reasons for the revision. Fisher stated that the motivation for the changes to 8.05 were to bring it in line with federal regulations that were much more specific than what 6.12 stated, which she described as an "afterthought" in the 1992 Code that said almost nothing. Fisher thought Category (1) created a more protective standard, since none of the identified research could be done without informed consent if it would create distress or harm. She stated that no one was that concerned with Category (2), and that the intent in including it was to catch up to federal regulations, especially dealing with HIPAA. In Fisher's Guide to the Ethics Code, the discussion regarding Category (2) focuses solely on situations under which Protected Health Information ("PHI") can be used without client/patient authorization. |223|

Because the critics' concerns regarding 8.05 focused on the usurping of subjects' informed consent, Sidley also looked at other standards in the 2002 Code dealing with informed consent, including 3.10 "Informed Consent," 9.03 "Informed Consent in Assessments," and 10.01 "Informed Consent to Therapy." Both 9.03 and 10.01 require obtaining informed consent pursuant to the terms in 3.10. In relevant part, 3.10 requires psychologists to obtain informed consent for various activities "except when conducting such activities without consent is mandated by law or governmental regulation or as otherwise provided in this Ethics Code." Standard 9.03 also contains an explicit exception to obtaining informed consent when "testing is mandated by law or governmental regulations." In short, it appears that the Ethics Code's standards dealing with obtaining informed consent permitted psychologists to dispense with that requirement if a law or regulation permitted or mandated it. This aspect of each of the standards was present in the Code before September 11, 2001.

We did not see any evidence to suggest that these standards were changed after September 11, 2001 to accommodate any particular agenda. Nor was there evidence that any national security or response to terrorism discussion occurred in relation to any of these standards. |224|

C. Creation of Police & Public Safety Psychology, Correctional Psychology, and Military Psychology Seat

In 1999, Edmund J. Nightingale was elected to become Council representative for Division 18, Psychologists in Public Service. |225| Division 18 represented psychologists working in the Veterans Administration ("VA"), the criminal justice system, police and public safety, state mental health systems, the Indian Health Service, and other similar settings. |226| When he joined Council, Nightingale learned about the Ethics Code revision and thought that public service, law enforcement, and correctional psychologists, who faced ethical dilemmas unlike those any psychologists faced in private practice, lacked representation on the Task Force. |227| Nightingale had worked in VA psychology for his entire career and knew that VA psychologists faced different challenges than private practitioners. Moreover, based on Nightingale's knowledge of work done by psychologists in law enforcement (i.e., counseling officers with work issues because of family situations, assisting in hostage negotiations, and counseling on police interrogations), he thought these psychologists in particular, and public service psychologists as a group, should have more guidance from the Code–and that a representative on the ECTF from this group could further that end. |228| Therefore, Nightingale moved to add a seat on the ECTF for someone to represent public service psychologists.

Nightingale recalled that the request for the additional ECTF seat was met with general resistance. |229| Nightingale speculated that the resistance may have been due to a number of issues including that the revision process was well underway and the seat would create additional expense that would need to be budgeted to ECTF. |230| Nightingale also thought there was pushback because he was new to Council, and as a relatively young, brash member was "elbow[ing] [his] way" in and bucking typical protocol with his request. |231| Nightingale remembered there was "some annoyance" at his proposal, although he could not identify specific people, with one exception: Nightingale recalled a pointed exchange with Koocher that was probably related to this issue, although Nightingale conceded it was long ago, and the dispute could have been about something else. Nightingale asked Sidley if Koocher was on the ECTF and when we confirmed he was a member, Nightingale said it made sense that Koocher, as a member, would be upset about a newcomer intervening in the ECTF process. |232|

Nightingale said that Pat DeLeon (1999 APA president-elect and 2000 president) shared the view that ECTF should have a seat to represent public service psychologists and counseled Nightingale to advocate for the additional seat not only on behalf of Division 18, but on behalf of Division 19 as well. |233| According to Nightingale, DeLeon advised him that APA usually worked best in coalitions and that joining forces with Division 19, a group that faced similar ethical dilemmas to members of Division 18, would make for a better case to add a seat to the ECTF. Nightingale stated that DeLeon "knew how things worked" because he had been involved in APA governance for a long time and agreed to advocate for the additional seat on behalf of both divisions. |234|

Both the Ethics Committee and Board recommended that Council reject the resolution. |235| Despite the recommendations of the Board and Ethics Committee, Nightingale made an impassioned plea at the Council meeting to add the seat, and succeeded in garnering enough support to do so. |236| In August 2000, Council voted to approve a resolution for funding one additional seat on the ECTF to represent Police & Public Safety Psychology and Correctional Psychology (Division 18), and Military Psychology (Division 19). |237| The approved resolution stated that the Ethics Committee had no representation from these groups and no "demonstrated expertise in these areas of endeavor" and that:

    [T]he current Ethical Principles of Psychologists and Code of Conduct [are] silent on many critical issues faced by psychologists who work in these areas and look to the principles and code and to the Ethics Committee for guidance; and

    [T]he issues they face include consultations with immediate life or death outcomes (hostage negotiations, timing of interventions in the presence of SWAT Teams, dual roles by regulation in prison riot situations) coaching of interrogators during investigative interrogation, development of profiles for investigative purposes, and special situations involving confidentiality and prescribed dual roles (working with military clients and their dependents). |238|

The new seat was set aside for a member from Division 18 or 19, and the presidents of those divisions were asked to submit nominations. |239| Randy Taylor, President of Division 18, nominated Gilbert Sanders and Steve Norton. Sanders submitted his resume, which showed he was a Captain for the United States Public Health Services and a Counseling Psychologist for the Immigration and Naturalization Services ("INS"), and provided a range of mental health services to INS detainees. |240| He was also a Captain with over 20 years in the military and 10 years in correctional psychology work. |241| Norton was a clinical psychologist with areas of interest in forensic and correctional psychology, and was a member of Division 18. |242| Janice Laurence, President of Division 19, nominated Robert Nichols. |243| Nichols was a retired Army Colonel who had worked in clinical and non-clinical settings in the military and civilian settings. |244| The ECTF received three other nominations: Dennis Grill, nominated by task force chair Fisher and task force member Bennett; and Jeffrey Younggren and Karl Moe, both nominated by Koocher. |245| At the time, Younggren was a Colonel in the U.S. Army Reserve, a clinical and forensic psychologist in private practice, and a consultant in risk management to the APAIT. |246| Moe was a member of Division 19 and was in the Air Force. |247| Nightingale confirmed he did not submit, nor was he asked to submit, a nominee. |248|

Grill, who belonged to Division 19, was selected to fill the seat. Documents do not clearly show how or why Grill was picked above other nominees, although internal APA staff correspondence indicates he was Fisher's choice. |249| In an October 3, 2000 email, Gilfoyle told DeLeon that "Celia strongly wanted Dennis Grill." |250| And in an October 4, 2000 email to Koocher, with a copy to Kinscherff, Gilfoyle stated that perhaps they could explain why the Ethics Committee "went with the nominee of the ECTF chair." |251|

Fisher said she did not remember nominating Grill and that he was nominated by the divisions, not by the ECTF. |252| When asked whether Grill was her nominee, Fisher did not remember ever expressing any preference for Grill. |253| Despite nominating him, Fisher stated she would have no reason to favor Grill over any other candidate. |254| The only preference Fisher recalled was not wanting to give the seat to Younggren based on past interactions with him. |255| Otherwise, she could recall no basis for distinguishing among the nominees and speculated that if she did express a preference for Grill, it may have been based on having met Grill once or twice in the past and not having any familiarity with most other nominees. |256|

After learning of Grill's appointment to the ECTF, Sanders, who was not chosen, sent a fax to Kinscherff complaining about Grill's selection because Grill only had military experience whereas Sanders had both military and correctional settings experience. |257| Because Grill lacked experience in correctional psychology, Sanders asked that "the Ethics Committee be informed that several critical factors may not be discussed that correctional psychologists feel [are] urgent in any revision of the APA Code of Ethics." |258| Nightingale was equally displeased with the choice, and in an email to DeLeon said:

    It just goes to show that you can win one on the floor or lose it [in] the cloak rooms . . . Dennis Grill may be a fine nominee, but he has no background in Police/correctional issues. I had thought the process was one wherein the division nominees would become the selection pool from which the committee would make a selection. I was wrong. The gods were offended and they did what they pleased! |259|

In an October 3, 2000 email chain between Gilfoyle and then-APA President DeLeon, DeLeon counseled Gilfoyle to communicate directly with an unnamed male individual who "got council to override everyone's recommendations" but who DeLeon and Gilfoyle expected not to be pleased with Grill's selection for the seat. |260| The email chain does not identify the "he" to whom they are referring, but presumably they are talking about Nightingale, who had moved for the seat in Council. Nightingale confirmed to Sidley that he had been upset someone from military psychology was appointed to the seat, but that he thought Grill was selected due to the politics of his having moved for the seat. Nightingale took the whole episode as a "lesson learned" in diplomacy. |261|

Although he was upset with Grill's selection to the ECTF, Nightingale was able to communicate his concerns about the Ethics Code by making public comments and reaching out to Fisher to express his concerns and suggestions. |262| Fisher was responsive to Nightingale's correspondence, and at one point he even commented: "What a wonderfully complete reply. Thank you for your efforts on behalf of the revision, but more especially for the thoughtfulness of your reply." |263| It therefore does not appear that Nightingale was sidelined in his ability to comment or provide insight to the revision process.

Grill did not know why he was selected to fill the seat–he did not volunteer his name for consideration and did not know who did. |264| He speculated that the person most likely to have suggested his name would have been one of the other nominees–Younggren–whom Grill had known for "a very long time" and who had tried to involved Grill in ethics issues. |265| Although Grill attended ECTF meetings, Fisher and other members do not remember him being particularly vocal. |266|

It is not clear why Grill was selected over other nominees, but it is undisputed that the addition of the seat and Grill's appointment predated the attacks of September 11, 2001 and were not motivated by a response to those events. Indeed, the addition of a seat to represent public service and military psychologists was controversial and the decision was made by Council against recommendations by the Board and Ethics Committee.

D. Conflict Between Ethics and Law – Standard 1.02

The first proposed changes to Standard 1.02 appeared in the fourth draft of the revised Code, generated in October 2000 |267|–which was the first draft generated after Grill's appointment to the ECTF. The proposed changes to Standard 1.02 expanded the Standard to address not only conflicts between the Code and the law but also conflicts between the Code and "regulations, or other governing legal authority." In addition, the revisions permitted psychologists to adhere to the requirements of "the law, regulations, or other governing legal authority" if the conflict was unresolvable. The comparison below shows Standard 1.02 of the 1992 Code against the proposed changes.

1.03 Relationship of Ethics and Law.
If psychologists' ethical responsibilities conflict with law, psychologists make known their commitment to the Ethics Code and take steps to resolve the conflict in a responsible manner.
1.023 Conflict Between Relationship of Ethics and Law, Regulations, or Other Governing Legal Authority.
If psychologists' ethical responsibilities conflict with law, regulations, or other governing legal authority, psychologists make known their commitment to the Ethics Code and take steps to resolve the conflict in a responsible manner. If the conflict is unresolvable via such means, the psychologist may adhere to the requirements of the law, regulations, or other governing legal authority.

The proposed language was ultimately incorporated into Standard 1.02 in the 2002 Code, with one additional change–the deletion of the phrase "in a responsible manner," which was removed in the June 2001 draft. Critics allege that the revised language, especially the addition of the second sentence, made it permissible under the Code for a psychologist to abdicate his or her ethical obligations and follow a military or correctional facility order even when the order conflicted with the Code. As long as a psychologist made known his or her commitment to the Code and took some steps to resolve the conflict, the psychologist could follow the order and not face ethical sanctions. Perhaps the strongest criticism of this revision is that it gave psychologists cover to participate in or otherwise consult on interrogations involving enhanced techniques that were tantamount to torture.

While the revisions to Standard 1.02 may have had the effect of providing cover for these psychologists, we found no indication that the revisions were motivated by the government's interrogation program, or by a desire to protect psychologists who were involved in detainee interrogations, let alone abusive or coercive interrogations. Rather, we found that changes to Standard 1.02 were motivated by a desire to help: 1) clinicians and forensic psychologists caught between court orders and ethical obligations, and 2) military and correctional psychologists who worried about ethical conflicts with military or correctional facility orders. Specifically, psychologists were concerned that the term "law" as used in Standard 1.02 was too narrow to cover certain mandates such as subpoenas, court orders, or law enforcement or military orders, and that the Code lacked clarity with regard to what psychologists were required or permitted to do if they were unable to resolve a conflict between the law and the Code.

Fisher recalled these concerns and explained that silence in the 1992 Ethics Code on what actions psychologists could or should take when faced with a conflict between the Code and the law created confusion and anxiety about whether psychologists who attempted but failed to resolve the conflict had met their ethical obligations, or whether they were required to lose their jobs or face other consequences in order to comply with the Ethics Code. |268| Fisher said that permitting psychologists to "adhere to the requirements of the law, regulations, or other governing legal authority" was meant to make clear that the Code did not require psychologists to quit their jobs, go to jail, or face court martial in order to comply with the Ethics Code. |269|

Comments to the revised draft Code support this statement and indicate that some psychologists were "glad to see an explicit and clear statement about what one's practice should be when the law and ethics are in conflict." |270| Another comment indicated that "[t]he addition that specifies protocol for dealing with conflict between law and ethics was of critical importance. Clarifying this possibly frequent quandry [sic] helps in creating a more applicable set of ethical codes." |271|

1. Concerns from correctional and military psychologists

Fisher's notes reflect that the participants were thinking about the military in the context of 1.02 as early as 1999. Specifically, comments to the 1999 draft standard 1.02 had a typewritten entry of "[n]o changes recommended" and the following handwritten comment: "EC Statement: shd military be referenced?" |272| "EC" is a possible reference to the Ethics Committee, but the document contains no other comments or references for the standard. This was the earliest reference to the military or correctional psychologists contained in the draft revisions, but it is clear that correctional and military psychologists wanted to ensure that Standard 1.02 applied to correctional facility and military orders. |273|

Grill, the task force member representing law enforcement, correctional, public service, and military psychologists, told Sidley that his principal focus as a task force member was to enact changes to standard 1.02 that would ensure military orders were covered as a potential conflicting authority under 1.02 |274| – and that he advocated for this change during the revisions process. |275| Grill stated that, for example, the regulations of the Army, the VA, or the San Antonio Police Department are not law, but they are still directives for those who work for those organizations. |276| Therefore, the language "regulations or other governing legal authority" was added to capture, among other things, military regulations that are not law but are directives. |277| For Grill, it was important to address the conflicts that military psychologists faced on a routine basis when confronted with military procedures and regulations that were not consistent with Ethics Code requirements. |278| A principal concern for Grill was the issue of non-confidentiality for military patients seen by military psychologists. |279| |280| If a military psychologist assessed and treated someone in the military, the psychologist was required to inform superiors of any treatment prescribed or concerns stemming from information gleaned during therapy. Military patients, therefore, were not afforded confidentiality over their assessment and treatment information. |281|

In the early 1990s, Grill and others, including Younggren, worked on a form to explain the limits of treatment confidentiality to military personnel. |282| Grill said that the form tried to inform the soldier as much as possible about the psychologists' limits on maintaining confidentiality and then the soldier could determine whether to continue with treatment. Despite that, Grill was still concerned about confidentiality and other conflicts between military regulations and ethical requirements and thought that 1.02 should provide military psychologists with guidance for those situations. |283| Sidley asked Grill why his concerns were different than those of other participants representing organizational psychology in the ECTF. Grill noted that organizational psychologists had clients not patients, and for Grill it was important to address ethical conflicts in the context of treating patients. |284|

Grill said that no one identified Standard 1.02 for him as one that needed to be changed when he was asked to participate in the ECTF, but that it was clear to him that it was a principal area of concern for his constituency. |285| He had grappled with the question of conflict between military requirements and the law while he practiced, and had discussed it with Younggren. So Grill knew when he started on the ECTF that 1.02 was a relevant standard for his concerns. |286|

Members of Division 18, Psychologists in Public Service, lobbied for the change to 1.02 as well. Gil Sanders, |287| the Chair of the Criminal Justice (Corrections) Section of Division 18, communicated with Fisher about the division's concerns with the scope of 1.02. Specifically, he and Fisher discussed three standards: conflict between ethics and law, |288| multiple relationships, and dispensing with informed consent for research. |289| Regarding the conflict standard, Fisher's notes about their conversation stated that:

    Psychologists in correctional facilities are often caught between conflicting demands of their facilities and the ethics code. However, [the conflict standard] may not be adequate because 'law' is vague in these facilities and are often interpreted through 'regulations.' Would including 'government regulations' in [the conflict standard] address this issue? |290|

Although it is not possible to tell from the note if others had also proposed the language, Fisher's note shows that Sanders suggested the "government regulations" language that was eventually incorporated into the standard. Fisher's notes on the comments to draft 3 of the Code, which was generated in March 2000, also speak to this question, clearly attributing the suggestion of the phrase "law, regulations, or other governing legal authority" to Division 18. |291|

Fisher agreed with the overall concerns of military and correctional psychologists that the scope of 1.02 in the 1992 Code did not capture conflicts arising from directives in correctional and military settings. |292| Fisher recalled that "one of the lawyers" at APA, perhaps Nathalie Gilfoyle, had determined that "law" did not include orders issued by supervisors or superiors to military and correctional psychologists. |293| Fisher thought the revised, more expansive language would therefore ensure 1.02 covered directives to military and correctional psychologists, who faced legal or quasi-legal consequences from disobeying orders from their superiors. More specifically, Fisher recognized the "stakes were higher" for military psychologists, who could face court martial for disobeying a direct order. |294|

The new 1.02 language made explicit that it captured mandates other than federal or state law and therefore clarified that military and correctional psychologists should refer to 1.02 to guide them when faced with conflicts between their employer's directives and ethics. Before the revisions to Standard 1.02, correctional and military psychologists would have looked to 8.03 in the 1992 Code which addressed "Conflicts Between Ethics and Organizational Demands" (1.03 in the 2002 Code). Standard 8.03 required that:

    If the demands of an organization with which psychologists are affiliated conflict with this Ethics Code, psychologists clarify the nature of the conflict, make known their commitment to the Ethics Code, and to the extent feasible, seek to resolve the conflict in a way that permits the fullest adherence to the Ethics Code. |295|

The 1992 Guide to the Ethics Code explicitly contemplated ethical challenges faced by military psychologists under Standard 8.03:

    It is recognized that in some situations as, for example, in the military, the psychologist is not likely to be able to change the system. But note that failing to resolve the conflict is not an ethical violation. Failing to attempt resolution is. |296|

Fisher's Guide to the 2002 Ethics Code did not discuss military and correctional psychologists in relation to 1.03 (2002), but addressed them in the context of 1.02, noting that the standard "addresses instances in which the requirements of the Ethics Code may conflict with judicial authority, with state or federal laws, or with regulations governing the activities of psychologists working in the military, correctional facilities, or other areas of public service." |297| It therefore appears that the language in the 2002 revised Code successfully transferred coverage of ethical conflicts arising in military and correctional settings from 8.03 (1992), which dealt with ethical conflicts with organizational demands, to 1.02, which tackled ethical conflicts with law, regulations, or other governing legal authority.

With the revision to Standard 1.02, psychologists arguably no longer had to resolve ethical conflicts in a way that "permits adherence" |298| to the Code; instead, they could simply follow the law. Yet we did not see any evidence that the shift to reliance on 1.02 from 8.03 (1992 Code) / 1.03 (2002) had a practical impact on the obligations imposed upon military psychologists. Although the language differs, neither iteration of either standard imposed a requirement on psychologists to follow either the Ethics Code or the conflicting directive. Rather, both standards had the same basic affirmative requirements: that psychologists raise the conflict and attempt to resolve it. Both also left the final decision of what to do, if the conflict was unresolvable, to the psychologist. And although both 1.02 and 1.03 were amended in 2010 to include language explicitly prohibiting their terms to excuse a violation of human rights, neither standard contained that explicit limitation in 1992 or 2002.

Sidley found no evidence that the Nuremberg defense arose at any point during the considerations of the revisions to 1.02. This is especially notable in light of the revisions specifically aimed at expanding the scope of 1.02 to capture ethical conflicts with military directives. We note that the 1992 Guide had contemplated that 8.03, at that time the standard that covered military and correctional psychologists, was not a universal solution for conflict situations. The 1992 Guide explained that "psychologists are not ordinarily expected to resign from their professional positions in order to comply with the stipulations of [the] Ethics Code," |299| but recognized that there were certain "rare instances" that were "so obviously illegal and unethical as to require withdrawal, such as if the psychologist finds that he or she has been hired solely to 'develop' and sell bogus, totally unvalidated 'diagnostic' tests." |300| Neither the 1992 Ethics Code nor the 1992 Guide explained when a situation becomes one of the "rare instances" requiring withdrawal. It seems reasonable to conclude from the example provided that an interrogation involving enhanced techniques designed to cause harm to the detainee would be one of the instances that require withdrawal. But, the Ethics Code itself does not explicitly say this; indeed, it does not even state that some situations would require withdrawal; that suggestion is only found in the 1992 Guide to the Code.

Moreover, the 2002 Fisher Guide specifically recognized the difficulty of the ethical dilemma in the context of the military, highlighting it as an area where a psychologist may often be unable to resolve a conflict under 1.02. The Guide explained that:

    Standard 1.02 also recognizes that legal and regulatory authorities may not always respond to specific steps taken by psychologists. When reasonable actions taken by psychologists do not resolve the conflict, they are permitted to make a conscientious decision regarding whether to adhere to the Ethics Code or the legal or regulatory authority.

    For example, U.S. Department of Defense (DoD) regulations routinely require military psychologists to perform activities that place service to the military mission above those of the best interests of the individual client/patient, resulting in conflicts between DoD requirements and Ethical Standards involving confidentiality, maintenance of records, competence, and multiple relationships[]. |301|

Although it is clear that ECTF participants were aware that 1.02 would cover military directives, participants again and again told Sidley that they never contemplated that the exception they were creating was the same kind of exception used in the Nuremberg trials to attempt to excuse egregious, inhumane, and immoral conduct. For example, Ramos-Grenier emphasized that the ECTF was "not even thinking of following orders in the way that we are hearing some psychologists may have. It did not even occur to us at that point that that is even an issue." |302| She analogized the Task Force's inability to predict enhanced interrogation practices to not accounting for unforeseeable advances in technology. |303| However, Ramos-Grenier remembered that the Task Force discussed the idea that the Ethics Code was allowing psychologists in certain situations to set aside the constraints of the Ethics Code and that there was debate about whether that was appropriate. |304| She was one of the few ECTF participants who stated that the group considered whether the standard would allow psychologists to harm people, |305| but she said the harm they envisioned had absolutely nothing to do with interrogations of prisoners or detainees. When asked what kind of "harm" they had considered, Ramos-Grenier responded that their concerns "in hindsight ... were kind of silly." |306| For example, ECTF members were worried about using outdated tests, or institutional policies that provided services to some people but not to others. She emphasized that the ECTF "did not design the Code so that it would allow psychologists to do that [engage or participate in interrogations using enhanced techniques or resulting in harm to detainees], because it wasn't going on in our heads." |307| And Grill, who was specifically at the ECTF to address military concerns, stated that he did not recall anyone ever using the phrase "Nuremberg defense." |308| Indeed, Grill asked the Sidley team for clarification of what the Nuremberg defense was, although after it was explained, he conceded that allowing psychologists to follow military orders even if they conflicted with their ethical constraints was, in essence, what they were talking about in 1.02. |309|

Despite how squarely on point the Nuremberg defense is when considering a standard that allows individuals to eschew ethical limitations otherwise binding on their peers and their profession if directed to the contrary by military superiors, ECTF participants uniformly stated that it did not occur to them that they were opening the door for psychologists to invoke the Nuremberg defense. The amendments to Standard 1.02 were added to the draft Code prior to September 11, 2001, so they could not have been the result of collusion with the government to support torture during the war on terror. And although there were two ECTF meetings after S9/11, there were no changes to 1.02 that further facilitated engaging in unethical conduct or broadened the exception for doing so.

Last, we must note that although there is evidence showing that correctional and military psychologists pushed for the expansion of 1.02 to allow it to cover correctional facility and military regulations, there is no similar evidence of their suggesting the second sentence of 1.02. As noted before, the second sentence is the language of 1.02 that explicitly permits psychologists to follow directives contrary to their ethical obligations. We cannot conclusively say that military or correctional psychologists did not ask for, advocate for, or encourage the adoption of the second sentence, but Sidley found no evidence similar to what it found for their advocacy of the expansion in scope of the standard. In his conversation with Sidley, Grill was very clear on his desire to ensure 1.02 covered military directives by including language other than "law," but he did not remember with as much clarity the debate regarding the second sentence, although he eventually stated that the sentence would have been important because it would help sensitize the ECTF members to the concerns military psychologists faced. |310|

2. Concerns from private practitioners and forensic psychologists

Private practitioners and forensic psychologists were very concerned about the Code generally, which manifested itself in criticism of many of the standards, including 1.02. In general, private practitioners thought the Code was too easily turned into a weapon against psychologists and advocated for the Code to be shorter and clearer in defining aspirational versus enforceable conduct, much less vague and much more careful in its wording. For example, in August 2000, John Fleer wrote to Lenore Walker of Division 42's Ethics Task Force, providing comments on draft 3 of the Ethics Code, generated in March 2000, which sum up many of the concerns private practitioners were expressing. He stated that in his experience as a malpractice attorney having represented mental health professionals:

    The APA Code is routinely utilized in civil trials and administrative hearings to establish the standard of care for psychologists. Judges and juries refer to the Code to make decisions about psychologists' liability for civil damages and whether to revoke or suspend their licenses.

    Unlike most statutes and regulations, the ethical standards in the APA Code are vague as to what specific conduct is mandated or prohibited. The vagueness gives rise to interpretation by so-called experts, typically to the detriment of the psychologist whose work is under scrutiny. The standards are so overly broad that some language can be said to apply to almost anyone accused of negligence or misconduct. I do not believe the Code of Ethics ever helps in the defense of a psychologist. It is only used as a tool for attack. In my view, there are simply too many standards. . . . Given that these principles have the effect of law in many states (e.g. California), it seems to me most important that they are comprehensible to both professionals and lay people and that they are enforceable in a consistent manner.

    ...

    I am certainly not the first person to note the Code's ambiguity and the difficulty which thereby arises in applying it to actual occurrences. (See, Bersoff, D.N. 1994. Explicit ambiguity: The 1992 ethics code as oxymoron. Professional Psychology: Research and Practice, 25, 382-387.)

    Gerald Koocher and Patricia Keith-Spiegel have suggested that the "many qualifiers" in the Code provide "some flexibility in responding to different contexts." (Ethics in Psychology, 2d Ed., New York, Oxford University Press, 1998 at 29.) This is certainly correct. However, it is just such "flexibility" which I find unfair for the competent and well-intentioned psychologist who is fighting for his or her professional life. The APA Ethics Committee is likely to make god use of the Code's "flexibility" to arrive at a just and informed decision. In contrast, an administrative law judge, untrained in psychology, or a jury of laypeople, are not so likely to do so. My comments are addressed to the use of the APA Code in these latter contexts–civil litigation and licensing board disciplinary actions. |311|

Arthur Kovacs and Christie Morehead aired similar thoughts in their comments on draft 3 of the Code, stating that their suggestions "will increase the clarity and precision of the document and will better serve those who believe in the worth of clear and enforceable ethical principles while at the same time markedly reduce the risks that our constituents face from zealous plaintiffs' attorneys and from overzealous psychology board investigators and administrative law judges." |312| Specifically, their proposals were based on, among other things, "[a]n unremitting desire to make sure that the text created provided better protection to our constituents from having to be subject to inappropriate and harmful possible interpretations by plaintiffs' attorneys or by non-psychologist state psychology board investigators and/or administrative law judges." |313|

And in February 2001, Dick Saunders posted a message on the Division 42 listserv with subject line "Ethics Disaster," voicing his opinions on the revision process to date. He commented that a "professionally respectable [document] to me means clear, concise minimum standards of behavior" and that "the Code says little if anything about due process for psychologists, or any of the Constitutional protections to which we are entitled as citizens, including the right to know what we are going to be charged with–so that we can refrain from adverse behavior in the first place, or defend ourselves if necessary in the second place." |314|

Although the documentary evidence confirmed that private practitioners were concerned with the Code and unhappy with the early revisions, it did not show that their most vocal complaints were about 1.02, especially after the revised language was added to the draft in October 2000. However, Division 42 members Sidley spoke to emphasized that having clearer guidance in 1.02 was important to the group. Marty Williams, an ECTF observer for Division 42, Independent Practice, from 2000-2002, recalled this area of concern–and said that standard 1.02 was one of the Division's priorities in its agenda for the Ethics Code revision. |315| Division 42 was the largest Division in APA. Williams confirmed that psychologists in independent practice felt under attack and were concerned about increasing liability from state licensure boards and civil litigation. |316| Williams and other Division 42 representatives, including Lenore Walker and Jean Carter, were very vocal about the risk the Ethics Code extended to them, and believed the Ethics Code had drifted from its original purpose, which was for use by the Ethics Committee to adjudicate complaints against psychologists charged with ethical misconduct. Instead, the Ethics Code had gained the force of law in many states, and psychologists were facing prosecution pursuant to state licensing laws and defending against civil suits, and in both settings, opposing parties used the Ethics Code as a weapon against psychologists. Division 42 wanted to revise the Ethics Code substantially so that independent practitioners would not continue to be hurt by it.

Although Division 42 had several areas it focused on in the revisions, Williams said ensuring that there was clear language in 1.02 that allowed psychologists to follow the law without facing "prosecution" for actions undertaken in compliance with legitimate legal mandates was one of the Division's priorities. |317| For example, Williams explained that one of the ethical rules required psychologists to withhold test data, and practitioners were "getting burned" because judges were ordering them to release data and enter it into evidence. |318| Therefore in order to comply with the Ethics Code, a psychologist was required to withhold the data and therefore disobey a court order and risk being held in contempt and jailed. Carter also recalled that most of the discussions around 1.02 centered around this kind of example situation. |319| It was therefore important to Division 42 that psychologists be free to follow legal orders, and Williams felt very strongly about this. |320|

The 1992 Guide provides a sample 1.02 conflict a forensic psychologist might face: "in a forensic matter in which records are ordered to be released without consent, the psychologist may consider requesting the judge to review the material in private and make a determination if any information should be released." |321| Fisher noted this example in a May 21, 1999 memorandum to the ECTF regarding drafts of standards |322| which supports the idea that this was an area of concern.

Behnke did not recall the ECTF discussions around 1.02, but he did recall that psychologists in independent practice were feeling under attack, and that there had been an enormous amount of "pushback" regarding the Ethics Code and the revision from the independent psychologists who felt under siege. Generally, as seen in some of the comments included above, private practitioners felt like their concerns about the Code being used as a tool against them were not being heard and that the revisions did not reflect the changes they were proposing. When we asked Behnke what Ethics Code revisions would have addressed their concerns, Behnke stated that changes to 1.02 could have primarily addressed their concerns.

3. Nuremberg not discussed

While military, correctional, forensic and other psychologists advocated for revisions to Standard 1.02 which would arguably make it less restrictive on psychologists and permit them to follow the law, court orders, or military directives, absent from the discussion were clear, robust voices to advance the need for a stricter ethical standard that would prevent psychologists from subverting their ethics to comply with a legal directive. This absence is remarkable given that one purpose of the Ethics Code was the "welfare and protection of the individuals and groups with whom psychologists work." And even more remarkable given what we now know about the abuses that occurred during interrogations at CIA black cites and U.S. military detention centers.

There was not complete silence on the side of the debate asking for more specificity in the standards, but those voices recognized that they were in the minority. For example, Nightingale acknowledged that his push for more specific standards ran counter to the concerns driving the majority of the membership. In July 2001, he wrote Fisher that he was "not in agreement with the move away from specificity in standards and away from guidelines toward more generalities. I suppose that this sea change may suit the needs of some constituencies who are concerned about lawsuits and overly zealous boards, but my own concern is educative ... [and] those needs are better served by standards which address some of the concerns of specific groups. Isolated guidelines run the risk of being just that, isolated." |323|

Though the ECTF favored a less restrictive Code, no one that we spoke to who participated in the ECTF process thought that the motivation behind the changes to 1.02 was to provide psychologists an excuse to engage in unethical conduct or to facilitate it in any way– and none had considered the "Nuremberg defense" in the context of 1.02. ECTF member Williams did not associate 1.02 or the changes to it with national security or military settings and "never in a million years" thought that the revision had any relationship to a Nuremberg defense. |324| ECTF member Carter also stated that the discussions about 1.02 and 1.03 were not in the context of national security. |325| In retrospect, Williams recognized that the wording relieved psychologists of the responsibility to refuse to do something morally wrong, but the thought of the 1.02 language being applied in relation to national security settings or interrogation techniques did not occur to him during discussions of the revision. |326|

When we asked Gilfoyle whether she or the ECTF considered the Nuremberg defense in connection with revisions to standard 1.02, Gilfoyle stated she did not recall the Nuremberg defense ever coming up in the context of 1.02. Gilfoyle noted that prior discussion of the Nuremberg defense and her analysis as well as the analysis of outside counsel related only to standard 8.03 and not 1.02. When pressed on why they did not consider that the Nuremberg defense could present more serious and pertinent concerns in a standard that specifically addressed laws conflicting with ethics, Gilfoyle stated that 1.02 was really being looked at and interpreted in the context of addressing psychologists' obligations when dealing with, for example, turning over patient records pursuant to a court order. Moreover, Gilfoyle stated that the phrase "Nuremberg defense" is used in very casual settings to mean that "someone else made me do it," presumably indicating that the phrase did not immediately raise concerns about its potential for excusing immoral conduct. |327|

Many participants with whom we spoke could see how 1.02 could be interpreted as allowing a Nuremberg defense, although they maintained it was not discussed in the context of 1.02 during the revisions. Yet Behnke |328| stated that he did not think 1.02 provided a Nuremberg defense–which he defined as the abdication of moral agency by deferring entirely to another moral agent. Behnke said he never read the APA Ethics Code to allow such an abdication: rather Behnke stated that it affirmatively placed ethical obligations on psychologists to clarify, try to resolve, and in some cases to argue. |329| Ethicists Sidley spoke to had differing opinions on this, with some stating that the Nuremberg defense implications of the language of 1.02 should have been immediately obvious. |330| However, although Gauthier acknowledged that the Standard could certainly present that concern, he also agreed with Behnke's notion that the Standard's first sentence requiring that psychologists engage in order to resolve the conflict stands in contrast with the events at Nuremberg, where soldiers simply removed themselves from the ethical question. |331|

There was at least one person who raised a Numerberg-type concern. After the second sentence was added, which permitted psychologists to follow the law if unable to resolve an conflict, the ECTF received at least one logged comment that specifically raised a concern that the language "reads too much like the 'I was only following orders' excuse that has been used to disastrous and inhuman[e] effect in the past." |332| The reviewer for this comment was Ramos-Grenier, who classified it as "inimical to the spirit of ethics," one of the pre-formulated statements reviewers could assign to comments. |333| Ramos-Grenier was surprised that she had been the reviewer, as she did not recall this comment, and doubted she would use the term "inimical" |334| absent its having been pre-composed. She agreed the phrase must have been preformulated. Although Ramos-Grenier classified the comment as needing no further review, she recalled quite a bit of discussion about the conflict standards. |335| She confirmed that the ECTF did consider whether it was allowing psychologists to "get away" with following directives they had determined were unethical. Nonetheless, the ECTF participants' view of the unethical directives was nowhere near as serious or grave as what gave rise to the term "Nuremberg defense" or as what is currently alleged this language permitted. |336| Instead, Ramos-Grenier said they debated whether psychologists working for organizations should be permitted to operate under a different ethical standard than private practitioners, who would have no choice but to step away from the situation. In the end, the ECTF determined it could not require psychologists to quit or walk away from their jobs whenever they confronted a directive they could not, after considerable required effort, reconcile with the Ethics Code. |337| Ramos-Grenier stated that the real quandary of how a psychologist should resolve a situation where he or she is mandated to do something unethical was never properly resolved, and that she was "not happy" with these standards. Fisher used the same sentiment to describe these standards, saying no one really "liked them." Both recognized that there were serious concerns on both sides of the argument that could not be fully resolved by the Standard.

To be fair, the ECTF also received comments from those who thought it problematic that the second sentence suggested psychologists did not have to follow the law. The APA's Committee on Legal Issues ("COLI") recommended removing it "because the words 'may adhere' seem to imply that psychologists may disregard the law." |338| Fisher's reaction was that "the last sentence is helpful and informative to psychologists." Similarly, a group from a seminar on ethics and legal issues from the University of Maryland submitted comments to draft 5 concrned that the phrase "may adhere" "might be interpreted by some as condoning not following laws, legal rulings, or precedents." |339| The group proposed alternative language that was not adopted.

Despite these countervailing opinions, it is a striking oversight not to grapple with concerns about the Nuremberg defense when drafting a sentence ostensibly to resolve confusion and uncertainty about choosing between legal or organizational mandates and ethics. This is especially the case when one or both of these standards specifically dealt with and sought to incorporate military and law enforcement commands, the very kinds of mandates used as a defense in the Nuremberg Trials. While those involved with the revision claimed that the 1998 legal analysis applied to 8.03, at that point, 8.03 covered correctional and military psychologists.

Although Gilfoyle sought outside counsel's opinion on, among other things, concerns regarding 8.03 and the Nuremberg defense, there is no evidence that Gilfoyle, Fisher, or the ECTF consulted any outside ethicists about this concern. If they had, they would have probably learned that the concern regarding the Nuremberg defense is immediately apparent when reading the language added to 1.02. |340| And although Gauthier pointed to the first sentence in 1.02 as an indication that the psychologist was required to engage in the decision-making process in order to determine the correct path, rather than detach from it as had been the case with soldiers in Nuremberg, he did recognize the concern regarding the Nuremberg defense in the 2002 1.02 standard. |341|

E. Human Rights Standards

The ECTF published draft 5 in February 2001. |342| Fisher's notes show that at the June 2001 session, the ECTF reviewed a comment to draft 5 from the Committee on International Relations in Psychology ("CIRP"), which suggested inserting the phrase "in keeping with the basic principles of human rights" to end the first sentence of Standard 1.02. CIRP was "concerned about the use of this standard in countries with totalitarian regimes." |343| Fisher noted that she "understand[s] their concern and put that in the aspirational section" because she was "not sure whether basic principles of human rights can be operationalized in a way that can be in the specific standards." |344|

When we asked Fisher about CIRP's concern, Fisher recalled that the ECTF discussed the issue, but that they decided they could not define "human rights" in a way that would provide notice to psychologists about what conduct would be considered acceptable under the standard. For example, would a psychologist counseling someone seeking an abortion be counseling someone to violate human rights? They discussed many examples of potential disagreements about the definition of human rights. Gilfoyle agreed that "human rights" is too vague a phrase to be included in the enforceable section of the Ethics Code. |345| As stated earlier, the ECTF had been focused on creating an Ethics Code that provided psychologists with clear notice about prohibited or required conduct, and they felt that inserting a phrase like "human rights" in the enforceable section of the Code ran counter to their efforts in providing clear guidance and notice. |346|

Moreover, Fisher explained that CIRP's concern was one having to do with totalitarian regimes, which they did not at the time think was applicable in the United States. |347| Fisher stated that the lens within which the ECTF viewed this discussion was not about torture, but instead about more everyday situations like if someone could not pay his or her psychologist, was demanding payment potentially depriving that individual of human rights? |348| It did not even occur to them to grapple with whether the standard potentially sanctioned torture in the United States. Fisher stated that had they known about the EIT interrogation program, Standard 1.02 would not have remained the way it was. If she were to be dealing with the issue today, she would include compliance with "human rights" in the standard and define that phrase somewhere in the introduction, perhaps by referencing the World Health Organization or other international treatises. |349| Fisher thought the current version of 1.02, as amended in 2010, does render participation in interrogations using EITs a violation of the Code. |350|

Ethicists do not seem to find the same vagueness in the phrase "human rights" that Gilfoyle, Fisher, and Behnke identified at the time of the ECTF revisions and after, including in their discussions with Sidley. Nancy Sherman, a Professor of Philosophy at Georgetown University and former Distinguished Chair in Ethics at the United States Naval Academy, believed that the prohibition on violating human rights is not and should not be aspirational, but is rather a deontological limitation–in other words, an absolute prohibition. |351|. She agreed that "human rights" could be a vague term, but that most people have a sense of what it means, and the solution to the vagueness problem was to define it within the Ethics Code. |352| Nora Sveaass, an Associate Professor of Psychology at the University of Oslo who served on the United Nations Committee Against Torture from 2006 to 2013, was also skeptical that concerns regarding alternative interpretations of what could constitute human rights should have led to the language included in 1.02. |353|

F. Seligman comment

The ECTF received an official comment on draft 5 from Martin Seligman, 1998 APA president. Seligman's comment addressed standard 2.01(b), Boundaries of Competence, and asserted that the limitations on psychologists regarding competence were based in political considerations and not in fact, and that the standard "counfound[ed] the political leanings of many of the members, with what is known scientifically." |354| Seligman argued that there was no evidence to support engaging in different approaches with patients depending on their ethnicity, race, or socioeconomic status, and emphasized separating politics from the Ethics Code. |355|

Fisher recalled that Seligman had tried to influence her view of the standard on competence. |356| Seligman invited Fisher to meet with him during one of the APA summer functions and generally advocated for a less restrictive competence standard. |357| Fisher reported that she was annoyed at the approach and did nothing in response to his view. |358| If Seligman's conversation with Fisher was contemporaneous with his comment, he would no longer have been in governance, though still arguably was an influential member within APA. Other than the conversation with Seligman, Fisher faced no pressure regarding specific revisions from anyone at APA governance or staff, and stated that she was never unduly influenced one way or another by anyone. |359|

G. October 2001 meeting

The meeting immediately after the events of 9/11 took place in October 2001, and was facilitated as a phone conference, although some staff and at least one member met in person in Washington, D.C. Behnke commented that the meeting taking place as a phone conference cut down on "small talk" or social discussions, and therefore the October 2001 meeting was even more focused than other meetings on the standards. |360| No one recalled going back to revise standards because of the events of 9/11 or because of concerns about national security, terrorism, interrogations, or psychologists' role in any of the aforementioned. Similarly, neither Fisher nor other participants recalled discussions about national security, terrorism, or interrogations.

H. Nightingale concern

After September 11, 2001, at least one comment directed to individuals involved in the Ethics Code revision raised concerns about issues germane to this investigation. Sometime between February 17 and February 20, 2002, Edmund Nightingale wrote to Fisher |361| to reiterate a comment he had brought up "briefly" at the February 17, 2002 Council of Representatives ("COR") meeting. He stated that:

    the current ethics code focuses on a number of general issues and then upon certain specific activities of psychologists such as assessment, therapy, teaching, and research. I wondered aloud whether activities such as advising a physician on psychotropics, a politician on self-presentation and 'spin' on information and events, 'psychological profiling', hostage negotiation, consultation with police interrogators in vivo who are trying to 'break down' a suspect [at this point still innocent until proven guilty], with SWAT teams, national intelligence organizations (CIA, NSA, FBI, etc) would have anything in common with each other which would not be covered already in the more general principles. Perhaps the general principle of 'beneficence' covers it, but there are certainly competing views about who benefits from some of these activities... perhaps some principles on Consultation as an activity would make explicit what is already implicit in the larger picture. Perhaps another time, another place would be the venue for these issues to be considered. |362|

Although Nightingale seemed to be raising a number of different circumstances of varying ethical implications, he did refer to the concept of "interrogators in vivo who are trying to 'break down' a suspect," albeit in the context of consulting with police interrogators. Fisher responded that:

    I think that there are general standards relevant to these issues. However, providing specific guidance on alternative ethical pathways that correctional and military psychologists might select to address the complexity and contextual nature of the types of dilemmas you describe is beyond the scope of the ethics code. |363|

Fisher went on to describe the applicability of certain standards to the different examples he set out, and concluded that "[f]or all the dilemmas you describe, Standard 1.02 is also relevant, recognizing that correctional, military, and other psychologists need to make ethical decisions within the context of laws, regulations, and other legal authorities governing their work." |364|

Fisher told Sidley that she understood Nightingale to be requesting a standard for each example in his email and her response was meant to convey that the Ethics Code could not do that. |365| She said he seemed to want a section of the Code dedicated to correctional and military psychologists, but the 2002 revision had sought to minimize sections dedicated only to particular specialties, including by eliminating the section dedicated to forensic psychology.

Behnke stated that Nightingale was raising a long, laundry list of scenarios, and Fisher's response was that as a category, the list was beyond the scope of the Ethics Code. |366| At the time, despite Nightingale's description, no one imagined that interrogations would become the issue they became, and if they knew then what they know now, things might have evolved in a very different way. Behnke also pointed out that Nightingale's comment came toward the very end of the revision process and the bulk of the revisions were completed, and that people might have been reluctant at that point to reopen the entire revision process. |367|

For his part, Nightingale confirmed that he had envisioned that public service psychologists could benefit from a section or certain standards dedicated to their particular ethical concerns, similar to the section dedicated to forensic psychologists. |368| He also believed that the Code would benefit from directly addressing specific situations rather than describing circumstances generally, which is why he raised some of these scenarios in his email to Fisher. |369| He told Sidley, however, that when he stated in his email that "[p]erhaps another time, another place would be the venue for these issues to be considered," he likely meant that he understood that the Code was close to completion and that the policy decision had been to make it more general rather than more specific. |370|

ECTF members, observers, and staff recalled no changes to any Ethics Code standards because of national security interests or interrogations, and remembered no discussions about either topic. |371| ECTF participants overwhelmingly stated that they would never have supported any language or standard that would support or facilitate torture or cruel, inhuman, or degrading treatment, or that would have supported EITs. Moreover, participants stated that the war on terror and the EIT program were unknown to them at the time the Code was being revised, and that the Bush administration would have engaged in the EIT program was inconceivable. |372|

I. Changes to Principles After September 11, 2001

There were no relevant significant changes to the draft language post September 11, 2001. |373| We reviewed changes made after September 11, 2001 to determine whether any appeared motivated by or connected to the events of 9/11, the country's response to terrorism, and the legal framework of the Yoo/Bybee memos, which were not yet public at the time.

Between draft 5 from June 2001 and draft 6 generated in October 2001, there were two changes to principles dealing with harm and fundamental rights. First, the October 2001 version of Principle A (Beneficence and Nonmaleficence) deleted language added in June 2001 on "thoughtful and prudent conduct" and "preventing] or minimiz[ing] harm to others through acts of commission or omission in their professional behavior." |374|

PRINCIPLE A: BENEFICENCE AND NON-MALEFICENCE
Psychologists strive to have a positive effect on those with whom they work, while taking care to do no harm. By thoughtful and prudent conduct, psychologists aspire to maximize the benefits of their work and to prevent or minimize harm to others through acts of commission or omission in their professional behavior. In their professional actions, psychologists weigh the welfare and rights of their patients or clients, students, supervisees, human research participants, and other affected persons, and the welfare of animal subjects of research. When conflicts occur among psychologists' obligations or concerns, they attempt to resolve these conflicts and to perform their roles in a responsible fashion that avoids or minimizes harm. Because psychologists' scientific and professional judgments and actions may affect the lives of others, they are alert to and guard against personal, financial, social, organizational, or political factors that might lead to misuse of their influence.
PRINCIPLE A: BENEFICENCE AND NON-MALEFICENCE
Psychologists strive to benefit have a positive effect on those with whom they work, and while takeing care to do no harm. By thoughtful and prudent conduct, psychclogists aspire to maximize the benefits of their work and to prevent or minimize harm to athers through acts of commission or omission in their professional behavior. In their professional actions, psychologists seek to safeguard weigh the welfare and rights of those with whom they interact professionally and their patients or clients, students, supervisees, human research participants, and, other affected persons, and the welfare of animal subjects of research. When conflicts occur among psychologists' obligations or concerns, they attempt to resolve these conflicts and to perform their roles in a responsible fashion that avoids or minimizes harm. Because psychologists' scientific and professional judgments and actions may affect the lives of others, they are alert to and guard against personal, financial, social, organizational, or political factors that might lead to misuse of their influence. Psychologists strive to he sensitive to the possible negative consequences of personal impairment that might harm those with whom they work.

Also between the June and October 2001 draft, the phrase "fundamental rights" was deleted from the sentence "Psychologists accord appropriate respect to the fundamental rights, dignity, and worth of all people..." in Principle E (Respect for People's Rights and Dignity). |375|

PRINCIPLE E: RESPECT FOR PEOPLE'S RIGHTS AND DIGNITY
Psychologists accord appropriate respect to the fundamental rights, dignity, and worth of all people. They respect the rights of individuals to privacy, confidentiality, self-determination, and autonomy, and are aware that special safeguards may be necessary to protect the rights and welfare of persons or communities whose vulnerabilities impair autonomous decision-making. Psychologists are aware of and respect cultural, individual, and role differences,
PRINCIPLE E: RESPECT FOR PEOPLE'S RIGHTS AND DIGNITY
Psychologists accord appropriate respect te the fundamental rights, dignity, and worth of all people, and They respect the rights of individuals to privacy, confidentiality, self-determination, and autonomy., and Psychologists are aware that special safeguards may be necessary to protect the rights and welfare of persons or communities whose vulnerabilities impair autonomous decision-making. Psychologists are aware of and respect cultural, individual, and role differences,

Participants did not recall discussions regarding these changes and did not recall the motivation behind them. |376| Although both changes make the relevant principles less protective, Sidley was not able to find any evidence that they were motivated by a desire to facilitate any conduct in response to the events of September 11, 2001.

J. Do No Harm

It is important to note that many members and staff stated that the changes to 1.02 alone could not have provided psychologists with "permission" to engage in torture or cruel, inhuman, or degrading treatment because the Ethics Code still imposed a requirement to "do no harm." |377|

The general concept of "do no harm" exists in two places in the Code: in the General Principles and in the Enforceable Standards.

"Principle A: Beneficence and Nonmaleficence," reads, in relevant part: "Psychologists strive to benefit those with whom they work, and take care to do no harm . . . When conflicts occur among psychologists' obligations or concerns, they attempt to resolve these conflicts in a responsible fashion that avoids or minimizes harm. . . ." Although the Principles "are aspirational goals to guide psychologists toward the highest ideals of psychology . . . [and] should be considered by psychologists in arriving at an ethical course of action," they are "not themselves enforceable rules." |378| Indeed, "General Principles, in contrast to Ethical Standards, do not represent obligations and should not form the basis for imposing sanctions. Relying upon General Principles for either of these reasons distorts both their meaning and purpose." |379| Therefore, although the aspirational principles are meant to provide directional guidance and a sense of ideal conduct, they are not actionable and provide no basis by which to adjudge a psychologist's conduct with any consequence.

Standard 3.04 (2002) is titled "Avoiding Harm" and reads: "Psychologists take reasonable steps to avoid harming their clients/patients, students, supervisees, research participants, organizational clients, and others with whom they work, and to minimize harm where it is foreseeable and unavoidable."

First, 3.04 has a different mandate than General Principle A. It does not instruct psychologists to do no harm, but rather obligates them to "avoid harming" and to "minimize harm." Although it encourages psychologists to distance themselves from causing harm, it is not an absolute requirement to do no harm.

Second, according to the Ethics Office, standard 3.04 in particular is not enforceable on its own. Specifically, Behnke and Lindsey Childress-Beatty |380| stated that a psychologist would not be charged with violating standard 3.04 unless he or she was also charged with violating other standards. In other words, unless a psychologist caused harm in a way that violated a standard other than 3.04, that psychologist could not be charged with violating standard 3.04. Childress-Beatty explained that "harm" was too vague a concept and did not provide psychologists with proper notice about proscribed behavior. |381| For example, a psychologist who competently testified at a child custody hearing in such a way that a parent did not obtain custody could be said to be causing "harm" to that individual. |382| Because "harm" was so broad a term as to potentially capture that kind of conduct, it could not be the basis of liability on its own. Behnke and Childress-Beatty said that this understanding of 3.04 came from the General Counsel's office at APA. When asked about standard 3.04, Gilfoyle stated that it absolutely could be the sole basis for charges against a psychologist and that there was no reason for it not to be enforceable on its own. |383|

Therefore, although the Code contains both an exhortation to take care to do no harm and an explicit standard that requires avoiding and minimizing harm, the view of the APA Ethics Office is that doing harm is not a basis for an ethical violation in the absence of a violation of another standard.


APA INTERACTIONS WITH CIA AND DoD: 2001–2004

I. BACKGROUND: GOVERNMENT POLICY AND PRACTICE

On September 17, 2001, President George W. Bush signed a Memorandum of Notification granting the CIA authority to covertly capture and detain individuals who posed a threat of terrorist activity. Over the next several months, the CIA and DoD began capturing and interrogating individuals suspected of involvement in terrorist activity, as well as individuals believed to have knowledge of such activity even if not involved themselves. These individuals were detained at foreign military bases and CIA black sites, where they were classified as "enemy combatants" |384| and denied protected status under the Geneva Conventions. |385| President Bush also issued a policy statement directing military commanders to "treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva," |386| but there is no evidence that a similar policy statement was directed toward non-military government agencies. |387|

On January 9, 2002, just days before the detention facility at Guantanamo Bay opened, John Yoo, Deputy Assistant Attorney General in the Department of Justice's Office of Legal Counsel ("OLC"), produced a memorandum to William J. Haynes, General Counsel for the Department of Defense, regarding the applicability of international laws of armed conflict to the detention of members of al Qaeda and the Taliban at Guantanamo. |388| The memorandum concluded that the War Crimes Act, the Geneva Conventions, and customary international law do not apply to al Qaeda and Taliban detainees.

On January 11, 2002, the first detainees began arriving at Guantanamo Bay, where both the CIA and DoD had set up interrogation facilities. When the detention center at Guantanamo opened in January 2002, military and intelligence personnel were assigned to either an investigative role or an intelligence gathering role. The Criminal Investigation Task Force ("CITF"), an organization created under the auspices of the Department of Defense, functioned to maintain security and conduct criminal investigations of suspected terrorists for the purpose of bringing them to trial. The CITF, dubbed JTF-160, included members from the Army, Navy, Marine, and Air Force investigative services and divisions. By contrast, the military personnel attached to the intelligence mission, dubbed JTF-170, operated at Guantanamo for the purpose of gathering intelligence to dismantle terrorist networks and prevent additional attacks. |389|

A. Origins of Enhanced Interrogation Techniques

As the CIA and DoD began their detention programs, both agencies turned to the Joint Personnel Recovery Agency ("JPRA") for assistance. The JPRA is a military agency run under the auspices of the Chairman of the Joint Chiefs of Staff to provide education and training regarding personnel recovery matters. The JPRA runs Survival, Evasion, Resistance, and Escape ("SERE") schools designed to train DoD personnel in the skills necessary to survive and evade enemy capture in hostile climates and to resist the enemy in the event of capture. The segment of the training focused on resistance exposes students to the physical and psychological methods of interrogation that might be used by an enemy who does not abide by the Geneva Conventions as a means of inoculating them against the effects of such techniques in the event of capture. |390| The physical and psychological pressures used at SERE schools include stress positions, sleep deprivation, abdomen slaps, isolation, degradation, walling, and waterboarding. |391|

Psychologists monitor the training programs at SERE schools to ensure that no harm comes to students. At the Air Force SERE school in Spokane, Washington, James Mitchell and Bruce Jessen served as psychologists in this role. Sidley's information about Mitchell and Jessen's activities at the SERE school comes from interviews with witnesses who also worked with the SERE program. One witness described Mitchell and Jessen as a "driving force" at the center of the SERE program, which originated with the Air Force school. |392| The witness said that Mitchell was "dogmatic" and introduced new "backward" methods to the curriculum, in which students would be exposed to interrogation tactics first and then receive instruction and training only after exposure. |393| Another witness who had worked with Mitchell and Jessen in the SERE school environment described a "dust up" within the ranks of psychologists around 1999 or 2000 regarding the role of psychologists at the SERE school, prompted by Jessen's desire to "play interrogator." The witness said that many psychologists in the program objected to the idea that a psychologist would "wear two hats," as both a monitor of the interrogation and the interrogator. The witness emphasized that the goal of psychologists at the SERE schools was to select the best participants and ensure a safe training environment. |394|

Bryce LeFever, a psychologist at the Navy SERE school in the 1990s, said that representatives from the different SERE schools held an annual meeting to discuss and compare training methods. LeFever said that, during one of these meetings, he, Mitchell, Jessen, and another psychologist spent most of a week with Joseph Matarazzo, a former President of the APA, in Spokane or Colorado Springs. LeFever recalled that Matarazzo was invited by Army psychologists so that he could assess psychologists' involvement with the SERE program and ensure that it was ethical. He stated that Matarazzo's "ethical test" was whether a person would be proud of his actions if they were published on the front page of the newspaper. |395| Matarazzo did not make any specific mention of the Ethics Code, but he indicated that if he could use his skills as a psychologist to further America's cause, he would not hesitate to do so. Lefever said that he completely agreed with Matarazzo's point of view that psychologists should be proud to use their skills to defend the nation. |396|

Just weeks before the first detainees arrived at Guantanamo and more than a month before President Bush signed a memorandum denying detainees the protections of the Geneva Conventions, DoD's Office of the General Counsel began soliciting information from JPRA regarding information on detainee "exploitation." |397| In response to DoD's request, in February 2002, Jessen circulated to JPRA commander Col. Randy Moulton and other senior JPRA officers a draft exploitation plan, which incorporated heavily techniques used at the SERE schools. |398| Shortly thereafter, DoD requested additional support, in response to which Jessen and another JPRA instructor taught a two week "ad hoc 'crash' course on interrogation" for a group that would be sent to Guantanamo as interrogation staff. |399| In April, Jessen drafted and circulated to Moulton another draft exploitation plan, containing the recommendation that JPRA personnel remain involved in the detainee exploitation process, which he explained should occur at a separate facility that was "off limits to non-essential personnel, press, ICRC, or foreign observers." |400|

Meanwhile, the CIA also turned to JPRA as it began considering interrogation options for detainees it expected to hold in its custody. In January 2002, the CIA's Office of Technical Services ("OTS") commissioned a report from Mitchell and Jessen titled "Recognizing and Developing Countermeasures to Al-Qa'ida Resistance to Interrogation Techniques: A Resistance training Perspective," |401| which related to the al Qaeda manual that the CIA believed to include descriptions of strategies to resist interrogations. |402|

Shortly after preparing their report, Mitchell and Jessen attended a lecture given by Martin Seligman at the Navy SERE school in San Diego on May 17, 2002. |403| Seligman explained that Kirk Hubbard had invited him to the program, where he "lectured to about 100 people on how captured American personnel could use what is known about learned helplessness to resist, evade, and escape captivity and interrogation." |404| Seligman said that he was not permitted to attend any other sessions at the event, and when he asked two former police interrogators who had transferred to the DoD about their methods, he was told that they could not share any information with him because he was a civilian and lacked security clearance. |405| Hubbard confirmed that he invited Seligman to the conference during a meeting with Mitchell and Jessen on April 3, 2002. |406| Although Seligman could not indpendently recall any meetings with Mitchell and Jessen other than a December 2001 conference at his home and the May 2002 JPRA-sponsored lecture, |407| he said that if such a meeting had occurred, he assumed they would have discussed his theory of learned helplessness in the context of captured American personnel, but not as a means of interrogating detainees. |408| Hubbard confirmed that Mitchell expressed interest in Seligman's theories of learned helplessness and positive psychology, but that they did not speak with Seligman about interrogations directly at any point. |409|

B. The First Application of Enhanced Interrogation Techniques

On March 28, 2002, Abu Zubaydah was captured in Pakistan and subsequently rendered to a CIA black site in Thailand. Initially, Zubaydah was held in a hospital facility, where he was questioned by special agents from the FBI. Though Zubaydah appeared to be cooperating with the agents, the CIA's CTC and OTS soon began proposing more aggressive tactics, including coercive physical techniques. |410| The CIA contracted with James Mitchell to consult on psychological aspects of the interrogation and to "provide real-time recommendations to overcome Abu Zubaydah's resistance to interrogation." |411| By mid-April, the CIA had taken control of the interrogation and begun implementing a plan developed by the psychological team. |412| At the end of April, the interrogation team proposed three alternative interrogation plans to CIA Headquarters, and Headquarters approved the most coercive of the three plans, the one supported by Mitchell. |413|

In July 2002, Mitchell joined Jessen, who had recently retired from the Department of Defense, |414| and other former JPRA officials to form Mitchell Jessen & Associates. The CIA soon contracted with the newly formed company to support the CIA's fledgling interrogation program. |415| Mitchell and Jessen's roles under the contract initially included conducting interrogations, assessing the detainees' fitness for interrogations, and assessing the effectiveness of particular interrogation techniques, but in May 2004 the CIA's policy changed and thereafter Mitchell and Jessen acted only as interrogators. |416| Mitchell said that he and Jessen never intended to study the effectiveness of the techniques themselves, but rather that their role was "to find and pay an independent researcher, not involved with the program, to do the work." |417| Mitchell explained that they never fulfilled the part of the contract calling for an evaluation of the effectiveness of the program, because the contract was terminated. |418|

During July, Mitchell proposed that the CIA should begin using twelve interrogation techniques derived from SERE training, including the attention grasp, walling, facial hold, facial slap, cramped confinement, wall standing, stress positions, sleep deprivation, waterboard, use of diapers, use of insects, and mock burial. |419| The CIA's OTS obtained data from several psychologists and other academics with expertise in psychopathology and from JPRA on the "potential long-term psychological effects on detainees" of using the proposed techniques. |420| On August 3, CIA Headquarters formally approved the use of a set of ten techniques proposed by Mitchell, including use of the waterboard, "subject to a competent evaluation of the medical and psychological state of the detainee." |421| Over the next three weeks, Mitchell and Jessen subjected Zubaydah to the enhanced interrogation techniques on a daily basis. |422| Among other techniques, interrogators caged Zubaydah in small boxes, placed him in stress positions, deprived him of sleep, and waterboarded him several times each day. |423| FBI agents present for the interrogation objected that such techniques were "borderline torture," and FBI Director Robert Mueller subsequently ordered that FBI agents would not participate in interrogations using techniques that were not permitted in domestic investigations. |424|

At the conclusion of Zubaydah's interrogation, the CIA considered it a success and recommended that the plan, in which psychologists "shape[d] compliance of high value captives prior to debriefing by substantive experts," be used as a template for future interrogations. |425| Shortly thereafter, interrogation operations based on Mitchell and Jessen's plans began expanding to other CIA black sites. |426|

Throughout the summer and fall of 2002, JPRA continued to support interrogator training efforts for both the CIA and DoD. JPRA developed a training program for the CIA that included demonstrations of the physical pressures used at SERE schools, including body slaps, face slaps, hooding, stress positions, walling, immersion in water, stripping, isolation, and sleep deprivation, |427| and on July 1 and 2, JPRA instructors facilitated a two-day training based on this program. |428| The July training also included instruction on waterboarding. |429| In June and July 2002, the Chief of Staff of JPRA also worked with Army Special Operations Command's Psychological Directorate to "develop[] a plan designed to teach interrogators how to exploit high value detainees." |430|

C. Legal Guidance

On August 1, 2002, the Office of Legal Counsel produced a pair of memoranda directed to Alberto R. Gonzales, Counsel to the President, assessing the standards for conducting interrogations under 18 U.S.C. 2340-2340A |431| and applying the analysis to an interrogation plan for a specific detainee. |432| The first memorandum defined torture in narrow terms:

    Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death. For purely mental pain or suffering to amount to torture under Section 2340, it must result in significant psychological harm of significant duration, e.g., lasting for months or even years. |433|

The scope of the statute narrowed even further under the memorandum's analysis of specific intent, which required that, to torture, an individual must "act[] with the express purpose of inflicting severe pain or suffering." Thus, if an individual held a "good faith belief that his conduct would not produce severe pain or suffering, specific intent was negated. This good faith belief might be shown by an individual "taking such steps as surveying professional literature, consulting with experts, or reviewing evidence gained from past experience."

Furthermore, the memorandum concluded, even if the interrogation activities violated Section 2340, the application of Section 2340A to interrogations of enemy combatants might represent an unconstitutional infringement of the President's Commander in Chief powers. At the time that the OLC prepared this memorandum, its authors Jay Bybee and John Yoo had seen an assessment of the psychological effects of military resistance training and had "used that assessment to inform" the opinion. |434|

At an August 12 meeting, shortly after the Department of Justice issued the two memoranda offering guidance on the legality of the interrogation program, JPRA created a special program to limit distribution of information related to JPRA's "sensitive activities" in support of interrogations. |435| As the CIA continued to consult with DOJ on the expanded use of enhanced interrogation techniques, a supplementary document was produced that both confirmed the OLC's previous conclusions regarding the torture statute and came to similar conclusions with respect to the federal War Crimes Act and the Fifth, Eighth, and Fourteenth Amendments. The CIA interpreted this subsequent analysis as an agreement from DOJ that the legal opinions embodied in the August 2002 memoranda extended beyond the specific conditions described in those opinions. |436|

D. Behavioral Science Consultation Teams

As Mitchell and Jessen worked with the CIA and DoD to develop exploitation plans, Maj. Gen. Michael Dunlavey, commander at Guantanamo, requested a team of psychologists and other mental health professionals to facilitate interrogations at the detention site. These teams of psychologists and psychiatrists were called Behavioral Science Consultation Teams ("BSCT").

The concept of a BSCT had originated in the Naval Criminal Investigative Service ("NCIS"). Michael Gelles, Chief Psychologist of NCIS, had developed a behavioral science consultation team to guide the CITF at Guantanamo in understanding the individuals against whom they intended to bring criminal charges. |437| Dunlavey adopted Gelles's term but significantly altered the role that such a team would play. Instead of working with a law enforcement team behind the scenes to enhance understanding of a detainee's cultural and personal background, the Guantanamo BSCT psychologists and psychiatrists would work in the interrogation room to assist interrogators in breaking through a detainee's defenses and extracting information. |438| Morgan Banks, the Chief of the Psychological Applications Directorate in the Army Special Operations Command and senior Army SERE Psychologist, stated that he was not consulted when the BSCT was established. |439|

In July 2002, psychologist Maj. John Leso, psychiatrist Maj. Paul Burney, and a psychiatric technician, arrived at Guantanamo. They had expected to serve as healthcare providers to servicemen suffering from combat stress, but upon their arrival they were assigned as the first BSCT. When they landed at Guantanamo, neither Leso nor Burney had training or experience in interrogations or intelligence gathering. |440| Indeed, one witness commented that, at the time, no training programs had been developed for psychologists deployed to Guantanamo, and they were expected to get their training "on the job." |441|

Another witness described a general state of confusion at the time regarding which roles psychologists should play in interrogations. Because military psychologists had, prior to this point, primarily worked in a clinical assessment context, the witness explained that there were very few active duty psychologists with training or experience in supporting interrogations to provide guidance. |442|

The BSCT soon reached out to Banks for guidance on how to support the intelligence mission. |443| Banks said that he recognized that the Army had very little institutional knowledge regarding interrogations at that point, and he thought it was important that psychologists working to support interrogations have SERE training so that they would recognize the danger of the power differential between detainees and guards. He thought that psychologists could make significant contributions to the intelligence mission, both by preventing abuse and by enhancing the effectiveness of interrogations. |444|

Banks requested assistance from JPRA in organizing training for the Guantanamo BSCT. |445| At this point, JPRA was already developing an exploitation and interrogation training program, which included instruction on the physical and psychological pressures used at the SERE schools. |446| After JPRA agreed to modify its planned training sessions to suit BSCTs, Banks invited Leso and other interrogation personnel to attend the training. |447|

In August 2002, the Chairman of the Joint Chiefs of Staff completed a review of the Guantanamo interrogation program, which recommended that the FBI Behavioral Science Unit, Army BSCT, Southern Command Psychological Operations Support Element, and JTF-170 clinical psychologist "develop a plan to exploit detainee vulnerabilities." As part of this process, Dunlavey considered SERE training techniques as "possible DoD interrogation alternatives." |448|

On September 16, 2002, the Army Special Operations Command and JPRA co-hosted a SERE psychologist conference at Fort Bragg for interrogation personnel and the BSCT responsible for facilitating interrogations at Guantanamo. |449| The Director of Intelligence at Guantanamo approved the trip with the expectation that the BSCT would learn about techniques that could be used in interrogations. |450| The training program included a briefing on the exploitation techniques used to increase resistance at SERE schools. |451| Although Banks stated that he did not think that SERE resistance concepts and physical pressures were taught during this conference, Burney said that he discussed with Banks Guantanamo command's interest in obtaining a list of techniques. |452| In light of Banks's professed belief that interrogation support personnel should receive SERE training, it seems likely that Banks was aware when he organized the training that participants would become familiar with the SERE resistance training techniques, including physical pressures.

E. Guantanamo Request for Authorization to Use SERE-Based Interrogation Techniques

Shortly after Burney and Leso returned from training at Fort Bragg, Dunlavey directed his staff to draft a request to the Southern Command for the authority to use additional interrogation techniques at Guantanamo. |453| Lt. Col. Jerald Phifer instructed the BSCT team to "draft an interrogation policy that could be formally submitted up the chain of command for review." |454| Banks stated that it was his impression that Leso and Burney were under enormous pressure from their superiors to produce a memo requesting authorization for harsh interrogation methods, |455| and Burney has testified that there was pressure from the command to get "tougher" and use more coercive techniques. |456|

Leso and Burney prepared a memorandum listing proposed interrogation techniques, many of which they had learned of or observed during their Fort Bragg SERE training. |457| The memo delineated three categories of interrogation techniques, as decribed in the Senate Armed Services Committee's 2008 report:

    Category I techniques included incentives and "mildly adverse approaches" such as telling a detainee that he was going to be at GTMO forever unless he cooperated. . . .

    Category II techniques were designed for "high priority" detainees, defined in the memo as "any detainee suspected of having significant information relative to the security of the United States."

    Category II techniques included stress positions; the use of isolation for up to 30 days (with the possibility of additional 30 day periods, if authorized by the Chief Interrogator); depriving a detainee of food for up to 12 hours (or as long as the interrogator goes without food during an interrogation); the use of back-to-back 20 hour interrogations once per week; removal of all comfort items including religious items; forced grooming; handcuffing a detainee; and placing a hood on a detainee during questioning or movement.

    The memo reserved Category III techniques "ONLY for detainees that have evidenced advanced resistance and are suspected of having significant information pertinent to national security." Category III techniques included the daily use of 20 hour interrogations; the use of strict isolation without the right of visitation by treating medical professionals or the International Committee of the Red Cross (ICRC); the use of food restriction for 24 hours once a week; the use of scenarios designed to convince the detainee he might experience a painful or fatal outcome; non-injurious physical consequences; removal of clothing; and exposure to cold weather or water until such time as the detainee began to shiver. |458|

Leso and Burney also included a statement reflecting their concerns that "[p]hysical and/or emotional harm from the above techniques may emerge months or even years after their use," and "[i]nterrogation techniques that rely on physical or adverse consequences are likely to garner inaccurate information and create an increased level of resistance." |459|

Leso and Burney shared the memo with Banks, who "praised the BSCT for their 'great job' on the memo," but raised concerns regarding the "physical pressures" recommended in the memo because such pressures were used in SERE training to increase rather than break down resistance to interrogation:

    The use of physical pressures brings with it a large number of potential negative side effects. . . When individuals are gradually exposed to increasing levels of discomfort, it is more common for them to resist harder. . . . Bottom line: The likelihood that the use of physical pressures will increase the delivery of accurate information from a detainee is very low. The likelihood that the use of physical pressure will increase the level of resistance in a detainee is very high. . . My strong recommendation is that you do not use physical pressures. . . . [If GTMO does decide to use them] you are taking a substantial risk, with very limited benefit." |460|

Sidley's only evidence of additional communications and thoughts related to this memorandum, not included in the Senate Armed Services Committee's report, comes from interviews with Morgan Banks and Larry James. James said that, despite producing the memo, Leso continued to work to convince the chain of command that interrogations based on rapport-building were superior to abusive tactics. |461| Banks agreed that Leso continued to communicate with him to find ways to combat his commander's instruction to develop coercive techniques. |462|

However, it seems likely that Banks's condemnation of the techniques listed in the BSCT memo is less sweeping than it first appears. Banks explained that, in the SERE community, "physical pressure" is a term used in contrast to "psychological pressure." He added that, by using the term physical pressures, he was not approving of the use of psychological pressures. |463| However, his explanation seems odd, given that he identified the vast majority of the techniques identified in the BSCT memorandum as psychological pressures. |464| Banks went on to explain that it is more difficult to define when psychological pressures are impermissible because a psychologist would need to assess whether such a technique would be safe, legal, ethical, and effective. For example, Banks thought that the use of stress positions might or might not be permissible depending on whether it was safe under the circumstances. |465| Therefore, Banks's email, when read in context, recommends against the use of only those few techniques that qualify as "physical pressures," and could have been read as an implicit endorsement of the majority of the techniques listed in the BSCT memo.

On October 2, Guantanamo staff convened a meeting with Jonathan Fredman, Chief Counsel to the CIA's Counterterrorism Center ("CTC"). The BSCT provided a briefing on the Fort Bragg training, describing psychological stressors such as sleep deprivation and isolation as "extremely effective." |466| Fredman concluded that all of the techniques listed in the BSCT memo were legal, |467| and Guantanamo staff prepared a memorandum heavily based on the BSCT memo to be submitted to the Secretary of Defense for approval. |468|

On December 2, 2002, Secretary of Defense Donald Rumsfeldauthorized the use of all techniques listed in Categories I and II and one of the techniques listed in Category III, "the use of mild, non-injurious physical contact," for interrogations of detainees at Guantanamo Bay. |469|

Rumsfeld's authorization arguably permitted activities that run afoul of Army Regulation 190-8 ("AR 190-8"), made effective in 1997, which established policies and guidance for the treatment of prisoners of war and detainees. AR 190-8, which is Army policy, requires that all persons captured and held in the custody of the United States Armed Forces during an armed conflict receive humane treatment consistent with the Geneva Conventions. |470| Banks said that this policy made clear to him that the Geneva Convention protections applied to all detainees held by the Department of Defense at Guantanamo. He explained that, as soon as he realized that the Army was holding detainees, he reviewed AR 190-8 with a Judge Advocate General ("JAG"), and that they arrived at this conclusion together. However, Banks conceded that AR 190-8 is merely policy that can be superseded by an order of the Secretary of Defense, such as the authorization provided on December 2, 2002. He explained that, in the event of a conflict, individuals in the military would be required to follow an order from the Secretary in contravention of AR 190-8. |471| Thus, it is unlikely that AR 190-8 was an effective shield for detainees held at Guantanamo Bay.

F. Enhanced Interrogations at Guantanamo

In November 2002, Maj. Gen. Geoffrey Miller replaced Dunlavey as commander of the intelligence mission at Guantanamo. Miller quickly approved an interrogation plan for Mohammed al Qahtani, the alleged "20th hijacker" in the 9/11 attacks, that utilized the newly approved |472| enhanced interrogation techniques, based on the memo drafted by the Guantanamo BSCT. |473|

As the interrogation of al Qahtani began on November 23, members of the BSCT were present to observe and assist interrogators. A log of the al Qahtani interrogation reveals that Leso participated directly at several points, including by recommending that al Qahtani be placed in a swivel chair "to keep him awake and stop him from fixing his eyes on one spot in [the] booth." An unidentified BSCT also observed at various times that al Qahtani was lying or trying to gain sympathy. |474| James said that it was not clear whether this unidentified BSCT was Leso because there were around ten psychologists at Guantanamo at the time; he conceded, however, that based on the timing and the small size of the BSCT team, comprised only of Leso, Burney, and one or two psychological technicians, it was likely that Leso was the BSCT described in the interrogation log. |475| Gen. James Hill later confirmed that Guantanamo interrogators were "working with behavioral scientists," when they applied the enhanced techniques. |476|

Sidley was unable to speak with Leso, and thus our knowledge of the circumstances of this interrogation come only from the report of the Senate Armed Services Committee and witnesses who knew Leso. James said that the al Qahtani interrogation was directed by a high-ranking officer, and that Leso had no legal authority to stop the interrogation. |477| Moreover, he explained that Leso was young and inexperienced, and had no knowledge regarding how to oppose an order that had been approved by officials in the offices of the Attorney General and Secretary of Defense. By focusing on the circumstances of Leso's involvement, James attempted to absolve Leso of responsibility for his actions. This attitude echoes that of the APA staff who adjudicated the complaints filed against Leso after the al Qahtani interrogation log came to light, who also excused Leso's participation in the interrogation because of his youth and inexperience.

Throughout the fall of 2002, JPRA continued to provide training support to both DoD and CIA. In October, JPRA developed a training session for Guantanamo interrogators that was nearly identical to the agenda developed for the Fort Bragg training from September, including instruction on the use of physical pressures. |478| In November 2002, the CIA's Counterterrorism Center, with assistance from JPRA, initiated an Interrogator Training Course designed to train, qualify, and certify individuals as CIA interrogators. |479| On December 30 and 31, two SERE instructors traveled to Guantanamo to conduct enhanced interrogation technique training. |480|

G. Growing Opposition to the Enhanced Interrogation Program

As the interrogation program moved forward, FBI and CITF personnel stationed at Guantanamo began to voice concerns about the abusive tactics rumored to be inflicted on the detainees in CIA custody. These concerns intensified and moved further up the chain of command throughout the fall. On December 18, 2002, after hearing allegations that prisoner abuses were occurring at Guantanamo, Alberto Mora, General Counsel of the Navy, met with subordinates David Brant, Director of the NCIS, and Michael Gelles, NCIS's Chief Psychologist. Mora confirmed with his counterpart in the Army, which had operational responsibility for Guantanamo detainees, that the abusive practices were authorized by Secretary of Defense Rumsfeld, before confronting William Haynes, DoD's General Counsel, with his concerns. Mora initially assumed that Rumsfeld would reverse his authorization of these techniques, but when Mora continued to hear reports of the abusive tactics several weeks later, he again confronted Haynes.

On January 15, 2003, Mora prepared a memorandum concluding that the majority of the tactics that had been approved by Rumsfeld constituted cruel and unusual treatment or torture. He threatened to sign and circulate the memorandum that day unless he heard that the use of the interrogation techniques would be halted. By the afternoon, Haynes had confirmed that Rumsfeld had suspended his authorization for the techniques. |481|

Following the suspension, Rumsfeld established a working group of military and civilian lawyers to review the techniques. Before the working group could draw conclusions, however, their review was circumvented by a memorandum from John Yoo in OLC that constrained the group's ability to independently assess the legality of many of the proposed interrogation techniques. |482| While strongly objecting to the restrictions imposed by the OLC memorandum, the working group nonetheless produced a draft report that concluded that many of the originally approved techniques were legal. Mora cautioned Haynes, however, that the report was deeply flawed because of its reliance on the OLC memorandum, and recommended that the report be kept in draft form. |483| Despite Mora's warning, in April 2003 Rumsfeld signed the draft report of the working group, without the knowledge of its members, and once again authorized the use of enhanced interrogation techniques at Guantanamo. |484|

Shortly thereafter, on April 16, Rumsfeld issued a DoD Directive regarding Counter-Resistance Techniques in the War on Terrorism, which approved the use of a set of twenty-four techniques in the interrogations of unlawful combatants held at Guantanamo Bay. Among the approved techniques were "sleep adjustment," which the Directive explicitly noted was "NOT sleep deprivation"; environmental manipulation, which the Directive explained could be considered inhumane in some countries; dietary manipulation; and many specific methods of questioning. Four of these techniques–incentives or removal of incentives, including religious items; pride and ego down; "Mutt and Jeff or good cop-bad cop teams; and isolation–required that an interrogator assess whether the use of the technique is required by military necessity and give advance notification to the Secretary of Defense. These four techniques were identified as potentially inconsistent with the Geneva Convention protections applicable to prisoners of war. |485|

After Rumsfeld's re-authorization, interrogators resumed the use of enhanced techniques at Guantanamo. |486| In June 2003, the Department of Defense issued a statement to Senator Patrick Leahy asserting that all interrogations, "wherever they may occur," are consistent with the U.S. Constitution. |487|

In the first several months of 2003, detention facilities in Iraq and Afghanistan also began developing interrogation policies that incorporated many of the enhanced techniques first approved for use at Guantanamo. |488| In August, a team from the Guantanamo Joint Task Force visited Iraq to conduct an assessment of the interrogation operations within Central Command's area of responsibility. Although the Iraq Survey Group, charged with conducting the search for weapons of mass destruction in Iraq, did not fully accept the "hard line approach" recommended by the assessment team, the Combined Joint Task Force-7, charged with coordinating all military operations in Iraq, did incorporate some of the techniques recommended by the Guantanamo assessment team into its policies and procedures. |489| In September 2003, JPRA also sent a delegation to Iraq to provide "offensive" SERE training to the Special Mission Unit Task Force, which conducted interrogations of detainees deemed to be high value targets. |490| While in Iraq, the JPRA team was authorized to participate directly in interrogations and to use the full range of SERE school physical pressures. |491| When friction began to develop between the JPRA team and the Task Force staff regarding whether SERE techniques complied with the Geneva Conventions, the decision was made to pull the JPRA delegation out. |492| However, the visit of the JPRA team, in combination with the dissemination of the working group report and the visit of the team from the Guantanamo Joint Task Force, was sufficient to introduce many of the enhanced tactics to interrogation operations in Iraq.

H. Continued Involvement of Mitchell and Jessen

During 2002 and 2003, as Mitchell and Jessen continued to facilitate interrogations at CIA black sites, concerns related to their dual roles as interrogators and psychological evaluators emerged. Mitchell stated that neither he nor Jessen ever performed a fitness for assessment evaluation on a detainee that they subsequently interrogated. |493| However, the Senate Select Committee on Intelligence found evidence suggesting otherwise. In January 2003, Jessen traveled to a CIA black site to assess the suitability of continuing to use enhanced interrogations against Abd al-Rahim al-Nashiri, whom two interrogators had deemed cooperative. |494| At least one person raised concerns about Jessen both conducting the psychological interrogation assessment and carrying out the interrogation. |495| In June 2003, Mitchell and Jessen were deployed to a black site, where Khalid Sheikh Mohammed was held, to interrogate Mohammed and "assess [his] 'psychological stability' and 'resistance posture.'" |496| During this interrogation, Mohammed was waterboarded at least 183 times over the course of fifteen separate sessions. |497| A psychologist in the CIA's Office of Medical Services ("OMS") objected to the conflict of interest presented by this dual role, and stated that "no professional in the field would credit [Mitchell and Jessen's] later judgments as psychologists assessing the subjects of their enhanced measures." |498|

Throughout 2003 and early 2004, the CIA continued to take detainees into custody at various detention facilities and to subject them to enhanced interrogation techniques, at times without authorization from CIA Headquarters or in ways that diverged from the authorization. |499| On July 29, 2003, the CIA secured oral concurrence from the Department of Justice that "certain deviations are not significant" to the analysis underlying the OLC legal opinions. |500|

In early 2003, the CIA's Office of the General Counsel began to express concerns to National Security Council, White House, and DOJ personnel that the Bush Administration's statements about the "humane" treatment of detainees might be inconsistent with the CIA's interrogation program. |501| The CIA began to discuss with personnel from DOJ, DoD, and the White House whether they could represent that the treatment of detainees complied with constitutional standards in the Fifth, Eighth, and Fourteenth Amendments, and in June the General Counsel of DoD represented to Senator Patrick Leahy that it was U.S. policy to comply with these standards. |502| In July 2003, as the White House continued to make statements indicating that detainees received "humane" treatment, the CIA asked for a reaffirmation of support for the CIA's policy of using enhanced interrogation techniques. While the request was pending, the CIA began using only "standard" interrogation techniques, which according to the CIA did not involve "significant physical or psychological pressure," |503| rather than enhanced interrogation techniques. |504| The National Security Council did not consider it necessary to have a full Principals Meeting to reaffirm the program. |505|

In January 2004, under pressure from the ICRC, the CIA reduced the number of detainees held in its custody by transferring 25 to the custody of the U.S. military or foreign governments and releasing an additional five detainees. |506| Several months later, Deputy Secretary of Defense Paul Wolfowitz refused to support the CIA's position that continuing to conceal detainees from the ICRC was a national security imperative, and instead believed that it was appropriate to give the ICRC full notification regarding the detainees held in CIA custody. |507|

Meanwhile, the CIA Inspector General began circulating a draft of a Special Review of the CIA's Detention and Interrogation Program, finalized in May 2004. The Special Review identified several matters of concern, including divergences between the techniques authorized and their use in practice, |508| the use of unauthorized techniques, and oversight problems. |509| The Special Review report also recommended that the CIA conduct a review of the effectiveness of the CIA's interrogation techniques. The Inspector General clarified that the recommendation did not contemplate the CIA engaging in "additional, guinea pig research on human beings. What we are recommending is that the Agency undertake a careful review of its experience to date in using the various techniques and that it draw conclusions about their safety, effectiveness, etc., that can guide CIA officers as we move ahead." |510| When National Security Advisor Condoleeza Rice posed similar questions to the CIA about the effectiveness of the enhanced techniques in November and December 2004, the CIA responded that "an effectiveness review was not possible." |511| In March 2005, the Director of the CIA's CTC proposed establishing a "blue ribbon commission" to study the enhanced interrogation technique program, but the commission concluded that there was no objective way to assess the efficacy of the interrogation techniques used by the CIA. |512|

In May 2004, at around the same time that the CIA's Inspector General issued his report and shortly after reports of abuses at Abu Ghraib became public, the Office of Legal Counsel informed the CIA that it had never formally opined on the constitutionality of the CIA's enhanced interrogation techniques, and expressed concern that the CIA's practices diverged from the techniques described in the August 1, 2002 memorandum. |513| In late May, CIA Director George Tenet suspended the CIA's use of both "enhanced" and "standard" interrogation techniques, pending approval from the OLC. |514|

On June 4, 2004, after DOJ refused to render a written opinion confirming that the CIA interrogation program remained legal, CIA Director George Tenet directed an immediate suspension of the use of interrogation techniques against detainees. |515| Nonetheless, the CIA continued to seek approval for the use enhanced techniques against specific detainees. In July, the National Security Council granted approval for the use of enhanced interrogation methods, with the exception of waterboarding, against a member of al Qaeda suspected to have knowledge of plans to bomb key targets during the 2004 presidential election. |516| In addition to that detainee, the CIA sought and was granted approval to use enhanced techniques against two other detainees during the remainder of 2004. |517| In 2005, the CIA continued to use enhanced interrogation techniques against detainees on an individualized basis. For example, in May 2005, CIA Director Porter Goss approved the use of enhanced interrogation techniques against a detainee suspected of holding the third most important position in al Qaeda. |518| In September, the CIA took custody of two additional detainees from the DoD, and used enhanced techniques during their interrogations. |519| However, beginning in the fall of 2004, the pace of CIA interrogations slowed as the CIA began considering an "end game" to relieving itself of detainee custody. |520| In May 2005, the CIA again suspended use of enhanced interrogation techniques, and in February 2006, the Agency informed the National Security Council that it would not seek continued use of all of its techniques. |521|

Between 2005 and January 2009, when President Obama rescinded authorization for the use of enhanced techniques, the CIA took custody of only six new detainees. |522| In early January 2006, Secretary of Defense Donald Rumsfeld made the formal decision not to accept additional CIA detainees at the Guantanamo Bay military base, |523| and by September 2006, the CIA had transferred all detainees remaining in its custody to either third party countries or DoD custody. |524| However, after that point, the CIA continued to accept custody of a small number of detainees, |525| and in spring 2007, after passage of the Military Commissions Act, the CIA developed a modified enhanced interrogation program for use on the few detainees remaining in its custody. |526| The CIA took custody of its final detainee in 2007, and after Mitchell and Jessen briefed Secretary of State Condoleeza Rice, in early July she granted approval for the CIA to use six enhanced techniques: sleep deprivation, dietary manipulation, facial grasp, facial slap, abdominal slap, and attention grab. |527| The interrogation of the last detainee in the CIA's detention and interrogation program ended in December 2007. |528|

In January 2009, Obama prohibited use of interrogation techniques other than those found in the Army Field Manual. Only a few months later, the CIA terminated its contract with Mitchell Jessen & Associates. |529|

I. Evolution of the BSCT Role

As the Bush Administration's counterterrorism policies continued, the DoD developed clearer boundaries and guidelines for the military personnel stationed at Guantanamo. Sidley's information about this evolution comes from Larry James and Debra Dunivin, military psychologists who were stationed with a BSCT between 2003 and 2005. Dunivin said that over time, the command structure at Guantanamo solidified to the point that psychologists stationed to Guantanamo operated in one of two chains of command, defined by the mission. Psychologists assigned to Guantanamo as healthcare providers, either to the servicemen stationed on the base or to the detainees, worked in the medical chain of command, which reported directly up through medical personnel to the Surgeon General of the Army. On the other hand, psychologists assigned to Guantanamo to assist in the intelligence mission worked in the intelligence or detention commands, which reported up through operational personnel, most of whom were not healthcare professionals. The BSCTs teams working at Guantanamo were in the latter group as of 2004, and operated outside of the medical command. |530|

However, when the first psychologists began to arrive at Guantanamo in 2002 there was no structure in place to guide them. Initially, there was no "firewall" between treatment personnel and interrogation teams, and psychologists moved in and out of both roles. |531| For example, in an interview with Sidley, Albert Shimkus, the commander of the hospital at Guantanamo, who was charged with credentialing healthcare providers, explained that several BSCT members in 2002 and 2003 came to him seeking credentials to act in a healthcare role, though he stated unequivocally that he never granted such approval. |532| It was only as the Army began to provide guidance through Standard Operating Procedures ("SOP") for the Guantanamo BSCT in November 2002, that the treatment and intelligence roles were separated. The 2002 SOP described several "mission essential tasks," including consulting on interrogation techniques, developing behavior management plans, and liaising between intelligence and medical personnel to describe the implications of medical diagnoses and treatments for the interrogation process. |533|

Dunivin said that as of January 2003, when Col. Larry James deployed to Guantanamo to replace Leso as a BSCT member, there was not yet any formalized training in place. James explained that when he arrived, Leso had already convinced the commanders that rapport-building techniques were superior to abusive tactics, and James was able to expand on the progress Leso had already made to end the abuses at Guantanamo. |534| James said that he remained at Guantanamo until May 2003, when he was replaced by Maj. Diane Zierhoffer.

Behavioral scientists were also used to address abusive tactics that had begun to spread to military facilities in Iraq and Afghanistan. In late 2003, military police and CIA personnel at Abu Ghraib engaged in a consistent pattern of human rights abuses against detainees. As reports of prisoner abuses filtered back to the military command, a team from JPRA was dispatched to Iraq to advise regarding interrogation policies. |535| After reports of these abuses broke to the public in April 2004, Larry James deployed to Abu Ghraib as director of the Behavioral Science Unit. He returned in November 2004 after he suffered injuries during an attack on his convoy. |536|

Dunivin said that in the fall of 2004, she deployed to Guantanamo as a BSCT psychologist, where she remained until the fall of 2005. During Dunivin's deployment, the Department of Defense issued a supplemental policy memorandum for BSCTs. The supplemental policy reiterated many of the mission essential tasks from the first SOP, but elaborated that BSCTs were not only to provide consultation to interrogation staff but also to "monitor[] interrogations and other staff-detainee interactions." |537| Dunivin said that the Army did not provide formalized training for BSCT psychologists until after her return in 2005. |538|

On November 3, 2005, the Department of Defense issued Directive 3115.09 relating to "DoD Intelligence Interrogations, Detainee Debriefings and Tactical Questioning" to consolidate existing policies that required humane treatment during all intelligence interrogations and debriefings. |539| The Directive explicitly separated the BSCT and medical provider role, stating that "[t]hose who provide such advice [to personnel performing interrogations] may not provide medical care for detainees except in an emergency." |540|

Although the CIA did not utilize BSCTs, it used physicians and psychologists to support interrogations in a manner similar to the DoD. Mitchell explained that at least one, and often several, medical professionals were present for every interrogation overseen by the CIA. |541| However, the CIA did not undertake the same process of training and educating psychologists. Mitchell said that the CIA was not as concerned with training and ethics because it did not face the same set of circumstances as DoD, which oversaw many young psychologists early in their careers. |542| He stated that DoD was genuinely interested in adhering to the Ethics Code and was seeking clarity about its guidelines, whereas the CIA would not have changed its operational decisions based on the ethical statements of a professional association. |543|

J. Department of Defense Research Policy

Critics have argued that legal and policy changes by DoD in the period immediately after 9/11 permitted DoD to conduct human subjects research on detainees without their informed consent and without oversight from Congress or Institutional Review Boards ("IRB"). The critics allege that APA, by softening informed consent protections in the Ethics Code and encouraging research in the PENS report, permitted psychologists to take full advantage of the weakened legal protections and participate in research programs run under the auspices of DoD or the CIA. Taken together, it seems likely that the exceptions in the Common Rule and the definitional changes in the Wolfowitz Directive broadened opportunities for DoD to conduct research on detainees subjected to interrogations. However, there is no evidence that APA acted to facilitate psychologists' participation in such research, if it occurred. |544| As discussed above, the changes made to the research standards in the APA Ethics Code occurred well before the September 11 terrorist attacks, and thus could not have been intended to facilitate research on detainees held as part of the national security policies initiated in response to the attacks. Therefore, although the critics may be correct that DoD policy changes in the period shortly after 9/11 permitted DoD to conduct research on detainees, Sidley has identified no evidence that APA acted to support or conduct such research.

Our analysis on this topic confirmed that, at the same time that the CIA and DoD were developing their interrogation programs, a series of nuanced changes to domestic law and Department of Defense policy broadened the scope of permissible human subjects research. Federal policy on human subjects research is grounded in the Common Rule, a uniform set of regulations relating to the protection of human subjects in biomedical or behavioral research. The Common Rule developed out of the 1947 Nuremberg Code and the 1978 Belmont Report, produced by the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research. Following the release of the Belmont Report, the Department of Health and Human Services began revising and expanding the protections found in the Nuremberg Code and Belmont Report, and codifying these changes in the federal regulations. |545| In 1991, 15 federal departments and agencies, including the Department of Defense, adopted the Common Rule in their respective federal regulations.

The Common Rule applies to all research involving human subjects conducted or supported by any federal department or agency, including research conducted by federal civilian employees or military personnel. |546| It protects human subjects by requiring IRB review and approval of proposed human subjects research as part of an effort to minimize risk, ensure confidentiality, and protect vulnerable populations. It also requires informed consent from all human subjects. However, the protections of the Common Rule are not absolute: exceptions and modifications may be made to its provisions by department or agency heads, if deemed administratively appropriate, |547| and these same department and agency heads "retain final judgment as to whether a particular activity is covered" by the Common Rule at all. |548|

Generally, the informed consent component of the Common Rule requires that "[e]xcept as provided elsewhere in this policy, no investigator may involve a human being as a subject in research covered by this policy unless the investigator has obtained the legally effective informed consent of the subject or the subject's legally authorized representative." |549| However, informed consent requirements may be waived by an IRB provided that it finds that the waiver would not be harmful to the subjects and the research could not practicably be carried out without the waiver. |550| Thus, the DoD had ample discretion to exclude certain activities from the ambit of the Common Rule, even apart from any legal or policy changes that occurred in the months after 9/11.

On December 28, 2001, the 2002 Defense Appropriations Act amended 10 U.S.C. 980 to permit the Secretary of Defense to waive the informed consent requirement in experimentation on human subjects "with respect to a specific research project to advance the development of a medical product necessary to the armed forces if the research project may directly benefit the subject and is carried out in accordance with all other applicable laws." |551| Only days later, on January 10, 2002, as President Bush signed into law a supplemental appropriations act for DoD, he issued a signing statement regarding the Act's requirement for prior congressional approval before funding a special access program:

    The U.S. Supreme Court has stated that the President's authority to classify and control access to information bearing on national security flows from the Constitution and does not depend upon a legislative grant of authority. Although 30-day advance notice can be provided in most situations as a matter of comity, situations may arise, especially in wartime, in which the President must promptly establish special access controls on classified national security information under his constitutional grants of the executive power and authority as Commander in Chief of the Armed Forces. |552|

Critics have read this statement as a reservation of executive discretion with respect to notifying congressional committees regarding the initiation of military and intelligence experiments on human subjects.

On March 25, 2002, the Department of Defense issued Directive Number 3216.2 (the "Wolfowitz Directive"), relating to "Protection of Human Subjects and Adherence to Ethical Standards in DoD-Supported Research." The Wolfowitz Directive reissued a 1983 version of the same Directive, and incorporated many of the same provisions. The 2002 version amended the earlier version by supporting the implementation of Section 980 and 32 C.F.R. Part 219, which contains the DoD statement of the Common Rule. In many ways, the Wolfowitz Directive adopted as DoD policy a set of very broad protections for human subjects of research. For example, although many departments adopted only subpart A of the Common Rule, DoD adopted additional subparts related to research on vulnerable populations. |553| One of these subparts imposed additional protections in biomedical and behavioral research that used prisoners as subjects. The subpart defines "prisoner" as "any individual involuntarily confined or detained in a penal institution. The term is intended to encompass individuals sentenced to such an institution under criminal or civil statute, individuals detained in other facilities by virtue of statutes or commitment procedures which provide alternatives to criminal prosecution or incarceration in a penal institution, and individuals detained pending arraignment, trial, or sentencing." |554| Although no reference to other specific categories of prisoners appears in the Common Rule, the Wolfowitz Directive adds that "[t]he involvement of prisoners of war as human subjects of research is prohibited." |555| This addition, found only in the Department of Defense policy codifying the Common Rule, is logical in light of the fact that most of the other agencies that adopted the Common Rule would have no interaction or involvement with prisoners of war.

Some critics have alleged that this statement demonstrates that the DoD intended to exclude Guantanamo detainees from the class of people enveloped by the protections for human subjects. They argue that detainees legally were not considered prisoners of war, in light of contemporaneous orders classifying detainees as enemy or unlawful combatants, and thus would not fall within the scope of the Directive. |556| In addition, it seems that Guantanamo detainees might not qualify as "prisoners" under the Common Rule definition, which describes individuals held by statute at penal institutions; Guantanamo is not a penal institution and the detainees held there were captured during armed conflict rather than detained pursuant to federal statute. It seems fair to conclude that, had the DoD wanted to codify the broadest protections possible, it could have explicitly extended research protections to additional classes of prisoners, including detainees held as "unlawful combatants" at Guantanamo. However, it also seems unlikely that the use of the term "prisoners of war" represents an intentional choice to exclude detainees from the policy granting protections to the subjects of human research; rather, it is more likely that the DoD simply adapted the language already existing in the 1983 version of the Directive, which likewise prohibited "[t]he use of prisoners of war as human subjects of research." |557| Moreover, the specific provision relating to prisoners of war has little effect in the context of the Directive as a whole, because the Directive applies to any research "with a human being," which includes detainees regardless of their status as prisoners of war or unlawful combatants. |558| Therefore, despite its reference to prisoners of war, it seems that the overall effect of the Wolfowitz Directive was to broaden protections for human subjects of research.

Although the Wolfowitz Directive seemed on its face to extend a generally broad range of protections to human subjects of research, the Directive also subtly limited the scope of individuals who were entitled to such protections. First, the Directive broadened the set of circumstances under which the requirement of informed consent could be waived. The Common Rule itself contains many exceptions to the informed consent requirement, preserving to the heads of departments the authority to determine that an activity does not constitute research on human subjects, and thus does not fall within the policy encapsulated by the Common Rule. |559| The Wolfowitz Directive incorporated these exceptions when it adopted the Common Rule as policy, while also including a provision that permits the Head of a DoD Component to waive the informed consent requirement "with respect to a specific research project to advance the development of a medical product necessary to the Armed Forces if the research project may directly benefit the subject and is carried out in accordance with all other applicable laws and regulations." |560| This language is identical to that found in the 2002 Defense Appropriations Act. The reference to medical products suggests that the Wolfowitz Directive's implementation of Section 980 does nothing to expand the scope of human subjects research related to interrogations, and thus it is unlikely that this aspect of the Directive facilitated research on detainee interrogations.

Although it seems unlikely that the codification of Section 980 expanded the scope of permissible human subjects research, the Wolfowitz Directive contained a separate provision that permits the Director of Defense Research and Engineering to "grant exceptions to policy under this Directive if justified by special circumstances and consistent with law." |561| The 1983 version of the Directive contained a similar provision, which permitted heads of departments to submit requests for exceptions to the policy to the Under Secretary of Defense for Research and Engineering, |562| but the changes to the 2002 version seem to give the Director more expansive authority to carve out exceptions from the policy. It seems likely that the DoD would consider the war on terror to be a "special circumstance" that permits deviation from human research subjects protections, and that the memoranda produced by the Department of Justice later in 2002 provided the legal authority to grant an exception for research on interrogations. In combination with the many exceptions found in the Common Rule, the Wolfowitz Directive's exceptions to the informed consent requirement gave the Department of Defense sufficient leeway to dispense with informed consent and conduct research on detainee interrogation.

Another limitation on the broad protections encompassed in the Wolfowitz Directive is found in the definition of research itself. In the Common Rule, research is defined as "a systematic investigation, including research development, testing and evaluation, designed to develop or contribute to generalizable knowledge. Activities which meet this definition constitute research for purposes of this policy, whether or not they are conducted or supported under a program which is considered research for other purposes." |563| The 1983 version of the Directive parrots the definition of research found in the Common Rule. However, in the 2002 version of the Directive, the DoD made a notable change and defined research as "an intervention or interaction with a human being for the primary purpose of obtaining data regarding the effect of the intervention or interaction. Examples of interventions or interactions include, but are not limited to, a physical procedure, a drug, a manipulation of the subject or subject's environment, [and] the withholding of an intervention that would have been undertaken if not for the research purpose." |564| The requirement that collection of data be the "primary purpose" of an activity represents a notable change from the broad Common Rule definition, which contemplates that activities and programs whose principal purpose is something other than research might nonetheless present an incidental opportunity for researchers to obtain and evaluate data. It seems likely that DoD would consider the primary purpose of the interrogation program to be the extraction of information in the service of national security. Thus, even if data were collected during interrogations for the purpose of deriving generalizable knowledge, that activity might not be considered research under the Wolfowitz Directive.

It seems likely that, had DoD wished to conduct research on the interrogations of detainees held in its custody, the Common Rule, as supplemented by the Wolfowitz Directive, would have given commanders ample leeway to authorize such research. However, Sidley has identified no evidence that APA coordinated with DoD to facilitate or conduct research on detainees, or that APA amended its Ethics Code or issued policy statements permitting its members to participate in such research.

K. Public Awareness of Abusive Interrogations

In late 2002, the first reports of secret CIA interrogation centers or "black sites" began to circulate at the major news outlets. On December 26, 2002, Dana Priest and Barton Gellman reported in the Washington Post that the CIA was running a clandestine interrogation site near Bagram air base where detainees were "held in awkward, painful positions and deprived of sleep with a 24-hour bombardment of lights–subject to what are known as 'stress and duress' techniques." |565| The article continued that detainees who cooperated were "rewarded with creature comforts," while those who did not were "rendered" to foreign countries, such as Jordan, Egypt, and Morocco, where the use of torture was well-documented.

Reports of detainees suffering physical abuse while in U.S. custody and after rendition to other nations continued to emerge over the next several months. In March, the New York Times reported that several individuals held in American custody claimed that they "had been made to stand hooded, their arms raised and chained to the ceiling, their feet shackled, unable to move for hours at a time, day and night," and a commander of coalition forces in Afghanistan "acknowledged that prisoners had been made to stand for long periods," though he denied that they were chained to the ceiling. |566| Several days later, another article reported that intelligence officials "acknowledged that some suspects had been turned over to security services in countries known to employ torture," and described the case of one such detainee who was "subjected to sleep and light deprivation, prolonged isolation and room temperatures that varied from 100 degrees to 10 degrees." |567| In May, the New York Times published another article that identified a number of detainees who claimed to have been beaten or subjected to electric shock at the hands of American and British soldiers. |568|

On November 1, 2003, the Associated Press published a report documenting the inhumane treatment of detainees at Abu Ghraib and other Iraqi prisons. Based on accounts by released detainees, the article reported that detainees were beaten, exposed to the sun as punishment, and deprived of water for drinking and washing. Several former detainees described a common punishment for minor infractions called "'The Gardens'–a razor-wire enclosure where prisoners were made to lie face down on the burning sand for two or three hours, hands bound." |569| The major news outlets did not pick up on the AP story, even as rumors began to swirl that American soldiers had posed for photographs with nude prisoners. |570|

On March 3, 2004, Salon carried a story by Jen Banbury titled "Guantanamo on Steroids," which repeated earlier reports that "[s]ome Iraqis who have been held as security detainees claim they were subjected to ill treatment, including beatings, sleep deprivation and psychological abuse." Banbury, citing a member of a faith-based peace group working with detainees and their families, described accounts from former detainees who claimed they were "hooded, handcuffed and left outside for hours on end (sometimes in the rain) at bases where they are initially taken for interrogation. Accusations of beatings during interrogations are also common." Another detainee described "psychological abuse," as "one of his interrogators threatened to take pictures of his wife, mother and sister naked and show them on satellite as a sex film." |571|

On April 28, 2004, 60 Minutes II broadcast graphic photos of Iraqi detainees being abused and humiliated. Many of the photographs depicted guards sexually humiliating detainees, who were stripped naked and forced to simulate sex acts on other detainees. Other photographs showed the battered bodies of two detainees who had died in custody.

Only two days later, the New Yorker carried the first of Seymour Hersh's articles about the abuses at Abu Ghraib. |572| In his article, "Torture at Abu Ghraib," Hersh quoted from the newly released Taguba Report, which documented that between October and December 2003, military and intelligence personnel engaged in "numerous instances of 'sadistic, blatant, and wanton criminal abuses,'" including:

    Breaking chemical lights and pouring the phosphoric liquid on detainees; [t]hreatening detainees with a charged 9mm pistol; [p]ouring cold water on naked detainees; [b]eating detainees with a broom handle and a chair; [t]hreatening male detainees with rape; [a]llowing a military police guard to stitch the wound of a detainee who was injured about being slammed against the wall in his cell; [s]odomizing a detainee with a chemical light and perhaps a broom stick, [and] [u]sing military working dogs to frighten and intimidate detainees with threats of attack, and in one instance actually biting a detainee.

The Taguba Report quoted in the article had been completed on February 26, 2004, and included descriptions of additional abusive acts committed by military police personnel:

    Punching, slapping, and kicking detainees; jumping on their naked feet; [v]ideotaping and photographing naked male and female detainees; [f]orcibly arranging detainees in various sexually explicit positions for photographing; [f]orcing detainees to remove their clothing and keeping them naked for several days at a time; [f]orcing naked male detainees to wear women's underwear; [f]orcing groups of male detainees to masturbate themselves while being photographed and videotaped; [a]rranging naked male detainees in a pile and then jumping on them; [p]ositioning a naked detainee on a MRE Box, with a sandbag on his head, and attaching wires to his fingers, toes, and penis to simulate electric torture; [w]riting "I am a Rapest" [sic] on the leg of a detainee alleged to have forcibly raped a 15-year old fellow detainee, and then photographing him naked; [p]lacing a dog chain or strap around a naked detainee's neck and having a female Soldier pose for a picture; [a] male MP guard having sex with a female detainee; [u]sing military working dogs (without muzzles) to intimidate and frighten detainees, and in at least one case biting and severely injuring a detainee; [and] [t]aking photographs of dead Iraqi detainees. |573|

Throughout May and June 2004, the major media outlets turned their focus to reporting on the Abu Ghraib abuses. On May 5, 2004, the New York Times published a story in which Maj. Gen. Geoffrey D. Miller "defended practices like depriving prisoners of sleep and forcing them into 'stress positions' as legitimate means of interrogation, noting that they are among 50-odd coercive techniques sometimes used against enemy detainees." |574| On May 21, 2004, the Washington Post identified fresh allegations of abuse at the Abu Ghraib prison, including allegations that prisoners were "ridden like animals, sexually fondled by female soldiers and forced to retrieve their food from toilets." |575| Although it is not clear that all of these abuses occurred during the course of interrogations, there was sufficient information by the summer of 2004 to put the American public on notice that a number of abusive tactics, including beating, sleep deprivation, and sexual humiliation, were being used against detainees taken pursuant to the war on terror.

On June 7, 2004, the Wall Street Journal published a story describing the draft report produced by the working group of military and civilian lawyers created after Mora forced Rumsfeld to rescind authorization for the use of enhanced interrogation techniques. The Journal reported:

    The draft report, which exceeds 100 pages, deals with a range of legal issues related to interrogations, offering definitions of the degree of pain or psychological manipulation that could be considered lawful. But at its core is an exceptional argument that because nothing is more important than 'obtaining intelligence vital to the protection of untold thousands of American citizens,' normal strictures on torture might not apply. |576|

The article added that the working group's report elaborated on the Bush administration's position of the president's expansive power to wage war, unbound by Congress or the courts; therefore, the report concluded, the anti-torture statute cannot be applied to acts undertaken pursuant to the president's order as commander in chief. Accordingly, the article continued, the report provides a Nuremberg defense to individuals acting under military orders, in addition to outlining defenses based on necessity and self-defense. |577|

The following day, on June 8, the Washington Post broke the news that the Department of Justice had produced a series of memoranda in 2002 and 2003 that advised the White House that torture of captured al Qaeda terrorists could be both legal and justified "to prevent further attacks on the United States by the Al Qaeda terrorist network." The article quoted the 2002 memoranda as stating that interrogation techniques must be similar to severe beatings, threats of imminent death, rape, or electric shocks to genitalia to constitute torture. Moreover, the memoranda stated that psychological techniques based on "purely mental pain or suffering" must "result in significant psychological harm of significant duration" to constitute torture. The article also described the analysis of specific intent contained in the memoranda:

    Of mental torture, however, an interrogator could show he acted in good faith by "taking such steps as surveying professional literature, consulting with experts or reviewing evidence gained in past experience" to show he or she did not intend to cause severe mental pain and that the conduct, therefore, "would not amount to the acts prohibited by the statute." |578|

On June 13, the Washington Post published copies of the memoranda. Shortly after, Assistant Attorney General for the Office of Legal Counsel Jack Goldsmith, withdrew the 2002 and 2003 memoranda at issue. |579|


II. APA'S INITIAL COUNTERTERRORISM RESPONSE: SEPTEMBER 2001-NOVEMBER 2001

A. The Board of Directors' Response

Sidley heard from numerous witnesses that, immediately after 9/11, APA staff and governance began to identify ways that psychologists and psychological science could contribute to efforts to cope with the aftermath of the attacks and the nation's efforts to combat terrorism. On September 19, 2001, the Board of Directors organized a conference call for the chairs of the various APA committees to discuss "psychology's role in addressing the trauma of the terrorist's [sic] attacks" and "to help identify experts who can address the research and knowledge that we have to offer in response to the decisions and actions that face our nation." |580|

Shortly after the conference call, the Board of Directors created a Subcommittee on Psychology's Response to Terrorism, with the mission of identifying the role of psychology in addressing both the threat and the impact of terrorism. The Science, Practice, and Education Directorates staffed the Subcommittee, with Science Directorate taking the lead. |581| Initial efforts in the Practice Directorate focused on the formation of a Disaster Relief Network to provide counseling services and "emotional first-aid" to families of victims, rescue workers, and others who experienced loss as a result of the terrorist attacks. |582|

The Subcommittee also began assembling lists of psychological experts who might contribute research on relevant topics and networking with government policymakers to determine what contributions might be of interest to critical government agencies. |583| Members of the Subcommittee also participated in events designed to educate APA membership on the contributions of psychological science to counterterrorism efforts. For example, in early February 2002, Ron Levant, the Chair of the Subcommittee, spoke at a continuing education seminar in Orlando, Florida titled "The Aftermath of Terror: Psychology's Role." |584|

As part of APA's outreach efforts to government personnel, staff from the Science Directorate began networking with psychologists in the government and compiling a list of psychologists who could act as consultants on topics related to terrorism. |585| Staff in the Science Directorate said that Susan Brandon, who was then a visiting Senior Scientist, worked with Geoff Mumford and Heather Kelly, staff in the Government Relations Office within the Science Directorate, to reach out to personnel at the FBI, CIA, and other executive agencies and departments regarding the ways that psychology could contribute to the missions of those respective agencies.

B. Relationships with the Department of Defense

At the time of the September 11 terrorist attacks, APA maintained a healthy relationship with DoD, under the guidance of Heather Kelly and Geoff Mumford in the Science Government Relations Office. Kelly said that she maintained APA's research and advocacy portfolio with respect to DoD, and that as part of this position she tracked DoD research programs, particularly those research activities that involve behavioral science, and lobbied for funding for those programs. |586| For example, in the summer before 9/11, Kelly facilitated APA's participation in Department of Defense Hill Day, designed to urge policy makers to strengthen the DoD's science and technology research program for the upcoming fiscal year. |587| Kelly also maintained contacts with individuals who presented testimony on behalf of APA before Congress, drafting language touting APA's science advocacy efforts as "instrumental in heading off proposed cuts to military behavioral research programs," |588| and participated in the Coalition for National Security Research ("CNSR"), a broad-based group of universities, non-profit institutions and associations that advocated for Defense science and technology programs. |589|

Kelly explained that her interactions with DoD did not change after 9/11, as she continued to advocate for additional funding for DoD's research programs. |590| Kelly's email activity from the time period demonstrates that she continued to meet with the CNSR, |591| and to interact with psychologists in support of the its initiatives and goals. |592| Kelly and other Science Directorate staff also worked on initiatives internal to the APA designed to demonstrate to Congress the value of psychological science and the need for adequate funding to support DOD's behavioral science research. In November, Kelly and Mumford discussed "accelerat[ing] the schedule" for the science advocacy training workshop to be held in the spring and shifting the focus to contributions psychological science could make in the aftermath of 9/11. |593| Mumford also reached out to Mahzarin Banaji at Yale to discuss holding a House Science Committee hearing on the same topic in December 2001. |594| It is apparent that APA's advocacy on behalf of DoD research and relationships with DoD personnel extended well before 9/11, and continued to grow after the terrorist attacks, with an increased emphasis on behavioral research and psychological science related to counterterrorism efforts.

C. Developing Contacts with the FBI

Though they maintained strong relationships with DoD prior to 9/11, the Science Directorate staff said that at that time they were not aware of any significant professional contacts |595| APA had with operational psychologists at the FBI or CIA. |596| Sidley's only information regarding APA's initial contacts with the FBI comes from Susan Brandon. Brandon, a visiting Senior Scientist at APA, stated that when she attempted to reach out to the FBI in the weeks after 9/11, she "cold-called" Steve Band, who was head of the Behavioral Science Unit. |597| Brandon told Sidley that Band invited her to Quantico for a meeting on October 24, 2001, and that at that meeting he said that she could be useful. Brandon added that, after this initial meeting, she arranged for a number of academics to speak to the FBI, including Ian Lustick, an expert on modeling risk and decision making from the University of Pennsylvania; George Bonanno, a psychologist who specializes in resilience and grief recovery from Columbia University; and Brendan O'Leary, an economist and political scientist from the University of Pennsylvania. |598|

Although there is no evidence to illuminate how Brandon identified these individuals to speak to the FBI, it seems likely that Brandon connected with the academics from the University of Pennsylvania through Martin Seligman, the former president of APA whose theory of "learned helplessness" inspired Mitchell and Jessen's interrogation program. Seligman was a professor of psychology at the University of Pennsylvania, where he co-founded the Solomon Asch Center for the Study of Ethnopolitical Conflict with Peter Suedfeld of the Canadian Psychological Association.

D. Broadening Relationships with the CIA

APA staff said that they also had no significant professional contacts in the CIA prior to 9/11, and it is not clear how members of the Science Directorate first met Kirk Hubbard in the Operational Assessment Division ("OAD") of the CIA. However, it seems likely that one of the current or former presidents of APA who maintained a relationship with the CIA brokered the introductions. Geoff Mumford stated that APA staff likely met Hubbard and became involved with his unit in the CIA through an introduction facilitated by Philip Zimbardo or Joseph Matarazzo, |599| and Brandon also recalled that Zimbardo was supportive of their outreach efforts. |600|

1. Professional Standards Advisory Committee

Hubbard's relationship with Matarazzo, Zimbardo, and several other prominent psychologists likely developed out of a paid Professional Standards Advisory Committee ("Advisory Committee" or "PSAC") retained by the CIA, which met several times each year beginning in 2000 to advise Kirk Hubbard's Research & Analysis Branch within the OAD. |601| Hubbard chaired the Advisory Committee, whose members included Joseph Matarazzo, a former APA president, and Melvin Gravitz, a psychologist who had helped to "revolutionize" APA during the 1970s. |602| Also involved in the Advisory Committee, likely as a member or possibly as a consultant, was Ronald Fox, another former APA president. |603|

It is likely that James Mitchell served as a consultant to the Advisory Committee on at least a sporadic basis. Although Hubbard unequivocally stated that neither Mitchell nor Jessen was ever involved with the Advisory Committee, |604| Matarazzo recalled that Mitchell was a member of the Committee, and Fox said that Mitchell attended as many as half of the meetings. |605| Mitchell confirmed that he consulted and wrote some papers for the Committee. |606| Moreover, there is documentary evidence that Mitchell attended a meeting of the Advisory Committee in January 2002, at the same time that he and Jessen were preparing a report for the CIA's Office of Technical Services regarding the al Qaeda manual presumed to be a guide to resisting interrogations. |607| Therefore, Hubbard's assertion that James Mitchell had no involvement with the Advisory Committee is not credible.

That Mitchell consulted to the Advisory Committee, however, is not proof that the Committee convened to advise the CIA regarding its interrogation program. Sidley spoke with several members of the Advisory Committee, including Kirk Hubbard, Joseph Matarazzo, Ronald Fox, and James Mitchell, |608| and more than one member of the Committee explained that its purpose was to advise the CIA on the methodology for conducting operational assessments of personnel. |609| Hubbard stated that he contracted with Mitchell and Jessen to write some papers for him on topics related to assessments, |610| and Mitchell confirmed that the papers he wrote for the Advisory Committee related to surreptitious psychological profiling, intelligence and personality features, and asset identification, all subjects related to the topic of operational assessment. Matarazzo explained that the Committee continued to meet until 2004, when it "faded away" because the group had not been able to produce a good assessment tool. |611|

2. Operational Assessment Division's role in interrogations

Sidley's only insight into the organization and purpose of the CIA's Operational Assessment Division, where Hubbard operated as Chief of the Research and Analysis Branch, came through discussions with Hubbard, Mitchell, and other witnesses who worked with various branches of the CIA. Hubbard explained that the OAD's primary goal was to assess potential assets or informants for credibility, discretion, capability, and other performance metrics. Within OAD, the assessment branch, headed by Kirk Kennedy, conducted assessments of potential assets, while the analysis branch, headed by Kirk Hubbard, developed and improved the assessment methodology. |612|

Hubbard said that his work within OAD had absolutely no connection to interrogations, and that OAD was totally separate from the CIA's Counterterrorism Center ("CTC"). |613| Hubbard was aware of only two individuals in OAD who had any involvement in interrogations: Mike McConnell, an operational psychologist in a different branch of OAD, and Judy Philipson, |614| who did work on interrogations before joining Hubbard's Research and Analysis Branch. |615| Hubbard explained that he was introduced to Mitchell and Jessen through McConnell, and that he later introduced Mitchell and Jessen to Jim Cotsana, the Chief of Special Missions within the CTC. |616|

Hubbard stated that there was only one time that OAD engaged in activity related to interrogations. He recalled that, soon after 9/11, the Division Chief of the Operational Assessment Division received a request from Cotsana related to ethical complaints arising from the Office of Medical Services. According to another witness, physicians and psychologists within OMS were not "on board" with what was going on regarding interrogations, and felt that they were being cut out of the discussion. |617| Hubbard and Mitchell spoke during the course of Sidley's investigation, and Hubbard then clarified that Terry DeMay, who was the Chief of Psychology at OMS, "was berating Jim Mitchell about being involve[d]" in the interrogation program. Hubbard said that Cotsana then suggested obtaining an independent opinion from Mel Gravitz to respond to DeMay's "ethical concerns." |618|

Mitchell would neither confirm nor deny that DeMay was the individual who raised concerns about his participation in the interrogation program, but he clarified that the objections related to the involvement of psychologists, as professionals adept at human behavior and manipulation, and not to the use of enhanced interrogation techniques in the interrogation program generally. |619| Mitchell said that he suggested to the division head that the CIA seek an independent opinion regarding the ethics of psychologists being involved in interrogations, and soon after, Gravitz was approached to write the opinion. |620|

On February 13, 2003, Gravitz delivered an opinion titled "Ethical Cons[id]erations in the Utilization of P[s]ychologists in the Interrogation Process" to James Mitchell. |621| The opinion recites:

    Recently, some questions have been raised regarding the ethical implications of psychologists applying their skills by assisting in the interrogation process of certain persons who have been detained in the currently ongoing world-wide war against terrorism. . . .

    The following comments are based upon a review of the principles of the Ethical Code as they may be relevant to certain psychological services rendered by Agency staff psychologists and contractors, all of whom are required by regulation to be licensed. |622| In the interrogation of detainees, such services may include (1) acting as a consultant to officers who design and conduct interrogations, (2) acting as observers but not actually participating in the interrogations, and (3) participating in the interrogation process themselves. |623|

Gravitz identified a number of ethical standards that might be relevant to psychologists' involvement in interrogations, including conflicts between ethics and law (Standard 1.02), conflicts between ethics and organizational demands (Standard 1.03), management of alleged or possible ethical violations, boundaries of competence, providing services in emergencies (Standard 2.02), bases for professional judgments (Standard 2.04), |624| and cooperation with other professionals. He concluded:

    While the APA Ethics Code focuses primarily on concern for the individual (i.e., client or patient), it also recognizes that the psychologist has an obligation to the group of individuals, such as the Nation. The Ethics Code is in its essence a set of aspirations and guidelines, and these must be flexibly applied to the circumstances at hand. |625|

Mitchell said that Gravitz's opinion, though it did not give a definitive answer, satisfied his superior. |626|

3. Advisory Committee members' inquiries to APA members and staff

Several witnesses recalled discussions or interactions with members of the CIA Advisory Committee in the months after 9/11 that suggest that Committee members were involved in issues related to national security and interrogations. Brandon said that she observed Gravitz in a "huddle" with members of APA leadership, possibly including Kurt Salzinger, the Executive Director of the Science Directorate, to the side of a Board of Scientific Affairs ("BSA") meeting in October 2001. Brandon recalled discussing the meeting with Mumford, and coming away with the impression that the side discussion related to intelligence efforts. |627| Gravitz was not listed as being in attendance at the October 2001 meeting of the BSA, and the minutes of the meeting do not include any discussion of intelligence-related activities. |628|

Salzinger said that, also in the same timeframe shortly after 9/11, Matarazzo approached him, likely during a break at an APA meeting, with the idea that psychologists ought to be able to do something on the topic of interrogations because they had knowledge regarding how to ask people questions and persuade them to provide information. Salzinger said that Matarazzo's explanation made sense to him, and after this conversation he sent a note to Morton Ann Gernsbacher, the Chair of BSA, to ask if she was aware of psychologists and researchers who worked in the area of "getting information from people." Salzinger said that Gernsbacher rebuffed his request, and he did not pursue the idea any further. |629|

Other witnesses told Sidley that Matarazzo spoke to them about interrogations as well. Michael Wessells stated that Matarazzo approached him at a conference in July 2002 to ask about assisting the CIA, saying: "In this environment, things are different, and the CIA is going to need some help. Things may get harsh. We may need to take the gloves off." Wessells said that he responded that he was committed to human rights standards at the core of all of his activities, and rejected the idea of collaborating with the CIA, though he was not certain precisely what Matarazzo wanted. |630| Patrick DeLeon also stated that Matarazzo approached him to ask if he had gotten a call from the CIA because he was getting pressure about psychologists' role in interrogations. |631|

In an exchange that might have prompted Matarazzo's inquiries to other APA members, Matarazzo said that Hubbard once asked him, apart from the Advisory Committee, whether sleep deprivation constituted torture. Matarazzo said that he consulted with other psychologists and thought about his own experience before concluding that sleep deprivation is not torture on its own. Matarazzo said that he gave his opinion to Hubbard, and that Hubbard came back to him with a questionnaire that broke down the question about sleep deprivation into several parts. |632| Hubbard said that he could not recall this exchange, and that if it had happened it would have been an aside between him and Matarazzo, and not a topic to be raised with the Advisory Committee. |633| Matarazzo said that Hubbard did not ask him about any other interrogation techniques.

Although Sidley found no documentary evidence to support these witness statements, the collection of incidents strongly suggests that Gravitz and Matarazzo consulted with Hubbard on ethical issues related to interrogations. However, there is no evidence suggesting that either Gravitz or Matarazzo engaged in these activities with the knowledge or approval of anyone at APA. We have no reason to believe that APA staff knowingly assisted in the preparation of research or opinions for the CIA related to abusive interrogation techniques.


III. GROWING RELATIONSHIPS WITH GOVERNMENT AGENCIES: DECEMBER 2001 - FEBRUARY2002

A. Continued Science Directorate Outreach

By December 2001, the APA Board had taken emergency action to adopt a "Resolution on Terrorism," which resolved:

    [T]hat the American Psychological Association, an organization devoted to the promotion of health and well being, calls upon the psychology community to work toward an end to terrorism in all its manifestations; BE IT FURTHER RESOLVED THAT THE AMERICAN PSYCHOLOGICAL ASSOCIATION: [a]dvocates at the congressional and executive levels for increased use of behavioral experts and behavioral knowledge in dealing with both the threat and impact of terrorism; [and] [e]ncourages increased support for behavioral research that will produce greater understanding of the roots of terrorism and the methods to defeat it, including earlier identification of terrorists and the prevention of the development of terrorism and its related activities . . . . |634|

As part of the APA's advocacy mission, it continued to build relationships in the FBI, CIA, and other executive agencies. For example, several Science Directorate staff members recalled a meeting in late 2001 or early 2002 with members of the FBI's Behavioral Science Unit. Brandon said that she arranged the meeting at the FBI for Kurt Salzinger and other staff within the Science Directorate. Merry Bullock, the Associate Executive Director of the Science Directorate, attended the meeting and recalled that their hosts at the FBI led the group from APA on a tour of a village the FBI had constructed for running behavioral simulations of terrorist attacks. |635|

At about the same time, in January 2002, John Marburger, Director of the Office of Science and Technology Policy ("OSTP"), met with APA staff to discuss a comprehensive science and technology policy for countering terrorism. The OSTP is one of about twenty offices within the Executive Office of the President that advises the administration on policy issues related to all sciences, including physical sciences and social sciences. The proposed policy discussed at the January meeting involved the preparation of research agendas, including an agenda in the key area of "behavioral, social and institutional issues," and the assessment of government research programs to identify areas for improved interagency coordination. |636|

B. Seligman Gathering

In December 2001, Martin Seligman, a former president of APA credited with developing the theories of learned helplessness and positive psychology, hosted a meeting at his home for "an international group of sixteen distinguished professors and intelligence personnel" to discuss how America could respond to Islamic Extremism. The group included "experts in terrorism and related topics from psychology, political science, history, Islam, sociology, the CIA and the FBI." |637| Seligman said that this meeting was not at the request of any government agency, and was convened because he "wanted to send to the White House unsolicited recommendations to help the nation in a time of great need." |638|

At the close of the meeting, the group had made "six policy recommendations aimed at winning a victory that will lastingly contain global terrorism":

    Isolate Jihad Islam from Moderate Islam worldwide; [n]eutralize Saudi support for jihad Islamic fundamentalism worldwide; [p]olice the Arab Diaspora in Western Europe forcefully; [s]ubvert the social structure of terrorist organizations; [b]reak the link between the terrorists and the pyramid of sympathizers; [and] [b]uild American knowledge of Arab and Muslim culture and language. |639|

Seligman denied that there was a "single mention by anyone of interrogation, captives, or torture or any related subject" at the meeting, |640| and the summary document produced by the group does not reflect that discussion of any of these topics occurred. Indeed, Seligman said that he has never worked on interrogations or held a contract with the CIA or any other entity related to interrogations. |641|

Steven Band, Chief of the Behavioral Science Unit at the FBI attended the meeting, as did Kirk Hubbard, Chief of the Research and Analysis Branch in the Operational Assessment Division of the CIA, and James Mitchell, whose only listed affiliation was "CIA." |642| After communicating with the parties who attended this meeting, |643| we cannot say with any certainty how Hubbard and Mitchell came to be present. Seligman said that he did not know who had invited Hubbard, Mitchell, or Band, and he described all three as "almost totally silent throughout" the meeting. |644| Hubbard also said that he could not recall how he had been invited to this meeting, though he thought that Joseph Matarazzo had brokered his initial introduction to Seligman. Mitchell said that Hubbard had invited him to the meeting, though he did not know how Hubbard had received an invitation. |645| It seems most likely that Matarazzo introduced Seligman, a fellow former APA president, to Hubbard, whom he had worked with on the CIA's Advisory Committee, and that this introduction led to an invitation for Hubbard to attend the gathering at Seligman's home.

Communications between Steve Band and Geoff Mumford suggest that Band discussed Seligman's meeting with Susan Brandon and Mumford within days after it occurred, and that he encouraged them to brief Kurt Salzinger. |646| Band also seemed eager to share the report produced after the meeting, promising to show both Mumford and Brandon a copy of the "write-up" the next time he saw them, though he could not provide a copy. Band described the report to Mumford in provocative terms:

    Seligman's 'gathering' produced an extraordinary document that is being channeled on high (very high)... I did not get the impression from Seligman that it was intended for wide distribution or readership... some of the national strategies and supportive statements proposed by 'the gathering' are pretty intense; the authors may want their involvement to remain discrete. |647|

Band later confirmed, based on email traffic between Seligman and Brandon, that his "gut feeling about not releasing [Seligman's] product outside of its intended audience was on-point and . . . it may have discomforted [Seligman] to learn that Kirk [Hubbard] did." |648| Brandon assured Band that she had not distributed the Seligman paper, but indicated that it had sparked some "lively debate here." |649| During their interviews, both Brandon and Mumford stated that they did not believe they had ever seen the paper, |650| but it seems likely that Brandon did see the paper and discuss it with some of her colleagues in the Science Directorate.

Hubbard stated that Seligman met with Hubbard and his staff several more times after the initial meeting in Seligman's home. One of these meetings was with Hubbard and two psychologists on his staff, Judy Philipson and Liz Vogt, both of whom were married to attorneys in CTC. |651| Seligman confirmed that he met with Hubbard and a female lawyer at his home in April 2002, and they discussed Seligman's theory of learned helplessness at length in the context of how the theory might help "our people who are captured." |652| At another of these meetings, Hubbard stated that he, Mitchell, and Jessen met with Seligman in his home to invite him to speak about learned helplessness at the SERE school in Spring 2002. |653| As discussed above, Seligman said that he could not recall meeting with Mitchell or Jessen apart from the December 2001 meeting at his home. Rather, Seligman thought that he was invited to speak at the SERE school during the April 2002 meeting with Hubbard and a female lawyer. |654| However, after discussing the meeting with Hubbard during the course of the investigation, Seligman "surmise[d]" that there must have been an additional meeting in April with Mitchell and Jessen, and that it must have been at that meeting that he was invited to speak at the JPRA conference in May 2002. |655|

APA's critics have hypothesized that Seligman took a far more active role in supporting the CIA's interrogation program than the relatively tangential interactions described above. They point to the December 2001 meeting at Seligman's home and an email from Hubbard in March 2004 expressing gratitude for Seligman's help "over the past four years" |656| as evidence that Seligman was an active participant in supporting the CIA's interrogation program. Seligman and Hubbard had similar, though not identical, explanations for Hubbard's comment. Seligman explained that he had previously asked Hubbard about the email and that Hubbard had explained that he was referring to the pro bono lecture Seligman had given to the Navy SERE school in May 2002. |657| Hubbard said that he was "basically" thanking Seligman for hosting the meetings in his home in 2001. |658| Thus, both Hubbard and Seligman explained that Hubbard was thanking Seligman only for his involvement in the meetings that have become public knowledge. Critics also allege that the University of Pennsylvania's Positive Psychology Center, founded by Seligman, received a $31 million sole source contract from DoD in 2010 because of assistance Seligman provided to the government with its counter-terrorism efforts. Seligman said that this contract was awarded because there were no competing entities who had the same experience in training and research on the topic of positive psychology, and there was an urgent need for a program in positive psychology to help returning troops. Seligman clarified that during negotiations on this contract, there was never any mention that the contract related to past work he might have done for DoD or other intelligence agencies. |659|

Sidley has not uncovered evidence that Seligman had interactions with the CIA beyond the isolated meetings and lectures in the year after 9/11 that are a matter of public record. It is possible that more interactions occurred, particularly given Hubbard's comment that Seligman had provided assistance over the course of four years, but no evidence suggests that interrogations were ever directly discussed at these meetings, despite the fact that the scientific theories that Mitchell and Jessen later adapted to construct the CIA's interrogation program clearly were. On balance, it seems difficult to believe that Seligman did not at least suspect that the CIA was interested in his theories, at least in part, to consider how they could be used in interrogations. However, we found no evidence to support the critics' theory that Seligman was deeply involved in constructing or consulting on the CIA's interrogation program, and no evidence that such consultation would have involved APA officials even if it had occurred.

C. Meeting of the CIA Advisory Committee

In January 2002, the CIA's Professional Standards Advisory Committee invited Susan Brandon and James Mitchell to attend a Committee meeting. |660| Brandon said that Mel Gravitz and Ron Fox were her contacts in the CIA, and they asked her to come and brief the Advisory Committee. At the meeting, held on January 25, the minutes reflect that Brandon was introduced to the other members and asked to sign a "secrecy agreement," before being briefed on the function of the CIA's Operational Assessment Division and the purpose of the Advisory Committee. Brandon then discussed her role at APA, including her involvement in planning the upcoming conference at an FBI Academy to remedy the FBI's traditional disengagement from academics and scholars. |661| Following Brandon's presentation, the group discussed "collaborative efforts between OAD, PSAC, and APA," and Mitchell presented "research findings in cross-cultural assessment of personality." |662| Brandon said she could not recall Mitchell's presentation, but her general impression was that Hubbard was more interested in obtaining information from spies around the world than from detainees. She said that nobody at the meeting asked her about interviewing or interrogations, and it did not strike her that the others at the meeting were interested in that topic. |663|

After the meeting, Brandon and Hubbard communicated regarding ways that Brandon and APA could be useful to Hubbard's group. |664| Brandon explained that Hubbard subsequently provided her a list of topics that he hoped she would be able to help him explore, but that she was disappointed by how basic the questions were. |665|

Following the meeting on January 25, Brandon emailed Fox regarding an article that Terry DeMay was writing for the APA Monitor, |666| about which Matarazzo had raised some concern. Brandon commented that "[a]s far as I can tell, there is really no overlap between the work that he describes and the kinds of issues raised at our Friday meeting." |667| That the Advisory Committee was scrutinizing an article written by DeMay, the same person who raised ethical concerns about the interrogation program, during a meeting at which Mitchell was present could suggest that the Advisory Committee at some point addressed interrogation issues. However, Brandon's comment to Matarazzo in a different email indicates that she was concerned about the article only for its potential to "overlap with the work of [Hubbard's] group." |668| On balance, it seems unlikely that the Advisory Committee discussed ethical issues related to detainee interrogations at the meeting that Brandon and Mitchell attended.

This collection of incidents together strongly suggest that, though the Professional Standards Advisory Committee itself might not have consulted on interrogation issues, at least two of the three highly placed members of the Advisory Committee were doing work on the ethics of interrogations. Matarazzo made several inquiries on various issues related to the CIA and potentially abusive interrogation issues, including assessing whether sleep deprivation was torture and attempting to identify relevant research on how to effectively interrogate. Gravitz produced an opinion on the ethical implications of psychologists' involvement in interrogations, which suggests that he was privy to at least some background information regarding the CIA's interrogation activities, including the specific roles psychologists had been designated to fill. Thus, it seems likely that, even if the Advisory Committee as an official entity was not advising the CIA on interrogations, its members were providing consultation on this topic. However, we found no evidence that either Gravitz or Matarazzo coordinated with APA staff or governance on their consultation activities with the CIA, and thus it seems unlikely that APA knowingly facilitated the CIA's use of harsh interrogation techniques through the involvement of prominent former governance members on the Advisory Board.

D. FBI Conference: "Countering Terrorism: Integration of Theory and Practice"

In the years after 9/11, in addition to informal meetings and discussions, APA began co-hosting with the FBI, CIA, and other government entities a series of formal conferences or workshops intended to integrate theory and practice with regard to a number of topics relevant to national security settings. Susan Brandon, visiting Senior Scientist in the APA Science Directorate between August 2001 and December 2002, and Geoff Mumford, Assistant Executive Director for Government Relations in the APA Science Directorate, were at the forefront of planning these conferences.

In November and December 2001, at around the same time as the Seligman gathering, Brandon and Mumford met with members of the FBI's Behavioral Science Unit to begin organizing an invitational conference co-hosted by the FBI Academy, the National Institute of Justice, APA, and the University of Pennsylvania's Solomon Asch Center for the Study of Ethnopolitical Conflict, an academic group founded by Martin Seligman and Peter Suedfeld to advance training in ethnic-group conflict and violence. On December 20, 2001, Kurt Salzinger wrote to Mike Honaker to ask for his support in moving quickly on sponsoring the proposed FBI Academy conference. He explained that "we have been making available our list of experts to agencies of government from time to time" and that the proposed conference would be an opportunity to hold a meeting that built on the FBI's use of psychological science. Honaker forwarded the request to the rest of APA's Executive Management Group, noting that "[t]his seems to me to be an excellent opportunity and one that meets our criteria for co-sponsorship." |669|

Sidley spoke with both Susan Brandon and Geoff Mumford, the APA staff members charged with organizing this conference. Brandon explained that she began to identify potential participants for the workshop by speaking with Band and her colleagues at the APA, and then by conducting a literature search. |670| At Band's suggestion, Brandon reached out to Behnke to gauge his interest in participating in the conference, which she described as a "meeting between social scientists and 'agents' of various sorts." |671| Over the following weeks, Brandon invited a number of researchers with both academic and government affiliations. The conference report shows that, among the operational psychologists attending this conference was James Mitchell, who at that point was in the midst of designing the CIA's interrogation program.

Also present were a number of APA staff and governance individuals, including Steve Behnke, Director of the Ethics Office; Robert Kinscherff, former Chair of the Ethics Committee; and several members of the Science Directorate staff. Mel Gravitz, the long-standing APA governance member who served on the CIA's Professional Standards Advisory Committee, also participated in the workshop.

Several weeks before the conference, Brandon informed participants that there would be roughly equal numbers of scholars and field agents attending the meeting, and that they would be broken into small groups to discuss "questions and scenarios that reflect the current concerns of the FBI and associated agencies in ongoing counter-terrorism efforts." These issues included identifying individuals or communities that support terrorist networks, educating the media and the public regarding ways to communicate and cope with terrorist threats, and "interview[ing] current detainees." |672| The format of the meeting was based on Seligman's gathering from December 2001, which Band believed worked well because the academic participants freely contributed knowledge without the need for sensitive information: "[T]here was no expectation on the part of the Seligman group that we would even communicate with them . . . yet, they spoke and we listened and gained valuable assistance from them." |673| After reviewing the Seligman paper, Brandon explained that she "liked the format and the development of very concrete notions and suggestions" and thought it would be a "worthy goal" to write something similar after the upcoming conference. |674|

Each of the participants was assigned to a "scenario" and a "question," which would be considered by small groups in the morning and afternoon, respectively. The scenarios were designed to identify the issues that law enforcement personnel faced in triaging a large volume of incoming information, coaxing individuals to report on suspicious behavior and convincing voluntary informants to provide additional and more reliable information, constructing interrogation plans in the face of media scrutiny, identifying the most effective interrogation techniques based on various situational factors, and enhancing the image and reputation of the FBI in Arab-American and Muslim-American communities. |675|

One of the groups addressed a scenario that raised the issue of psychologists' ethical requirements in the context of law enforcement needs. The scenario described a woman who contacted her psychologist to report that she believed her son was being recruited for a "martyrdom" mission. Before including this scenario in the materials for the conference, Brandon contacted Behnke on behalf of one of the FBI Academy faculty members to ask whether APA would have a concern with using the scenario because it would "be in any way considered unethical or [] raise issues of ethics that APA would want no part in." |676| Although the FBI's request suggests that it might have wanted to present only those ethical "dilemmas" that could be easily resolved in an ethical manner, it seems more likely that the communication was merely a courtesy to APA as a co-sponsor of the workshop.

The discussants on this panel, which included Steve Band, Steve Behnke, Melvin Gravitz, Heather Kelly, and Robert Kinscherff, initially "focused on the ethical code of psychologists and its apparent limitations in situations in which national security may be threatened." |677| After discussion, the group recommended that the APA consider "including statements regarding information related to national security in its code of ethics" and broadening training programs to teach psychologists how to respond in national security situations. |678|

Mitchell was assigned to a different small group focused on interrogation issues. The scenario considered by Mitchell's group described three individuals who had been arrested for trespassing and photographing a nuclear power plant facility. The group discussed several issues that arose when interrogating individuals suspected of being involved in terrorist activity. During its discussion of cross-cultural issues, the group surmised that "[i]t may be that an American simply could not develop sufficient rapport with a foreign visitor" and that it is possibly that lying "looks different" in other languages and cultures. |679|

In the afternoon, Steve Band and James Mitchell were assigned to one group, along with several academics and representatives from government agencies and departments, including one representative from the Office of Homeland Security. They discussed research related to the life problems and circumstances of Middle Eastern immigrants that might help law enforcement understand normal responses in that community and identify opportunities to acquire assets. |680| In a different group, Behnke facilitated a discussion regarding resistance to quarantines and other emergency measures in the face of biological terrorism. |681| Gravitz was assigned to yet another group, which discussed law enforcement campaigns or activities that might be useful to create a climate in which law enforcement can operate more effectively. |682|

The Executive Summary of the conference report identified three broad themes that weaved through the discussions: information exchange, relationships with key communities, and interrogation/interview techniques. With respect to the last theme, the report noted that "[s]uggestions were offered on how to most effectively interview community members who may have information relating to individuals that are involved in terrorist networks, either within or without the U.S. Special focus was given to instances where these people are recent immigrants." |683| It also described the challenges faced when interacting with individuals from Arab-American and Muslim-American communities, where changes in immigration and Justice Department policy had bred distrust that undermined the creation of effective relationships with law enforcement.

After Brandon prepared the conference report, Mumford shared it with Kurt Salzinger, and recommended that he circulate it to the Practice Directorate, Steve Behnke in the Ethics Office, and the Executive Management Group. Mumford explained that "there are suggestions within the report that APA might take a role in developing further clarification for clinicians should they come across information in a practice setting that could have implications for national security." |684| On January 21, 2003, Brandon and Mumford arranged a meeting with Brian Vila, the Director of the Crime Control and Prevention Research Division at the National Institute of Justice to reflect on the conference and discuss future collaborations with the FBI Behavioral Sciences Unit. |685|


IV. BROADENING AND STRENGTHENING CONNECTIONS: MARCH 2002 -MARCH 2004

A. Congressional Outreach

As the initial shock of the events of 9/11 wore off, APA continued its efforts to contribute psychological science to counterterrorism efforts, both internally and through outreach to various government entities. Internally, the APA created task forces and ran educational programming designed to study various aspects of the nation's response to the terrorist attacks. For example, in 2002, the Board allocated funds to establish a Task Force on Promoting Resilience in Response to Terrorism. |686| This Task Force, a joint effort between APA and the American Psychological Foundation, was intended to develop information on programs that would promote resilience and the development of coping mechanisms that individuals could use to manage the stress and anxiety caused by terrorism. |687|

The APA also continued lobbying to congressional committees and members in an attempt to convince them of the usefulness of psychological science in combating terrorism. On March 1, 2002, APA Science Directorate staff arranged meetings between psychological scientists and staff on the House and Senate Science Committees, which ripened into additional congressional briefings later in the year. Highlights of these outreach efforts included work with Senator Kennedy's office on the inclusion of psychological services in the Bioterrorism Preparedness Act and the appointment of a psychologist advisor to the Office of Homeland Security. |688| A few months later, APA President Philip Zimbardo met with Senator Inouye to discuss funding for human-oriented psychological defense research. |689| Shortly after his meeting with Senator Inouye, Zimbardo reached out to Pat DeLeon, Inouye's chief of staff and former APA president, to discuss how he could promote "getting psychologists involved in long term psych 'warfare' propaganda on terrorism," suggesting that he might be able to chat with Condoleeza Rice, his "old provost with whom [he] had good relations." |690| When the email was forwarded to APA staff, Heather Kelly commented that "there already are psychologists on staff down at Ft. Bragg, where psyops are headquartered . . ." |691| Zimbardo said that he did not follow up on this email and that he did not think anything came of it. |692| However, as described below, Zimbardo and Science Directorate staff met with Rice's staff in the National Security Council the following month to discuss psychological science relating to counterterrorism efforts.

The following year, in September 2003, the Public Policy Office of the Science Directorate sponsored a Science Advocacy Training Workshop focused on training researchers to effectively communicate with Congress about the ways that behavioral research fits into DoD's needs. |693| The Workshop included a briefing on "Psychological Science in Support of the Soldier," co-sponsored by APA and Senator McCain's office. |694| Several months later, Behnke and Kelly met with Senate staff to again apprise them of APA's work in the national security arena and to "gauge their level of interest in APA's thinking on these matters." |695|

B. Continued Interactions with Executive Agencies

In a parallel effort, the APA also continued to forge and strengthen connections with the CIA, FBI, and other executive agencies tasked with combating terrorism. As his presidential year advanced, Phil Zimbardo began to take a more active role in these outreach efforts. In June 2002, following up on Zimbardo's suggestion the previous month of contacting Condoleeza Rice, Zimbardo, Brandon, and Kelly attended a meeting with two senior staff members in Rice's National Security Council (NSC) Office of Combating Terrorism to explore "psychological research that is germane to counter-terrorism efforts." |696| The NSC group asked APA to identify social scientists with expertise in risk perception and communication who could speak informally with NSC about "how to best communicate with the public, the media, and various infrastructure agencies regarding the level of risk of security alerts . . . and how to do this while both maintaining credibility with those who receive these messages and avoiding threat fatigue among those whom must react to these messages." |697| The APA Science Policy staff proposed modeling such a meeting on the format used for its meetings with Congress, the Department of Homeland Security ("DHS"), and the FBI Academy. |698| Kelly and Brandon both recalled that the meeting was a fairly high-level discussion and that Zimbardo did most of the talking while NSC staff said little of interest.

APA staff also started to broaden their outreach to DHS. In May 2003, Mumford and Brandon joined an advisory group to the Department of Homeland Security Science and Technology Behavioral Research Program. The group, headed by Gary Strong, Director of Behavior Research, began to meet once a month to address areas of interest for social and behavioral research within DHS, including terrorist cells, public responses to DHS activities, determination of intent, and the economic vulnerability of the United States. The advisory group members suggested a number of additional topics, including "crowd and panic behavior; suicide terrorism; determination of intent in crisis situations; vigilance problems for security officials; autonomic specificity in reactions to stress; use of electro-encephalograms for determination of intent and for detection of deception; and use of Guantanamo Bay subjects as data." |699| Mumford stated that he could not recall any discussion about research studies with detainees, either at this meeting or in other conversations with Brandon, Gerwehr or Mumford. |700| Brandon likewise stated that she did not know what this comment referred to, and assumed that any discussions on this topic would have related to attempts to discover what people were doing with research subjects when there was very little oversight. However, she stated that she recalled people wanting to observe detainees to understand the effectiveness of the interrogation program. Brandon said she would characterize this kind of observation as program evaluation rather than research. |701|

C. Meetings with APA Presidents at the CIA

During his presidential year, it is likely that Phil Zimbardo met with Kirk Hubbard more than once to discuss in general terms how Zimbardo might contribute to Hubbard's work at the CIA. In August 2002, at the APA Convention in Chicago, it is likely that Zimbardo met with Hubbard after one of Zimbardo's speeches, and that Hubbard invited Zimbardo to give a talk about interrogations to his group in the CIA. Zimbardo said that he had done research on interrogations with American detectives, and that he agreed to speak with Hubbard's group even though he thought it likely that his research would not have any extension to the Guantanamo context because of differences in language and cultural values. Zimbardo gave a talk to fifteen to twenty people, who he assumed to be an insider group at the CIA, but he did not get the impression that anybody wanted to use his ideas in a concrete way. |702| Zimbardo thought that Hubbard might have asked him to be on contract or accept a research grant at that point, but Zimbardo did not want any further connection with Hubbard because he got the sense that Hubbard wanted him to do things he would not be willing to do.

Only a few months later, in October 2002, at the suggestion of Geoff Mumford and Susan Brandon, Kirk Hubbard attended a meeting in California organized by Phil Zimbardo, Bruce Bongar, and Larry Beutler. |703| This meeting was a first step toward establishing the National Center on Disaster Psychology and Terrorism, |704| a joint effort of the Pacific Graduate School of Psychology and Stanford University designed to train doctoral students to help victims of catastrophic events.

It is likely that Zimbardo met with Hubbard during this conference, though the purpose of such a meeting is not clear. Sidley's only information about this meeting comes from statements given by Hubbard, Matarazzo, and Kirk Kennedy. Hubbard stated that he and Kennedy met with Zimbardo in San Francisco because Kennedy wanted to put Zimbardo on contract. |705| It is likely that the meeting was arranged by Matarazzo, who said that it was possible that he could have facilitated a meeting between Zimbardo and Hubbard if Hubbard was planning on being in San Francisco, although he did not have any specific recollection of having done so. |706| Zimbardo also thought it was conceivable that he might have met with Hubbard in his home if Hubbard had come to California. |707| However, Kennedy said that he was under cover in his role at the CIA during 2002, and he did not meet Zimbardo until after he left the CIA in 2004. At that point he was heading up research within the DoD, and he was able to leverage Hubbard's relationship with Zimbardo to arrange a meeting. |708| Sidley's knowledge of this meeting rests solely on these contradictory witness accounts, but it seems likely that Matarazzo arranged for Hubbard to meet Zimbardo during the National Center on Disaster Psychology and Terrorism meeting in October 2002, and that Kennedy met with Zimbardo at a later date.

As Zimbardo's presidential year ended, the incoming APA President for 2003, Robert Sternberg, stepped into his role to interact with the CIA. In December 2002, Brandon and Mumford accompanied Sternberg on a visit to the CIA to give a presentation to a group of operational psychologists in the intelligence community. Sternberg addressed cross-cultural assessment issues and the development of psychological assessment tools based on theories of "successful intelligence." |709| The Science Directorate publicized the visit in its newsletter under the headline, "APA President Sternberg visits the CIA," and posted his power point presentation on the APA website. |710| Despite clear evidence documenting his presentation, in the brief interview Sternberg begrudgingly agreed to grant Sidley, he denied that he ever attended a meeting at the CIA.

D. CIA Conference: "The Science of Deception: Integration of Practice and Theory"

Throughout the spring and summer of 2003, Brandon and Mumford also began planning the second workshop in the series of conferences designed to bring operational psychologists and researchers together. On January 15, 2003, Brandon and Mumford attended a luncheon meeting with Kirk Hubbard and Judy Philipson to discuss possible long-term collaboration between the APA and Hubbard's Research and Analysis Branch at the CIA. According to notes from the meeting prepared by Brandon and Mumford, Hubbard discussed his interest in expanding the input his office received beyond the clinical perspective offered by the Advisory Committee and into broader scientific perspectives. He suggested that he would be interested in sponsoring a meeting similar to the one sponsored by the FBI Academy the previous year.

Brandon and Mumford commented in a report to Salzinger that Hubbard's interest represented "a good opportunity to form a partnership." Such partnerships were seen as "mutually beneficial" in the Science Directorate:

    [N]ot only do we get to help APA members offer their expertise as needed, but the researchers are challenged by new and interesting questions. Our experience also has been that, despite the history of distance between academia and places like the FBI and CIA, many academics jump at the opportunity to be of service, an attitude no doubt formed by 9/11. |711|

Shortly after the lunch meeting with Hubbard, Brandon and Mumford began planning a workshop on the topic of deception detection, to be co-sponsored by the CIA and the APA. At the time, Brandon had left the APA and had joined the National Institute of Mental Health as a Program Officer. |712| In March 2003, Mumford approached Scott Gerwehr, an Associate Policy Analyst at the RAND Corporation, about participating in the upcoming workshop modeled on the 2002 conference co-sponsored by the APA and the FBI Academy. APA first made contact with Gerwehr in May 2002, when Brandon started reaching out to psychologists to develop a scientific definition of deception for a group of people working for the CIA, likely Hubbard's branch. |713| One of her inquiries was forwarded to Gerwehr, who responded to Brandon with the operational definition of deception he had been using in his work at RAND. |714| When Mumford contacted Gerwehr in 2003 regarding the upcoming deception detection workshop, he explained that Gerwehr's RAND paper, which Gerwehr had cited in his response to Brandon's inquiry, was "part of the inspiration" for the workshop. |715|

Brandon, Mumford, Hubbard, and Gerwehr would come to serve as the planning committee for a workshop on the topic of detecting deception for the summer of 2003, and a workshop on the topic of interpersonal deception in the summer of 2004. Gerwehr also invited Linda Demaine, |716| another RAND employee, to join the initial project meetings with Mumford and Brandon in late April 2003. |717| By April 1, Brandon, Mumford, Gerwehr, and Hubbard had all met and were making preliminary decisions regarding the timing and location of the 2003 conference. |718| Hubbard agreed that the CIA would fund the conference, including travel and lodging expenses for conference attendees. |719|

On March 15, 2003, Mumford outlined the basic parameters of the meeting, and described the purpose of bringing together academics and operational psychologists to discuss deception:

    [The meeting] will provide those on the operational side with new strategies of deception to use, and an increased awareness of how others might use deception. It will provide the researchers with an opportunity to see what aspects of deception are well-described and what aspects require further systematic scrutiny. |720|

The group began circulating names of academics and agents with expertise or interest in the topic of deception, with the researchers and academics to be identified primarily by Mumford and Brandon and operational psychologists to be identified by Hubbard. Among the operational participants recommended by Hubbard were Bruce Jessen and James Mitchell, whom Hubbard initially identified only by first name and described as contractors to the CIA with "military special ops . . . background." |721| On March 29, 2003, Hubbard also identified Andy Morgan as a potential participant based on his research in the area of deception with "military special ops people." |722|

The group of organizers began inviting participants and, as they started to receive acceptances and rejections, discussing how to balance the numbers of researchers and operational psychologists. When one researcher whom the group felt could contribute significantly declined to attend, they suggested turning to APA presidents to convince the researcher to participate. Hubbard suggested "find[ing] someone like Sternberg, Zimbardo, etc. who knows [the researcher] and could cajole him. Joe Matarazzo knows him and has called on my behalf before . . . Joe loves to strong arm people." |723| Hubbard later contacted Matarazzo to request his assistance, and reported to the rest of the group that Matarazzo "loves arm twisting and I believe he is quite effective." |724|

Ultimately, at least thirty-six academics, APA representatives, and government representatives, including individuals from DHS, OSTP, the FBI, and the CIA, attended the conference. The operational psychologists whom Hubbard invited were included in the attendance list distributed to the participants, but several were identified by pseudonym or first name only. Mitchell and Jessen were among the participants who were identified by only their first names and as CIA contractors. |725|

When the group discussed whether to record the discussions during the workshop, Hubbard commented that "some of the ops guys might be a little nervous" with recording, but said that he would "let them know ahead of time and if they are uncomfortable they can decline the invite. There will be no shortage of ops people interested in attending. I may have to beat some off with a stick." |726| Mumford responded that it was Hubbard's call regarding whether to record the sessions, but he indicated that he would "hope the caveat that all recording/transcripts would be scrubbed as deemed appropriate by CIA/RAND would be sufficient to put your people at ease." |727| Ultimately, they decided that the discussions would be recorded and that APA staff would also take notes during the conference.

During the introductory remarks on the first day of the conference, the participants described the topics in which they were interested. Mitchell expressed interest in the "practical application and operation of deception. [He was] not looking for what is already in the literature or in meta-analyses, [but rather w]ants to know if we are interviewing a terrorist, how can we tell if he is lying." Jessen expressed interest in similar topics, and was "also interested in the relationship between two people in this interrogation situation and how this affects the outcome." |728|

Following introductions, the participants split into groups to discuss one of four scenarios: embassy walk-in phenomena, law enforcement threat assessment, law enforcement interrogation and debriefing, and intelligence gathering. Hubbard had earlier developed these scenarios as examples of the kinds of situations in which agents have to deal with deception, |729| and Brandon added a list of questions to each of the scenarios before distributing them to participants. |730| Hubbard had also requested that Mitchell, Jessen, and Philipson be assigned to the embassy walk-in and interrogation and debriefing sessions. He commented that Mitchell and Jessen are "special people doing special things" and assured Mumford that he "will really like them-great guys." |731| In the grid used by the conference organizers to show the scenario assignments, Mitchell and Jessen are the only participants whose names are marked with asterisks. |732| It is likely, therefore, that Mumford and Brandon were aware that Mitchell and Jessen were of some special importance, though it is not clear that they understood why Hubbard was singling them out.

As the conference attendees broke into small groups, Mitchell and Jessen participated in the "law enforcement interrogation and debriefing" panel, along with several individuals closely affiliated with APA leadership, including Mumford, Demaine, and Kinscherff. |733| For this panel, the primary issue of concern was that "eliciting information is an evolutionary-emergent process that develops based on the real-time situation and direct[ion] by the interrogator/debriefer." The group concluded that information gathering might be facilitated by appropriate matching between characteristics of the interviewer and interviewee, but Jessen offered the "contrary view . . . that matching doesn't have much effect." The group also discussed the importance of considering cultural issues and the role of political or religious ideology in influencing emotions and motivations of interviewees, and noted that it may be more difficult to detect deception when individuals believe the lies they tell. |734| Finally, the discussants considered "research challenges" on the topic of interrogations, and raised a number of questions:

    How do we find out if the informant has knowledge of which s/he is not aware?

    What pharmacological agents are known to affect apparent truth-telling behavior?

    ...

What are sensory overloads on the maintenance of deceptive behaviors? How might we overload the system or overwhelm the senses and see how it affects deceptive behaviors? |735|

In the intelligence gathering panel, the participants discussed how best to "evaluate the authenticity of both the source of information and the information itself." |736| The participants commented that there had been relatively little progress made in methodology and tools for the field of intelligence gathering, and that any advances in asset validation had been very recent. |737| At the conclusion of the conference, Hubbard and other operational psychologists requested that the researchers submit short research proposals.

After the meeting, Brandon joined the other organizers in expressing her appreciation for their efforts. She commented to Hubbard that she "appreciated how Jim Mitchell kept saying (especially on the second day), 'this is an empirical question; we need to collect data and do studies,'" |738| and queried whether it was a "good outcome" for Hubbard that the academic participants would send research proposals to him. Hubbard responded that, while he would eventually want "practical suggestions," his main goal for the conference was to generate "specific research ideas and initiate contracts to provide practical answers." |739|

Within APA, there was also discussion regarding the positive outcome of the conference and its potential to facilitate future interactions with operational psychologists. On July 21, Mumford sent an update on the workshop to Norm Anderson, Mike Honaker and the Science and Public Policy groups: "Just a note to let you know that the APA/CIA/RAND workshop went extremely well last week. . . . Suffice to say, psychological science is likely to play a much more significant role within the intelligence community from now on and both the research and operations communities looked at this as the start of a long and potentially very fruitful collaboration." |740| Also in July, APA published a story about the conference in SPIN, the Science Directorate's newsletter. The story noted that the workshop was funded by the CIA and hosted at RAND headquarters, expressing "profound thanks to both Scott Gerwehr, Associate Policy Analyst at RAND, and Susan Brandon, Program Officer for Affect and Biobehavioral Regulation at NIMH, who jointly conceived of this project while Susan was still Senior Scientist at APA" and "[s]pecial thanks to Kirk Hubbard, Chief of the Research & Analysis Branch, Operational Assessment Division of the CIA, for generous financial support and for recruiting the operational expertise and to RAND for providing conference facilities and other logistical support." |741|

As Brandon and Mumford began to consider possible follow-up activity, they solicited feedback from conference participants. After a month had passed, and they were still awaiting responses from several participants, including Mitchell and Jessen, Hubbard informed them: "You won't get any feedback from Mitchell or Jessen. They are doing special things to special people in special places, and generally are not available." |742|

On September 8, Hubbard hosted a meeting in his office to follow up on the deception detection conference and plan for future conferences on related topics. |743| Brandon, Gerwehr, Mumford, and two social scientists from the National Academies of Science, Faith Mitchell and Chris Hartel, attended the meeting. In addition to Hubbard, Judy Philipson, Carmel Rosal, and Jon Morris attended from the CIA. During the meeting, the group talked about cross-cultural information that might be useful for walk-in evaluations and asset recruitment, evaluation and management. |744| Brandon wrote to Hubbard, Gerwehr, Mumford, and Mitchell after the meeting to share some additional thoughts she had regarding the usefulness of developing measurements of cultural beliefs and bias. |745|

By the fall of 2003, it seems likely that some members of APA staff knew enough to be aware, had they been looking for the connection, that Mitchell and Jessen, two CIA contractors, were interested in learning about psychological science, including the science of deception detection, that could help interrogators to work more effectively, and that their interest might involve research on detainees subjected to "sensory overloads" or "pharmacological agents." As their comments at the beginning of the workshop suggest, the ability to detect deception was the linchpin of the interrogation program designed by Mitchell and Jessen. As Gregg Bloche explained in The Hippocratic Myth:

    It's indeed common wisdom among political progressives that torture doesn't work–if, by "work," we mean extraction of accurate information from hostile informants. Miming communist interrogation methods . . . yields compliance of a mindless sort: People being abused to the breaking point will say anything to get the torture to stop. . . .

    But this story overlooks a point Albert Biderman made fifty years earlier. If well designed and strategically sequenced to reduce captives to despair, the abuses he catalogued could "induce" a compliant state of mind. But the "shaping" of compliant behavior was another matter. It turned on the interrogator's perceived omnipotence–his monopoly power to punish and reward. He could use this power as the Chinese and Soviets did, to extract false confessions. But he could also use it to force fearful and hopeless prisoners to tell the truth–if he could detect falsehoods in real time and punish them swiftly.

    . . . Jim Mitchell believed that the stressors they'd designed to inoculate trainees against torture could be re-mixed–and enhanced–to extract lifesaving intelligence from actors intent on doing Americans harm. But the breaking of prisoners, by itself, wouldn't be enough. Biderman's insight here was critical. |746| The interrogator would need to shape the behavior of the men he broke by distinguishing truth from invention, then rewarding the former. |747|

Thus, a conference on the topic of detecting deception would have been useful to Mitchell and Jessen, who needed this critical skill to make their program of harsh interrogation techniques effective.

E. Continued Interactions with CIA Contractors

Following the "Detecting Deception" conference, APA staff and governance members continued to have isolated contacts with the CIA and the newly-formed Counterintelligence Field Activity ("CIFA") agency within DoD. In late 2003, Heather Kelly had at least two interactions with individuals who were affiliated in some way with Mitchell and Jessen or the SERE schools. On September 24, 2003, Kelly received an email from David Ayres, CFO of Mitchell Jessen & Associates |748| and President of TATE Inc., a firm focused on providing "personnel recovery" training to the Department of Defense and other government agencies. Ayres |749| sent Kelly a "blurb" on the Special Behavioral Applications division of TATE, which specialized in applied psychological consultation, |750| and attached the resume of Bruce Jessen, |751| who he identified as one of TATE's consultants. He offered to put Kelly in contact with Jessen if she "ever wish[ed] to talk to him about ongoing research." |752| Kelly responded to Ayres that "this guy is incredible" and she would "like to follow up with you and him about some of this stuff!" |753|

Several months later, Kelly wrote to Mumford that she had spoken to a "Dad friend" |754| who "owns the company that runs the training programs out in Washington state for the military–the ones that simulate POW situations and run high-risk military personnel through them," and that "[h]e and two psychologists were the ones that did all the research that Paul Bartone from Div. 19 reports on! |755| And he just got Joe Matarazzo to sit on the advisory panel. They also do tons of deception stuff." |756| Kelly suggested that she and Mumford have lunch with this friend, and Mumford agreed that it was a "nice connection" and he would like to set up a lunch. |757| Mumford said that he did not recognize that Kelly was referring to Mitchell and Jessen at the time, and he did not recall ever setting up a lunch to meet with the friend. |758|

Meanwhile, as CIFA began to expand its operations, APA began to bridge connections to behavioral science staff within the DoD agency in the same way it had to behavioral science staff in the FBI and the CIA. On February 19, 2002, DoD Directive 5105.67 established CIFA to advance the mission of developing and managing DOD's counterintelligence programs, including providing support and resources to DOD personnel and creating research and development programs. One of the directorates within CIFA was the Behavioral Sciences Directorate, which by 2005 had at least twenty psychologists on staff to support offensive and defensive counterintelligence efforts, including providing risk assessments of detainees held at Guantanamo. In 2003, Scott Shumate, who had been chief operational psychologist in the CIA's Counterterrorism Center, joined CIFA as the director of the Behavioral Sciences Directorate. |759| In April 2004, Kirk Kennedy also transferred from his position within the CIA's Operational Assessment Division to CIFA's Behavioral Sciences Directorate, where he became Chief of the National Center for the Study of Counterintelligence and Operational Psychology, reporting directly to Shumate.

It is likely that, in the summer of 2004, Phil Zimbardo met with Kirk Kennedy, who had only recently transitioned from the CIA to CIFA, to discuss serving in an advisory capacity to the DoD agency. Although Sidley is not aware of any contemporaneous documentary evidence relating to this meeting and Zimbardo could not recall having met Kennedy, |760| Susan Brandon and Kirk Kennedy both described the meeting. Brandon said that she and Kirk Kennedy traveled to California in 2004, while Brandon was employed by the National Institute of Mental Health, to discuss Zimbardo's key research priorities related to terrorism. |761| Brandon added that James Breckenridge |762| was also part of the meeting. |763| Kennedy confirmed that he met Zimbardo at his home in 2004 to discuss setting up an advisory board for CIFA similar to the one that Kirk Hubbard had engaged at the CIA. |764| Although it seems likely that a meeting between Zimbardo and Kennedy occurred, Sidley has found no evidence that APA staff facilitated, or were even aware of, the meeting or its purpose.

F. Awareness of Abusive Interrogations

By March 2004, the issue of abusive interrogations should have been apparent to any informed citizen. Although the media reports at this time generally focused on abusive techniques rather than on the reasons for such techniques, some early reports, such as the Washington Post's 2002 reporting, clearly identified that such tactics were being used at interrogation centers. |765| Moreover, only a limited number of explanations for using such techniques are apparent. One potential explanation was that military and intelligence personnel were abusive towards detainees as a means of acting out their anger or sadistic impulses. But the far more likely explanation is that these personnel were abusing detainees in an attempt to break them down and then extract information from them. Therefore, a reasonably sophisticated consumer of these news reports, especially a psychologist whose training would have attuned him to the risk of serious psychological harm from such tactics, likely would have a sense that the harsh tactics were being used in interrogations, even if the reporting did not clarify the context.

In addition, APA staff in the Science Directorate were privy to some information suggesting that Mitchell and Jessen were involved in interrogations and that their activities might raise some concerns about potentially harsh techniques. From Mitchell and Jessen's comments at the 2003 CIA- and RAND-sponsored conference, it is likely that Science Directorate staff, particularly Geoff Mumford, knew that Mitchell and Jessen were interested in using psychological science on deception detection as it related to improving the effectiveness of interrogations and interviews of terrorists. If Science Directorate staff did not know that the research discussed at APA-hosted conferences was being used to support interrogation activities, it was due to the determinedly agnostic attitude of staff. In the face of substantial indications that the CIA was using psychologists to conduct interrogations that might include abusive tactics, Science Directorate staff intentionally avoided making inquiries that would produce more information. Therefore, although it is not likely that APA staff had been read into the CIA's interrogation program, the level of public information available and their encounters with the principals involved in the CIA interrogation program by March 2004 should have alerted them to at least the possibility that the CIA was conducting abusive interrogations and was drawing on psychologists and psychological science to do so.


V. ETHICAL RUMBLINGS: MARCH 2004 - JULY 2004

A. Ethical Inquiries from CIA

Prior to March 2004, the vast majority of interactions between APA and the intelligence community had been centered in the Science Directorate, where staff focused on building relationships in which they could demonstrate the value of psychological science to various agencies. In March, however, an inquiry from Kirk Hubbard at the CIA, pulled the APA's Ethics Office, directed by Steve Behnke, into conversations regarding the role of psychology in national security situations.

On March 11, 2004, Mumford put Hubbard in touch with Behnke and Kinscherff to "discuss some issues related to the ethics codes that govern psychologists and psychiatrists in settings where our national security interests are at stake," |766| which Hubbard had raised. Hubbard then emailed Behnke and Kinscherff the following:

    Geoff Mumford provided your names as potential resources to provide guidance on the APA's code of ethics and some of the new and unique demands being placed on psychologists in response to countering terrorism.

    By way of introduction, I am the Chief of the Behavioral Sciences Staff at the Central Intelligence Agency. Our mission is to conduct applied behavioral and social science research to support the collection and analysis of human intelligence and to support special projects involving counterterrorism efforts.

    One of my staff, Andy Morgan, M.D. (cc'd above) have [sic] been discussing a problem that is experienced by both psychiatrists and psychologists, alike. Both specialties are being asked to provide consultation to law enforcement, the military, and other organizations that have a role in national security.

    Unfortunately, some of what they are asked to do runs counter to the American Psychological Association and American Psychiatric Association's code of ethics. For example, military psychologists are often asked to assist in questioning or "interrogating" foreigners detained in Afghanistan and Iraq. Psychiatrists are often consulted by law enforcement to provide consultation on apprehending and/or questioning subjects suspected of committing major crime.

    Andy and I were wondering if both our APA's (Andy is a psychiatrist) shouldn't begin to examine our respective code[s] of ethics to account for these new situations where the subject is not the client/patient, and the subject's rights can arguably be subordinate to the needs of national security. Do either of you have any thoughts on this issue, and how we might pursue this in the professional community? |767|

The two individuals raising these ethical issues, Kirk Hubbard and Andy Morgan, spoke with Sidley about the issues that had prompted them to reach out to the APA. Hubbard did not think that he would have raised these ethical concerns on his own initiative; rather, he surmised that others, perhaps individuals who were working under cover, had asked him to reach out to the APA on their behalf. |768| He added that Scott Shumate had raised similar concerns after returning from a CIA black site, |769| and concluded that the inquiry was probably an attempt by some people to "cover their butts." |770|

In contrast to Hubbard's explanation that this email was intended to provide cover, Morgan thought that they needed to clarify what military psychologists were able to do to assist with interrogations. |771| Morgan remembered having discussions with Hubbard in which they agreed that when a psychologist evaluates a prisoner, the prisoner is not "the client." He was not certain that the codes of ethics of the professional associations provided sufficient guidance in this context, so he wanted to make things safe for psychologists and obtain ethical guidelines that would outline the "rules of the road" in national security contexts. |772|

Morgan was also concerned, however, that psychologists might begin to participate as interrogators, which is a role that is beyond their training and competency. He referenced Jessen's attempt to act as the interrogator at the SERE schools, and commented that he personally knew of psychologists who had been deployed to Guantanamo and been placed in roles that were different from what they had been told before deployment. Morgan said that his goal in reaching out was to clarify what psychologists would be asked to do when assisting with interrogations, and to ensure that psychologists had the authority to refuse orders if those roles extended beyond their training. |773|

In response to Hubbard's inquiry, Kinscherff explained that the Codes were likely to be applied in a "fact sensitive" way that permits "the interpretation that the 'client' is not the suspect/target individual." He also commented that there may be situations in the national security context that the code did not contemplate:

    For example, under what circumstances might a psychologists deceive a third party by identifying him/herself as the treating professional for the third party, assure the usual protections of confidentiality and privilege, and then provide otherwise protected information to law enforcement or intelligence? Permit the sessions to be secretly recorded? Use the sessions to introduce false or misleading information to the person who believes him/herself to be the patient of the psychologists? . . .

    Or, at what point does the advice that a mental health professional provides in consulting on coercive interrogation technique[s] begin to push the boundaries of what would be acceptable?

    The codes simply did not contemplate circumstances where the law enforcement/national security interests might trump the ethical/legal interests of the identified patient/third party/target individual.

Kinscherff also proposed gathering together some of Hubbard's staff with staff from APA and ApA to discuss and sharpen these issues, and prompt an "evolution of a consensus that might eventually be reflected in the professional ethics codes of the professions." |774| Kinscherff forwarded his responses to Behnke, Mumford, Anderson, and Honaker, commenting that "this is an extraordinary opportunity to actively engage with the law enforcement and national security communities regarding some very challenging issues." |775|

Morgan also forwarded Hubbard's email to two psychiatrists, with whom he had discussed holding a meeting regarding ethics and national security. Behnke and the two psychiatrists then engaged in preliminary discussions regarding a collaboration on future working groups, |776| which later ripened into a meeting for government psychologists and representatives of the professional associations hosted by the APA on July 20.

After several weeks passed without further action within APA, Mumford contacted Steve Breckler, Executive Director of the Science Directorate, and urged him to "follow-up as its [sic] another 'teachable moment' and may represent an opportunity to be out front in a collaborative effort (with ApA) at a time when collaboration with CIA on other fronts carries with it a significant liability." |777| Mumford also forwarded the entire exchange to Brandon, and explained that he wanted to get a sense of whether Breckler would "champion" the effort before getting "too many people whipped up." He added that "part of the pushback might be coming from Stephen Behnke only because we've (he) just finished re-writing the ethics code and probably sees this as a can of worms." |778| Breckler followed up with Honaker and Behnke to comment that this issue "seems like a golden opportunity for APA to step up to the plate on issues that are gaining a lot of public attention and scrutiny," and Behnke agreed that "[t]his is a wonderful example of psychology being able to make a contribution regarding a pressing, high-profile issue of national importance." |779|

Even at this early stage in APA's consideration of ethical issues in the national security context, the APA's internal discussions suggest that a primary issue of importance to APA was messaging and publicity. Though it is likely that APA staff were motivated by the goal of providing substantive guidance to military psychologists as well, their initial internal communications turned on the opportunity to take the lead on an issue that was drawing public attention. Throughout the APA's consideration over the next several years of the ethical issues raised by psychologists working in nationals security, considerations of messaging and public image would continue to dominate the conversation.

B. FBI and NIJ Conference: "The Nature and Influence of Intuition in Law Enforcement: Integration of Theory and Practice"

In September 2003, after preliminary discussions with Tony Pinizzotto from the FBI, Brandon and Mumford began considering "intuitive policing" as a topic for the next conference bringing together operational psychologists and researchers. |780| Mumford and Brandon reached out to Bryan Vila at the National Institute of Justice for support, and they soon developed a proposal for a workshop sponsored by the FBI and the NIJ. The invitation to the workshop described its goal as "to shape a research agenda that will investigate and improve the decision-making tools that police use to direct suspicion, detect lies, and guide investigations," with a focus on intuition and "gut responses." |781|

By March 2004, the organizers had identified and secured acceptances from many operational participants and researchers. |782| In April, Hubbard emailed Mumford and Brandon to ask that Kirk Kennedy be added to the invitation list. He explained that Kennedy had recently left the CIA to become head of a research unit within CIFA that was similar to Hubbard's unit in the CIA. |783| Hubbard also suggested that Bob Mericsko, who ran Deception Detection and Analyst of the Future programs at the CIA's Intelligence Technology Innovation Center, receive an invitation. |784|

Ahead of the meeting, Brandon and Mumford shared the agenda for the break-out sessions with facilitators. The goal of the sessions was to develop and deliver research on "intuition" that might be useful to law enforcement by assessing "what is known, and what is not known about the cognitive, emotive, and action processes that we are collectively referring here to as 'intuition.'" |785|

At the meeting, Sarah Hart from NIJ, Steve Band from the FBI Academy, and Robert Kinscherff |786| gave introductory remarks before the group broke into three smaller sessions. In each of the breakout groups, the participants addressed the same set of questions relating to whether intuition exists, whether it is innate or learned, and whether it can be deliberately taught and sharpened as an intentional skill. The groups seemed to conclude that intuition is highly error-prone, but that it is a skill that can be learned and strengthened through experience. In the afternoon, the breakout groups addressed potential directions for research on intuition, such as identifying characteristics of highlight intuitive people. After the breakout sessions concluded, Kinscherff summarized the discussion from the various groups: "Most groups were uncomfortable with the word 'intuition.' However, most participants agreed that intuition or whatever it may be called is pre-conscious but based on sensory input. . . . Experience is a key component of developing the capacity for intuition, but that capacity may not transfer across contexts." |787|

On the second day of the meeting, several researchers and academics gave short presentations on their research as it related to intuition and implicit biases. Many operational psychologists also shared issues in their work that would be promising areas for research. |788| A participant in the conference stated that she could not recall any discussion about psychologists participating in interrogations, despite the fact that the Abu Ghraib photographs had only recently leaked to the public. |789| At the conclusion of the meeting, the group developed a research agenda, and the organizers urged conference participants to comment on the proposed research topics.

C. CIA Conference: "Interpersonal Deception: Integration of Theory and Practice"

While Brandon and Mumford planned the intuitive policing workshop with contacts at the FBI and NIJ, they remained interested in deception issues. |790| In March 2004, Brandon suggested to Demaine, Hubbard, Gerwehr, and Mumford that they consider asking a subset of the group to stay for an additional day of meetings focused on deception and deception detection, |791| to be funded by the CIA and RAND. |792| The workshop was designed to address the basic question of how to effectively deceive on an interpersonal level. The meeting's dual goals were to describe the current state of scientific knowledge on effective interpersonal deception and to create an agenda for further empirical research on the issue.

Invitations were extended to a subset of the participants in the previous day's intuitive policing conference, as well as some additional operational personnel and researchers with a special interest in deception. Participants included representatives from the CIA, DoD Special Operations, CIFA, DHS, the Secret Service, and law enforcement agencies in the United Kingdom, in addition to a cadre of researchers and academics. |793| Hubbard specifically suggested that Judy Philipson attend because "she works alot [sic] in the area of deception, not to mention being our terrorism guru." He added that it was "probably more important that she and Andy [Morgan] attend than me, actually." |794|

The workshop was organized into three panels, which presented on operational challenges in interpersonal deception and deception detection, technological advances and behavioral challenges, and empirical and ethical challenges. At each of the panels, a group of between three and five academics or researchers presented their research to the rest of the group. |795| One of the participants in this workshop said that the research presentations were made to a group of individuals who did not introduce themselves, whom the participant understood to be individuals from the Defense Intelligence Agency. |796|

After the pair of conferences at the end of June, Mumford and Brandon continued to collaborate on conferences throughout the fall of 2004. In October, APA and DOJ co-sponsored a conference on the topic of "Suicide Terrorism," which Robert Kinscherff moderated, and in November, APA and DHS co-sponsored a conference on the topic of "Charting a Course for Homeland Security Strategic Studies." |797|

D. The Task Force on the Psychological Effects of Efforts to Prevent Terrorism

As APA gained a growing awareness of the effects of the Bush administration's policies on interrogations, senior staff nonetheless dampened membership activity that could be perceived as opposed to the administration. In February 2003, Council allocated funds to support a newly-formed Task Force on the Psychological Effects of Efforts to Prevent Terrorism, |798| to be chaired by Paul Kimmel. Philip Zimbardo, former president of the APA, was a member of the task force, as were Nina Thomas and Michael Wessells, both of whom would later be selected as members of the PENS Task Force. |799|

In a subsequently published book, Kimmel explained that the Task Force produced a report designed to examine the effects and unintended consequences of strategies adopted by the U.S. to prevent terrorism. The Task Force concluded that the stressful environment created by the war on terror "often leads authorities to overestimate the threat and consequences of terrorist activities and to make poor decisions in trying to prevent these activities." |800| It recommended that "psychologists take the lead in providing impartial and objective information about terrorism and efforts to prevent it. We can use our knowledge about enemy images, stereotyping of other groups, and the processes of group think to open a space for debate, discussion, and interpersonal engagement." |801|

Almost from the beginning, APA staff and governance worked to undermine the task force's efforts. In April 2003, Judy Strassburger, Norman Anderson, and Robert Sternberg discussed "trimming" the Task Force on the Psychological Effects of Efforts to Prevent Terrorism as a means of "getting the task force going." They agreed to deliver the request to Paul Kimmel, who chaired the task force, after the Board meeting so that they "could say the Board discussed and feels" that reducing the size of the task force is appropriate. |802|

In early May, the task force produced a report consisting of an introduction by Kimmel and a compendium of thirteen papers from the members of the task force. The report assessed the psychological effects of "living in a nation 'at war'" with terrorism, including stereotyping and bias against immigrant populations, a growing sense of fear and helplessness in traumatized populations, and a burgeoning sense of "militant patriotism." |803| By mid-July, senior staff in the APA were becoming more concerned about possible media attention devoted to the task force's report because it could do "real harm to APA's public image." |804| Farberman expressed concern with "the slant of the report (anti-Bush) and some of the specific language," including phrases such as "militantly patriotic policies" and the sentiment that the "current administration has weaponized fear in the war on terrorism." Farberman also identified "some 'science' problems" with the report, and commented that she hoped that Council would either edit or refused to accept the report. Strassburger suggested putting the issue on the agenda for a Board executive session, and Anderson agreed that the Board needed to give Farberman some "cover." |805|

At the July 27, 2004 executive session of the Board meeting, the Board requested that Board member Sandra Shullman ask Kimmel to consider postponing the presentation of his report until the February 2005 Council meeting to allow time for the Boards and Committees to review the report. |806| At the upcoming Council meeting only a few days later, Kimmel was approached by President-elect Ronald Levant, Rhea Farberman, Nina Thomas, and Sandra Shullman, who convinced him that the APA could only "receive" the report but not take action on it in its current form, and that it would be best to send the report for approval through the Boards and Committees. |807| Kimmel accepted their guidance and amended the report before submitting it to several interested boards and committees. |808|

In August 2004, Kimmel explained that he had complied with APA staff's recommendation to postpone his presentation of the report to Council only because he understood "that going through the Boards and Committees was necessary for adoption which is a stronger action [than Council receiving the report] and allows APA to do more to use and publicize our work." |809| Farberman drafted a response to explain to Kimmel that the report would be included as an item in the cross cutting agenda at the Board and Committee consolidated meetings, and that after the report was reviewed by the full governance structure, Council could choose to receive the report. Anderson commented to staff that he "didn't get the sense from the board that we wanted to move the report toward adoption." |810|

The report was placed as an agenda item in the Fall Consolidated meetings. |811| After several months of deliberations, the Board recommended to the Council that the report of the task force should be rejected in its entirety. |812| At the following Council meeting, Council approved a motion that "thank[ed] the Task Force on the Psychological Effects of Efforts to Prevent Terrorism and refer[red] the Report of the Task Force to the Board of Scientific Affairs to provide perspective and encourage further development of these topics." |813| Kimmel said that Levant skipped over the presentation of the report in the agenda and pushed discussion back until the end of the Council meeting, when he recorded a unanimous vote rejecting the report despite several votes in favor. He explained that because of this omission, he did not have time to present any information or speak in support of the report. |814| APA never accepted the report in any form, and it was eventually published with an independent publisher under the title "Collateral Damage: The Psychological Consequences of America's War on Terrorism."

The APA's response to Kimmel's task force demonstrates that, by 2004, the APA was guided by political considerations to obstruct member initiatives that were critical of Bush administration policies in the war on terror. There might have been legitimate concerns about the scientific basis of the report, as Farberman described, or those concerns might have been pretextual; regardless of the validity of the scientific concerns, however, it is clear from internal communications that APA's motivation in discouraging the acceptance of this report was at least in part based on an effort to appease the Administration. In short, APA staff used internal governance processes to hold back membership initiatives that expressed criticism of the government's counterterrorism initiatives out of fear of angering the Bush Administration.

E. Abu Ghraib Media and Internal Response

In April 2004, reports of abuses at Abu Ghraib began to receive widespread media attention. As media scrutiny of detainee abuses intensified, APA began receiving inquiries about psychologists' involvement in torture, either through designing interrogation techniques, facilitating interrogations, or "looking the other way" when abuses occurred. |815| In response to such inquiries, Behnke emailed a senior group of staff and governance members the following:

    These are, obviously, complicated issues, and psychologists working for various parts of the government are involved in investigations that implicate national security. In the past few months, our folks in the Science Directorate (Geoff Mumford) have been approached by people in government wanting to discuss the ethics of psychological techniques being used in government investigations. I think there are appropriate and inappropriate ways for psychology to be involved, and would suggest a cautious approach, where we, as an organization, look at the issues in a considered and thoughtful manner, perhaps by way of a task force.

    At the moment, there are intense feelings about this issue. I would recommend a reply that conveys our appreciation of the seriousness of the matter and our interest in identifying the ethical issues that arise when psychology is used as an investigative tool. I would recommend against a reply that casts a shadow on psychologists who work for government agencies in investigative roles, or a reply that suggests that, by virtue of recent events, such psychologists are under some sort of suspicion. Rather, I would suggest that it is in everyone's interest that as an organization we are as helpful as we can be in promoting the ethical role of psychology in investigations, including investigations to protect our national security, and that we want to do what we can as an organization to discourage investigative techniques that are not consistent with our ethics. |816|

This was the first time that Behnke raised the idea of a task force to address ethical issues raised in national security contexts. Notably, even from this early date, Behnke took the approach that it was appropriate for psychologists to be involved in national security investigations, and that it was important to support psychologists working in such roles.

Although these press reports and member inquiries do not prove that APA staff knew that psychologists were facilitating interrogations using abusive techniques, the internal APA communications as of May 2004 are sufficient to demonstrate that senior APA staff should have been on notice that psychologists were working in environments where such abuses were rampant. At that time, senior staff in the Ethics Office and Science Directorate were aware from Hubbard's earlier inquiries that psychologists were being asked to participate in activities at Guantanamo in ways that raised potential ethical issues. In May, APA staff also learned that Larry James was being deployed to Iraq "to be Chief Psychologist at that prison," presumably Abu Ghraib. |817| Therefore, it seems likely that APA staff were aware that psychologists were working in settings where detainees were being subjected to abuse, and that they were being faced with the ethical dilemmas presented by those abuses.

F. The Legal Framework

In May, as concerns about prisoner abuses at Abu Ghraib spread, Heather Kelly, Geoff Mumford, and Steve Breckler began working to put together a congressional briefing that would educate congressional staff and federal agency personnel regarding psychological science related to the issue of prisoner abuse. They scheduled the briefing for June 10, and began recruiting speakers for the event. |818| By early June, they had determined that Steve Breckler would present on the topic of "How can the Science of Human Behavior Help us Understand Abu Ghraib?" and Kevin Murphy |819| would present on the topic of "How can Psychological Research in Military Contexts Help Us Prevent Another Abu Ghraib?" |820|

On June 9, the day after the Washington Post broke the story publicizing the contents of the OLC memoranda and the day before the scheduled briefing, Mumford began reaching out to his contacts in the government to express concern about how the story might affect the following day's briefing. He asked Gerwehr to participate in a "semi-emergency call triggered by the DoJ memo and our briefing tomorrow," |821| and reached out to Hubbard for advice regarding questions that might arise around the memo. |822| There is no evidence showing that either Hubbard or Gerwehr discussed the memoranda with Mumford before the briefing.

In an internal discussion with APA staff and the two speakers for the briefing, Mumford expressed concern over the references to "psychological techniques" the Post made when discussing the OLC's definition of torture. |823| Murphy responded that "[t]he thing that makes this especially worrisome is that if the White House, DOJ, and DoD were being advised by counsel that anything goes during time of war, the admonition that everything needs to be done in a legal way does not do much good." |824|

This exchange demonstrates that APA staff were aware that the definitions used in the OLC memos rendered bare statements regarding prohibitions on torture toothless. The June 7 Wall Street Journal article about the report of the working group from March 2004 and the June 8 Washington Post article about the OLC memoranda indicated that the rules and standards regarding torture were no longer clear-cut, and that it was not feasible to rely on the legal framework to prevent activities that could amount to torture. Even had APA staff failed to understand that point, Murphy made the connection and raised the explicit concern to Behnke and other APA staff that relying on legal guidelines to prevent torture would be inadequate. Thus, it is not credible that APA would think a prohibition on "torture" was sufficient guidance during the work of the PENS Task Force the following year.

G. Requests for Ethical Guidance

After the Abu Ghraib abuses came to light, APA staff stated in internal communications that they began to field a greater number of inquiries from government personnel regarding "the ethics of psychology as a tool in national security investigations." |825| Behnke elaborated in an email to Russ Newman that "in the past few months, the Science Directorate has been approached by people in government wanting to discuss the ethics of psychological techniques being used in government investigations." |826| In an interview, Behnke stated that his reference to inquiries from the government related solely to the email from Kirk Hubbard in March 2004. |827| It seems unlikely that Behnke would write that the "tempo" of the discussions prompted "by people in government wanting to discuss the ethics of psychological techniques being used in government investigations" |828| was increasing if he were referring to only the single inquiry from Hubbard. However, Sidley found no evidence of other inquiries made to the APA during this time.

Senior staff began discussing how best to bring colleagues from the CIA into the discussion. Mumford suggested that Hubbard might be interested, though he was "more involved in recruiting assets," and that Andy Morgan "may know more about the PsyOps stuff" because of his role in training DoD personnel to resist interrogation, and was "the one who really wanted to see this be an APA/ApA collaboration." |829|

By late April, it seems likely that APA's discussions regarding the ethics of national security interrogations had reached some of their contacts in the military. At that time, Larry James reached out to Anderson to request that he be permitted to serve on a "sub-committee on terrorism" that he had heard APA was forming. |830| James's request suggests that, even before the APA formally convened a meeting to discuss the ethical issues, there might already have been internal discussion of a future task force or other working group to discuss ethical issues raised in the national security context.

In May 2004, APA staff met internally to plan a meeting that brought together individuals from the mental health professions and government agencies for a discussion of the issues. In the invitations Behnke subsequently circulated to government personnel, he emphasized that:

    The purpose of this meeting is to bring together people with an interest in the ethical aspects of national security-related investigations, to identify the important questions, and to discuss how we as a national organization can better assist psychologists and other mental health professionals [to] sort out appropriate from inappropriate uses of psychology. We want to ask individuals involved in the work what the salient issues are, whether more or better guidance is needed, and how best to provide guidance (e.g., through ethics consultations) that may be deemed appropriate or helpful. I would like to emphasize that we will not advertise the meeting other than this letter to the individual invitees, that we will not publish or otherwise make public the names of attendees or the substance of our discussions, and that in the meeting we will neither assess nor investigate the behavior of any specific individual or group.

    ...

    The Ethics Office and Science Directorate would like to take a forward looking, positive approach, in which we convey a sensitivity to and appreciation of the important work mental health professionals are doing in the national security arena, and in a supportive way offer our assistance in helping them navigate through thorny ethical dilemmas, if they feel the need (informal conversations with people in the field suggest the need is there). |831|

Behnke's communications with respect to the meeting at APA in July 2004 demonstrate that long before the PENS Task Force was created, Behnke's position was that the APA should be supportive of psychologists working in national security settings and should work to construct an ethical framework that allowed them to remain in those roles. In an interview with Sidley, Behnke explained that this forward looking approach is consistent with his general outlook on ethics, in which the primary focus is on education and consultation rather than adjudication. It seems fair that Behnke's general approach to his role as Ethics Director emphasized forward-looking consultation over backward-looking adjudication; however, that his preferred approach was to provide consultation and guidance does not inevitably lead to the conclusion that the ethically appropriate guidance would permit psychologists to participate in interrogations. Behnke's early communications on issues related to ethics and national security demonstrate that he assumed the appropriateness of psychologists participating in such roles, and that he and APA then constructed an ethical framework on the basis of that assumption.

Although it seems clear that Behnke arranged the July 2004 meeting in the context of Hubbard's inquiries from March 2004, other individual identified to Behnke and Science Directorate staff ethical issues associated with the potential for exploitative research on deception detection. In early May, Martha Davis responded to a request from Susan Brandon for research ideas extending into the next decade. Davis commented that "research on deception detection in real world contexts" will have developed over the years, and "[t]hat leaves the political and ethical issues surrounding a subject that is exquisitely vulnerable to distortion, oversimplification and abuse." She trusted that APA would continue to strengthen ethics guidelines in this area, but commented that "what feels well beyond my realm as a researcher are the political forces which can push the research forward, shaping and potentially exploiting it in ways that are empirically and ethically suspect." |832| Jennifer Vendemia, another researcher focusingon deception issues, raised similar points about ethical dilemmas in the area of deception research. |833| She commented that an organization "must be founded that deals exclusively! With the ethical dilemmas of [deception] research. Deception research will be applied to the theatre of war, one on one interrogations, and screening applications. . . . We are talking about a huge change in the way psychologists work with the government, and we need to not only have protection but also safe ethical guidelines." She asked Brandon who she could talk to about such an effort at APA, and Brandon forwarded her inquiry to Mumford, who then forwarded it to Behnke. |834|

These concerns mirrored the ethical concerns that had been raised by physicians and psychologists in the CIA's Office of Medical Services since the interrogation program began. One witness stated that the idea of research on the interrogation program was "alive and well" within the CIA, despite agreement within OMS that such research was unethical without informed consent. However, this witness knew of no link between APA and any research program the CIA might have conducted, and he explained that any changes in the APA Ethics Code to permit such research would have had no effect on federal law set by the Department of Health and Human Services. |835| Thus, as discussed above, regardless of whether or not DoD ran research program on detainee interrogations, Sidley has uncovered no evidence that APA facilitated such research.

However, even if APA was unaware of research programs run by the CIA and DoD or ethical concerns regarding such research raised internally within the CIA, these communications show that as of summer 2004, Behnke had been placed on notice that research on deception in the national security context raised complicated ethical issues. Despite these issues raised by researchers participating in APA-sponored conferences, during the PENS meeting more than a year later, a group designated to consider ethical issues in precisely this context recommended pursuing research related to interrogations without addressing the obvious concerns.

H. Additional Interactions with Mitchell and Jessen

In mid-June, Hubbard and Mumford exchanged emails relating to the possibility of Jim Mitchell participating in a seminar hosted by the National Academies of Science ("NAS") on the topic of coercive interrogations. The NAS was hoping to find individuals to represent a range of perspectives on coercive interrogation, and turned to the Science Directorate for recommendations for "speakers who would SUPPORT coercive interrogation tactics." |836| In response to this same request, Mumford also reached out to Robert Kinscherff, who suggested that Behnke might have contact information for Michael Gelles or Robert Fein. |837|

Hubbard informed Mumford that "Jim" would likely not be able to participate because "Jim and Bruce will both be in Hawaii on July 30." Hubbard added that he "would hope you could assist in ensuring that their association with my organization is not divulged [if they were to participate]. The[y] have significant prior DOD experience in this area and now have a private consulting business." Mumford assured Hubbard that "we always aim to be very discreet in making any associations with your organization and don't want to (and won't) do anything to jeopardize our harmonious working relationship." |838|

Only a few weeks later, Mumford emailed Steve Breckler about a potential meeting with two "former CIA staff psychologists (known only to me as Jim and Bruce) who have been intimately involved in setting up the protocols for interrogation in Iraq and elsewhere. It obviously wouldn't be for attribution but might be an interesting opportunity for us to have a better understanding of what goes on inside. . . ." |839| Mumford later told Brandon that Hubbard was arranging the meeting to discuss "interrogation practices," and that it was likely that she would be able to join. |840| There is no documentary evidence showing that this meeting ever occurred, and Mumford could not recall any follow up to the email. |841| It is possible that Mumford met with Mitchell and Jessen at the 2004 APA Convention in Hawaii, which Mitchell and Jessen were scheduled to attend, but the communications do not prove that such a meeting happened. Mitchell said that he could not recall having ever met with Mumford. |842|


VI. ETHICS AND NATIONAL SECURITY: JULY 2004 - NOVEMBER 2004

In July 2004, APA took its first formal step toward address the ethical issues being raised by psychologists' involvement in national security settings. APA staff explain that the purpose of this meeting was to address a broad range of issues related to psychologists working in the military and other government agencies involved in national security. They assert that abusive interrogations were only one relatively insignificant part of the issues that the meeting was designed to address. However, it seems likely that one of the primary purposes of this meeting was to address the ethical issues related to interrogations. By this point, APA staff had already communicated internally about ethical issues related to national security investigations, and had fielded at least one request for ethical guidance related to activities in which psychologists were asked to participate at Guantanamo. Moreover, APA staff members were surely aware of the many public reports of rampant human rights abuses against detainees held in the war on terror. Therefore, as APA gathered together ethics experts and representatives from the CIA, CIFA, DHS, and other government agencies serving the national security mission, it seems improbable that one of the primary issues on the agenda would not be the ethical implications of psychologists' participation in interrogations.

A. July 20, 2004 APA Ethics and National Security Forum

On July 20, 2004, the APA's Ethics Office hosted a forum on Ethics and National Security to bring together representatives of the FBI, CIA, and DoD for a discussion of "the ethical issues in the use of psychology in national security-related investigations" and an exploration of "how APA and other professional and scientific organizations can serve as a resource for psychologists and mental health professionals who participate in these investigations." |843|

Shortly before the meeting, Mumford invited his government contacts in various agencies, including Hubbard, Morgan, Band, Kennedy, and Brandon, to attend the meeting by forwarding Behnke's message explaining his "forward looking" approach and emphasizing that he would focus on identifying important ethical questions and offering assistance to psychologists "navigat[ing] through thorny ethical dilemmas." |844| Mumford also forwarded the exchange to Anderson to inform him that APA would be holding a meeting on this topic, and that "[t]he effort has the active and enthusiastic support of the CIA, DoD and FBI." |845|

In addition to Behnke, several APA staff and former governance members attended, including Robert Kinscherff, the former Chair of the Ethics Committee who had responded to Hubbard's request for ethical advice several months earlier; Mel Gravitz, the psychologist who had served on the CIA's Professional Standards Advisory Committee; Mike Honaker, Deputy CEO of APA; Russ Newman, the Executive Director of the Practice Directorate; Steve Breckler, Executive Director of the Science Directorate; Geoff Mumford, Director of Science Policy; Heather Kelly, Senior Legislative and Federal Affairs Officer in the Public Policy Office; Sara Robinson, Legislative Assistant for Science Policy in the Government Relations Office; and Lindsay Childress-Beatty, Deputy General Counsel. |846| Rhea Farberman chose not to attend the forum "[b]ased on our decision to separate the public communications issues from the ethics issues." |847| Farberman's email reflects APA's concern with its messaging on ethical issues in the national security setting, a concern that echoed through their earlier response to Hubbard's inquiry and their later communications during the PENS Task Force.

The APA also included Jeffrey Janofsky and Robert Phillips as representatives from the American Psychiatric Association ("ApA") and Mark Frankel from the American Association for the Advancement of Science, as part of a collaborative effort to address the ethical dilemmas facing all mental health professionals asked to consult on interrogations.

Steve Band and Anthony Pinizzotto attended the forum on behalf of the FBI's Behavioral Science Unit, |848| and Kirk Hubbard and Judy Philipson |849| attended on behalf of the CIA's Behavioral Science Unit. Scott Shumate and Kirk Kennedy were invited to attend the meeting as representatives of CIFA, a division of the Department of Defense, though only Shumate was able to do so. Also in attendance was Susan Brandon, the former APA Senior Scientist who subsequently moved to a position in OSTP. After the meeting, Behnke drafted a brief description of the meeting for Brandon to show her superiors at the White House to account for where she had been at the time. |850|

Several contractors to the FBI, CIA, or DoD were also present at the meeting. These contractors included Robert Fein and Michael Gelles, who would later serve on the APA's PENS Task Force, and Andy Morgan, the psychiatrist on Hubbard's Behavioral Science staff who had raised ethical concerns several months earlier.

It is likely that many of the operational psychologists involved in these discussions were concerned that the professional associations might in some way impede their work. Gelles explained that, at the time of the meeting, many operational psychologists from various intelligence and law enforcement agencies were meeting about once a year to discuss how to define their role in accordance with ethical guidelines. He believed that many psychologists were talking informally about how to ensure that the work they were doing would not stop. |851|

As noted above, in his invitation, Behnke assured participants that APA "will not advertise the meeting other than this letter to the individual invitees, that we will not publish or otherwise make public the names of attendees or the substance of our discussions, and that in the meeting we will neither assess nor investigate the behavior of any specific individual or group." Band responded that he appreciated being assured that the names and affiliation of attendees "will not be a media event." |852| Childress-Beatty expressed surprise that the participants would object to their names being released, and Behnke responded that "this particular group of folks is sensitive to those issues." |853|

The day before the meeting, Behnke prepared an outline of his opening remarks and shared it with Gilfoyle and Childress-Beatty to solicit their thoughts. In the outline, Behnke identified four goals for the meeting:

    1) identify the ethical issues that arise in the use of psychology or psychological techniques in national security-related investigations; 2) discuss how the American Psychological Association and other professional and scientific organizations can serve as a resource for mental health professionals who participate in national-security related investigations; 3) identify resources, for example journal articles that raise and address the relevant ethical issues, as well as other individuals with a particular interest or expertise in this area; and 4) determine whether ongoing contacts among the group would be useful, for example additional meetings to continue our discussion, panels or workshops at national conferences, or articles in journals or newsletters to stimulate discussion in the broader investigative and intelligence communities.

Behnke also identified a number of points he wanted to emphasize during his introduction to the forum. Many of his points focused on the "goodness of fit" between the ethics codes and the situations with which many professionals struggle during their practice in national security settings. He concluded by noting that "the risk of not addressing these issues are [sic] that mental health professionals will stay away from this work, out of a concern of exposing themselves to legal and ethical liability, or that mental health professionals who do engage in this work will become split off from their national associations, because of a feeling that the national organizations do not understand what they do. Either would be a highly undesirable outcome." |854|

When Kennedy learned that he would be unable to attend the forum, he wrote an email to Hubbard explaining his thoughts on the importance of APA creating "an entity to take on a positive consultation role to the intelligence community." He explained that the Intelligence Community ("IC") "is often ill-served by a few unethical/unprofessional psychologists" because it is sealed off from professional oversight boards and "IC management is generally insensitive to professional ethical issues, [which] sets the stage for breeding the same insensitivity in the psychologists it employs." Kennedy explained during an interview with Sidley that he was thinking about OMS officers who manipulated case officers into letting them consult on cases when he raised these points. |855| Moreover, he noted that Intelligence Community managers and early-career psychologists lack resources when they have ethical questions, and "more senior psychologists are not always the best resource especially since they may be part of the problem." Kennedy thought that, were the APA to set up an ethics consultation board for the Intelligence Community, psychologists would have a resource to turn to for addressing ethical issues, such as confidentiality and multiple relationships. Such a board might also develop professional standards and a certification program for the area of psychological consultation. Finally, Kennedy noted that "[t]he APA Ethics Code seems primarily geared for the therapeutic context" and that it could be difficult to adapt it "to provide ethical guidance for consultation in the IC." |856|

Although many of Kennedy's ideas related to a consultation board were not discussed at the meeting on July 20, his final point related to the Ethics Code's applicability in national security settings became an important theme of the discussion. One of the primary topics of discussion at the meeting was the "goodness of fit" between the APA's ethics guidance and the role of psychologists in national security investigations. Robert Fein commented that he had attended an FBI conference at which they "concluded that the [E]thics [C]ode was indeed a poor fit." Kirk Hubbard most strongly stated that "the current code does not apply at all [to] the national security investigation situations–it's not mental health we're concerned with, but national security; we are supposed to exploit and manipulate the interrogatees to gain crucial information." He later emphasized that "beyond [torture], we have no ethical duty to the interrogatee." Jeffrey Janofsky offered the alternative perspective that, even if the client is the interrogator, psychologists and psychiatrists still "have some duty to the detainees" and that they "can't just drop your ethical guidelines when you take off your 'psychologist hat.'" |857|

Although no record of further discussion on this point appears in the collection of notes from this meeting, several other participants said that they strongly disagreed with Hubbard. Kennedy said that Shumate and Hubbard argued over Hubbard's position. He also explained that, after this meeting, it became clear to Kennedy that he did not have the same views as Hubbard, and he did not speak to Hubbard often after this point. |858|

Another recurring theme raised during the meeting was that the traditional rules designed to fit a clinician/patient relationship did not seem to apply in national security contexts. This theme became particularly prevalent when the group discussed the identity of the client in national security contexts. At one point, Michael Gelles cautioned "it's important to remember the client is the interrogator, not the interrogatee–these are not patients." He attempted to steer the conversation towards boundaries, rather than rules and guidelines, as an attempt to cabin "how far psychologists should go."

Several participants also expressed concerns regarding the pressures psychologists felt to give advice in areas outside their expertise in "high stakes" situations. Mel Gravitz commented that "we have a responsibility to provide credible, ethical service" as both citizens and psychologists. |859| Andy Morgan elaborated that psychologists and psychiatrists were "pressured to offer consultation and opinions" even in "areas were we have no training." Gelles agreed that "psychologists get pulled into a process where our expertise is demanded" but queried how to "define our competence." |860| He identified a number of possible roles for psychologists consulting on interrogations–such as observing "behind the glass," sitting in the room, designing the strategy, or writing the script–which might raise different ethical dilemmas. |861|

Some participants raised the idea of "relative ethics," such that there was a "continuum of coercion from benign to not at all benign, depending on how high the stakes are." Shumate invoked the "ticking bomb scenario," and queried how the ethics standards applied in practice "in the context of competing duties and oaths," such as the oath to protect and defend. |862| Behnke seemed to agree with this "relativist" position, stating that "there are exceptions to each rule in the code, where some other value or goal trumps another." |863|

Another consistent concern was the lack of empirical data available to assess risk, and the inability to conduct the necessary research because it would be unethical. The participants lamented that the y could not access a community of colleagues or experts on these issues because much of their work was classified. Robert Kinscherff commented, however, that there are "lots of naturalistic experiments going on" relating to the question "at what point does deception work." |864| Andy Morgan also made a comment about "using available venues to conduct empirical evaluations." |865|

Although the basic question of whether mental health professionals should conduct interrogations at all was raised during this meeting, |866| it was given little attention; instead, the relevant question soon became not whether psychologists should participate, but how they could do so ethically. |867| Behnke explained that he interpreted the position that psychologists cannot be involved in interrogations as meaning, through logical extension, that interrogations are unethical. He found this position unrealistic, and viewed interrogations as inherently a psychological activity where it made sense for psychologists to be involved. |868|

Behnke said that he was mindful at this time of pressures from both directions. He explained that in hindsight, all of the pressure is coming from one direction in favor of greater protections for detainees, but at the time he wanted to be cautious because of the potential for another attack that could bring pressure from the other direction. Behnke wanted APA to find a way to be anchored in the middle. |869|

B. Follow Up to the National Security Forum

After the meeting, Behnke sent an email to Honaker, Gilfoyle, and Childress-Beatty to relay the appreciation of the "investigative community" that APA had reached out on this issue. He added: "As the national organization, we should be on the cutting edge of the discussion/debate about the ethics of this issue–if we aren't, that particularly community of psychologists is likely to 'give up' on APA and go their own direction, as was alluded to during the discussion, which would be a very undesirable outcome for a variety of reasons." |870| Behnke explained that he meant that the APA should be on the cutting edge both in leading the discussion on these issues and in giving the best substantive guidance possible. Behnke wanted to develop "state of the art" rules to demonstrate that APA was an appropriate venue to seek ethical guidance and to have discussions on these issues. |871|

Behnke also emailed the participants to thank them for their contributions. Band responded that the "important and timely gathering was one of the most significant meetings I have attended this year. . . . During this time of war, I am drawn to part 1.02 of our (APA's) ethical principles and take comfort in my interpretation of this standard. Towards that end, I truly look forward to your leadership, guidance and future meetings as we hazard forward." |872|

Behnke also contacted Janofsky, the representative from ApA, to express the hope "that our two APAs can collaborate on this issue, to everyone's benefit." |873| In September, he attended the annual meeting for forensic psychologists, which covered the same topics as the July meeting hosted by APA. |874|

In September, Kennedy approached Mumford to follow up on a discussion they had during the June 24 interpersonal deception workshop regarding the creation of an "APA fellowship at CIFA along the same lines as was done with Kirk Hubbard at CIA." Mumford, Kelly, Shumate, and Kennedy subsequently met for lunch to discuss collaborating on the fellowships, and Kennedy also suggested that "[p]erhaps there is a way to collaborate further on ethical issues as well." |875| At the meeting, the group discussed the need for APA to re-establish ties with psychologists in national security and intelligence settings and the possibility for future collaboration on ethics issues. As concrete steps in this direction, they proposed developing summer science fellowships at CIFA, creating an APA division related to intelligence work, |876| and establishing a behavioral science advisory panel for CIFA. |877|

Aside from these small-scale meetings, APA did not immediately begin to orchestrate a more cohesive strategy to follow the July 20 forum. On September 23, Brandon emailed Behnke to offer her assistance in pursuing the issues and concerns raised at the meeting, noting that she "met recently with two psychologists who are at DOD Counter Intelligence Field Activity (CIFA), one of whom was at that meeting (Scott Schumate [sic]). Both are looking for ways to engage good psychology–and good science–in what they and their colleagues do. Part of that is confronting some of the issues raised at that meeting." |878| In a side conversation several weeks later, Mumford emphasized that they needed to "keep the pressure on to do something," in part because "Schumate [sic] expressed some disappointment yesterday that APA wasn't more public about convening such a meeting and I'm with him on that . . . so maybe we can talk about the value of demonstrating leadership more openly." |879| Brandon added that she "heard the same from Scott [Shumate] and Kirk [Kennedy]." |880| Mumford and Brandon continued to discuss how best to motivate Behnke to push forward APA's response on this issue.

Sidley spoke to Brandon, Mumford, Shumate, and Kennedy regarding this issue, and they clarified that they wanted APA to publicly acknowledge their leadership on these issues. Brandon said that it was important to her for APA to acknowledge that psychologists were facing ethical issues, and Mumford said that he agreed that it would have been beneficial to be proactive in a more public and transparent way to demonstrate leadership on this issue. |881| Kennedy confirmed that he had pushed the APA to have these ethics discussions because he wanted to support efforts to develop ethical methods of educing information, and because he knew that information would eventually come out about psychologists' involvement in interrogations that would make them look bad. |882| Shumate also explained that it was "incumbent on the key players" to keep the ball rolling on this fundamentally important question, particularly with respect to pushing for research on these complicated issues. |883|

Even as the APA began to seriously consider the ethical issues raised by psychologists' involvement in interrogations in the latter half of 2004, |884| media pressure continued to build. On August 20, Steven Miles published an article in The Lancet titled "Abu Ghraib: Its Legacy for Military Medicine." |885| The article alleged that Army doctors stationed at Abu Ghraib had designed and implemented coercive interrogation techniques and deliberately covered up torture and other human rights abuses by falsifying medical records. And on November 30, 2004, Neil Lewis published an article in the New York Times that served as a watershed moment for the APA, forcing the association to take action and make a public stand on psychologists' participation in interrogations in the national security context


THE PRESIDENTIAL TASK FORCE ON ETHICS AND NATIONAL SECURITY ("PENS") AND INITIAL AFTERMATH

This section discusses the significant aspects surrounding the development and discussions of the PENS Task Force. It recounts the formulation of the task force starting in late 2004 and early 2005, the task force exchanges and meetings through the spring and early summer of 2005, and the PENS report and its approval in late June and early July 2005. The section also covers the immediate aftermath of the report and interconnected issues that occurred one and two years after the PENS report was completed. Additional actions that followed from the PENS Task Force in later months and years, such as supplemental APA resolutions or government-related interactions, are discussed in the next section of this report.

I. CREATION OF PENS TASK FORCE AND SELECTION OF MEMBERS

Discussions were renewed and sharpened at APA in late 2004 and early 2005 about creating a task force focused on ethics and national security. It is clear from the contemporaneous emails that the cause of this renewed discussion was a late November 2004 New York Times article discussing psychologists' roles in interrogation settings at Guantanamo Bay and Iraq, and subsequent articles. |886|

A. November 29, 2004–January 4, 2005: Neil Lewis's New York Times Article and Early Discussions of a Task Force

1. The November 30 article and resulting internal APA discussions and reaction

On November 30, 2004, the New York Times published a front-page article by Neil Lewis titled "Red Cross Finds Detainee Abuse in Guantanamo Bay," which described the findings of a recent confidential report by the International Committee of the Red Cross ("ICRC"). |887| The ICRC report, according to Lewis, documented psychological and physical coercion techniques that were "tantamount to torture." The article noted that some detainees were subject to "loud and persistent noise and music," to "prolonged cold," and to "some beatings." |888| The article also directly implicated psychologists who assisted with interrogations at Guantanamo Bay. It described "Behavioral Science Consultation Teams" (commonly referred to as "BSCTs" or "Biscuits")–groups composed of a psychiatrist, a psychologist and psychological support staff according to the article–that "conveyed information about prisoners' mental health and vulnerabilities to interrogators" to assist with interrogations. |889| The ICRC report also noted that BSCTs conferred with medical personnel about the "medical situations of detainees," which may have led to distrust between detainees and the treating doctor. The article cited concerns over whether health professionals, in light of their ethical codes, should be present at Guantanamo Bay while these abuses occurred. Lewis also discussed how some of the abusive techniques were possible given the guidance from the OLC on what (narrow) methods constituted torture. |890|

After seeing the article posted online on the evening of November 29, Stephen Behnke forwarded it that evening to Michael Honaker, Nathalie Gilfoyle, Lindsay Childress-Beatty, Rhea Farberman, Geoffrey Mumford, and Steven Breckler. |891| In his email, Behnke stated "there will be some fallout" from the article, but that it was "very difficult to predict what it will be." |892|

This launched an internal email discussion among top APA staff during the afternoon of November 30 about whether to issue a statement in response to the article. Farberman cautioned that "we don't want to condemn the work [of] some psychologists when we don't know all facts and we also don't want to take sides in a disagreement between the Red Cross and the White House." |893| Behnke agreed that the "information we have is limited to what is in the media" and suggested the following communications strategy on the issue:

    I think our message should be, at least in part: 1) APA has an ethics code, which its members agree to abide by; 2) The media provides few facts about very complicated situations. These situations require a full understanding of the facts before any assessment can be made regarding whether a particular behavior is ethically appropriate or problematic; 3) APA works to promote "the highest standards of professional ethics" (From APA Bylaws) in all areas of psychology- research, education, and practice–and has an Ethics Committee that reviews complaints concerning psychologists' behavior. |894|

    Gilfoyle responded,

    [t]hat all sounds good as far as it goes but the tougher point to me is the question - which seems inevitable - of whether psychologists can legitimately/ethically work with interrogators to identify ways of 'breaking down' a prisoner that fall short of torture. I think the answer to that is probably 'yes', but that is quite tricky to get across without creating a sound bite that could be disastrous. Maybe the answer is 'no' which would be easier. But somehow the easy answer is rarely the correct one, it seems. Anyway it is a question to be ready for. |895|

In her response, Gilfoyle was candidly putting her finger on one of the fundamental problems for APA in taking a position of "engagement"–a position that psychologists could continue to engage in interrogation work at Guantanamo Bay and elsewhere. If there were circumstances in which "breaking down" an uncooperative detainee falls short of "torture" (presumably depending on how the word is defined), and if therefore APA might announce that it was ethical for psychologists to participate in this activity, then providing a public explanation of this position with the necessary level of detail could be a public-relations disaster ("quite tricky to get across without creating a sound bite that could be disastrous"). This problem would remain with APA throughout the PENS process.

Behnke's response 15 minutes later was telling, both because it reveals the strategic and PR way in which he thought about this ethics issue and because one can see how this approach (in combination with other factors) led directly to the highly and intentionally limited nature of the PENS report. Behnke responded:

    I think our ethics program has gotten pretty good at avoiding 'yes-no' type responses (except in clear cases, e.g., it's not acceptable to become sexually involved with a patient), and I think that should be our first line of approach here. I would encourage us to be mindful that we are a scientific organization, so that as an initial matter we look to the science (e.g., what data do we have to indicate that this technique is effective? Do we have data to indicate that this technique is more effective than other techniques that would present less risk of harm?) I would point out that since some of the research in this area is classified, we do not have all the information we may need for a complete ethical analysis. In any instance, we would want to understand the facts, circumstances, and context surrounding a particular behavior before we could determine whether it was ethically appropriate. . . . We need to have a context before we can determine whether a particular behavior is ethically appropriate or problematic in national security-related context. |896|

Behnke also articulated this strategy of avoiding the difficult questions by playing up the lack of perfect knowledge regarding both facts and "context" in a similar exchange with Farberman in the same group email:

    It seems that there are many possible variations in the facts which could lead us to very different ways of thinking about the ethics. Consider, for example: 1) A psychologist who is consultant to a [sic] interrogation team. The psychologist provides information to the team (e.g., the effects of sleep deprivation), but it is the team that makes the decision about how to proceed and use the information the psychologist has provided. [Gives two other scenarios.] One could go on at some length, but I think it's very important for us to be mindful of how dependent our ethical assessment will be on the facts and nuances. . . . What we are talking about now–investigations related to national-security–is an area of psychology in which the ethics are not well developed, and I think we need to be very respectful of the fact that much thinking and development needs to take place before we can begin to declare certain practices ethical or not. |897|

Farberman responded enthusiastically: "Steve - AMEN!! That's exactly the right response." |898|

On December 1, APA leadership held an internal meeting to discuss the article and next steps. |899| By Friday, December 3, 2004, APA had prepared a statement in response to inquiries arising out of the Lewis article, which closely followed Behnke's initial thoughts on November 30, 2004. |900| The statement said in part that evaluating the ethical nature of behaviors was "highly dependent on knowing the facts and circumstances surrounding a behavior," and that APA was "extremely limited" in its knowledge of psychologists' roles in places like Guantanamo Bay and Abu Ghraib. It closed with a reassurance that APA would continue to promote the "highest standards of professional ethics," and would confer with relevant psychologists about "whether APA had given adequate ethical guidance" in these settings. |901|

Behnke's comment that "much thinking and development needs to take place" on the issues before ethical declarations could obviously be considered a fair substantive point. But APA ended up pursuing its course of action not based on additional "thinking and development" on ethics issues, but on strategic and PR considerations. If Behnke and APA had declined to issue ethical guidance or take an ethical position on the issue for (say) 12 months while they carefully studied issues of torture, interrogation practices, the role of health care practitioners in interrogations, and ethical issues relating to war and capture, and publicly explained that they were not issuing guidance because this study was taking place, that would be one thing. But APA did the opposite.

As set out below, in order both to address perceived PR concerns (that APA's silence on these issues was costly from a perception standpoint because it showed an absence of leadership and relevance), and to please the Defense Department (which wanted both timely action from APA that would reflect positively on DoD, and ethical guidelines that gave DoD substantial flexibility and were as close as possible to existing or draft DoD policies on the topic), APA issued a task force report that evaded the difficult questions that APA knew inevitably needed to be answered if psychologists were to be authorized to engage in interrogation activities. Simultaneous with its PENS report, APA claimed that (1) the report was not evasive but was in fact a clear, strong, pro-human rights statement against torture; (2) the report was evidence of APA acting as a "leader" on this issue; (3) the report provided "clear guidance" on this issue; and (4) it was unfair to label the report as evasive because (a) the issue was complicated (so they needed more time), (b) they needed more facts (even though the contemporaneous emails show they expected to never obtain meaningful facts because of the activity's classified nature), and (c) the report should be seen as merely an "initial step" with the promise of a more detailed "casebook" (which never occurred). |902|

In one of his interviews with Sidley, Behnke defended the PENS approach on the ground that APA was new to these issues and, thus, did not wish to go "too far in either direction" at this point in time. |903| But as set out below, the evidence shows that what explains the PENS report is a desire to please DoD by following its requests about how to proceed, and the desire to create a positive-sounding policy statement in a short time frame in order to respond to the pressure of negative press reports.

2. Follow up discussions, including of Newman/Dunivin conflict of interest

By early December, APA members had already begun drafting letters to the organization about inquiring into or investigating the claims raised in the Lewis article. |904| On the morning of Monday, December 6, President-Elect Ron Levant emailed CEO Norman Anderson (copying APA President Diane Halpern and former APA President Patrick DeLeon) in order to forward a message from a psychologist who had sent Levant one such letter. Levant asked Anderson if APA staff could begin looking into the issue to "find out what known facts are" because the issue "appears to be heading for [the Council of Representatives] in February." |905| Anderson responded that APA could gather "the facts as they start to come out" but that "it might be hard to get more (and more accurate) information than the newspapers are getting." Anderson said that "[w]e of course know psychologists at the military base there," but that "given the sensitivity of the issue and the fact that psychologist are being implicated, that might be a little tricky." |906| Anderson also mentioned that Farberman had prepared a draft statement in case it was necessary, and that it was being sent to the Board.

In response to Anderson's reply, DeLeon emailed Anderson without copying the others and inquired whether Anderson knew that Debra Dunivin, wife of APA Practice Directorate Executive Director, Russ Newman, was stationed at Guantanamo Bay: "[You] do know that Russ's wife is there." Anderson replied that he was aware of this. |907| Anderson told Sidley that he knew Dunivin had been deployed to Guantanamo but was not sure whether he was fully aware of her role at Guantanamo at the time. Anderson conceded, however, that he should have explored the issue further with Newman at the time but did not. |908|

That evening, APA's prepared statement was sent to the Council of Representatives. |909| In response, Division 48 Council Representative Corann Okorodudu posted on the Council listserv on December 7 that her Division had "deep concerns" about the Guantanamo Bay issue and that she and other Divisions might submit a "New Business Item" to "allow discussion on the item" at the February Council meeting. |910| APA Board Member and Treasurer Gerald Koocher (who had recently been elected APA President for 2006) responded that there was no point in "discussing this item" unless it was tied to a "proposed action," and action was impossible before one could determine whether the "undocumented allegations" were true.

Koocher suggested it would be better "to propose development of a study or investigative task force (using discretionary funds) that would see what data are available and produce a report and recommendations for the August Council meeting[.]" |911| Okorodudu responded that Koocher's task force idea was part of what she would like to propose at the February meeting. |912|

This was the first reference our investigation found to a potential task force apart from Behnke's mention of a potential task force in summer 2004. |913| Notably, Koocher was proposing it both in reaction to a desire for a more expeditious discussion by Division 48 (potentially to pre-empt an action that might be coming at the February Council meeting), and as an "investigative" task force. Later, Koocher, Behnke and others would strenuously claim that the PENS Task Force was explicitly not set up to investigate potential past abuses or find facts. |914|

Meanwhile, Mumford had followed up on the original November 30 internal email exchange about the New York Times article by forwarding Behnke's initial email to Kirk Kennedy–former CIA and then-Defense Department official who headed a unit within the Counterintelligence Field Activity ("CIFA"). Mumford asked Kennedy what he knew about the Lewis article and the BSCT teams. Kennedy's first response, on November 30, was that he "wish[ed]" he knew something and that he had "no idea what is going on down at GTMO." |915| On December 9, Kennedy followed up to inform Mumford that a source told him that Newman's wife, Dunivin, was currently stationed at Guantanamo Bay as a member of the "JTF BSCT." |916| Mumford responded that Heather Kelly was aware of Dunivin's deployment but that he and Kelly were unsure "about what she was doing down there." |917|

When Sidley asked Kennedy (currently with the FBI) about this email, he said that it was immediately clear to him that the Newman-Dunivin relationship was an obvious conflict of interest for both Newman and APA. He added that if APA weighed in publicly on the issue of interrogation settings, APA was going to have a problem unless it disclosed the Newman-Dunivin relationship and recused Newman from any involvement with the development of its ethics position. |918| As set out below, Newman in fact was involved in the PENS Task Force process in significant ways, ranging from the initial discussions among staff and the Board about forming the task force in January and February to the task force meetings themselves in June; and Dunivin was involved in a critical way in discussions about the composition of the task force in February and March.

In response to Kennedy's email, Mumford shared with Kennedy the statement APA had sent to the Council. Kennedy then urged APA to take strong action to support and guide military psychologists:

    I think it behooves APA's Ethics office to put out a statement that both guides and supports military psychologists. Can you imagine a poor Navy psych intern being assigned to GTMO thinking they were going down there to provide psychological support to soldiers only to be diverted to consulting on interrogations? What would APA do to support a psychologist in this situation? This is just one example of why APA and DoD need to have a rapprochement. The main reason however is that DoD is probably the largest employer of psychologists in the U.S.

    However, I think an APA Ethics statement would have a minimal impact if issued in isolation. Context, as you know is so important. I would advocate for such a position paper to be embedded in an APA Monitor devoted to Psychology in the Dept. of Defense. We could contribute an article on the CI [counter-intelligence] psychology community in DoD. I could suggest names of psychologists, including a past president of APA, who could provide erudite comments to interview questions on military psychology issues. An APA Monitor might go a long way to building the rapprochement. |919|

Mumford replied that he would run these thoughts up through APA for reactions. Kennedy responded, "I look forward to further dialogue - and most importantly, action - on these issues." |920|

3. Initial Board discussion of the Task Force

The possibility of forming a task force was explicitly discussed during APA's Board of Directors meetings between December 10 - 12, 2004. |921| Anderson told Sidley that there was great amount of Board discussion about the topic over these meetings. |922| Behnke had drafted a task force proposal and had provided his draft proposal to Barry Anton in advance of the December Board meeting. |923| Anton may have brought it to the meeting so that funding ofa future task force could be discussed. |924|

The draft proposal is very similar to the task force proposal ultimately approved by the Board in February 2005. Both this draft proposal and the final proposal refer to national security-related "investigations" as opposed to interrogations. A notable change between this draft version and the final version is that the word "coercive" is removed in the Board version. |925| As discussed in greater depth below, Russ Newman appears to have been the originator of this change.

On December 21, Behnke emailed Levant to follow up on the Board's discussion. Behnke said that he understood that the Board had determined that funding should be provided for a task force on the subject, and opined that "this decision was exactly correct, given the sensitivity and potential volatility of the subject, as well as the tone of a Council item that will be put forward in February" (a reference to the proposed Division 48 item discussed above). Behnke said that the Ethics Office would be "happy to provide staffing" or otherwise assist with the task force and "would be happy to suggest individuals" to serve on it. He observed that "some of the people who attended the meeting at APA last July on ethics and national security-related investigations and research would be very good." Behnke specifically mentioned that Robert Kinscherff, a friend and then-chair of the APA Committee on Legal Issues ("COLI"), "would make an excellent chair." |926|

In a follow up December 22 email, Behnke suggested that the funding be increased from $7,500 (the amount tentatively decided upon at the December Board meeting) to $12,500 so that 10 members (rather than six, based on the lower level of funding) could serve on the task force, since "several groups will want representation on the task force." |927| Behnke told Sidley he was referring to staffing the task force with subject matter experts and representatives from Divisions with special interests in the matter. |928|

B. Preliminary Suggestions for Task Force Members, and Russ Newman's Involvement: January 4 – 18, 2005

Early January 2005 brought additional media reports regarding the role of psychologists in interrogation settings and, with it, added urgency from APA to form a task force. Within short order, key APA staff began collecting potential names for the task force.

The conflict of interest on this issue resulting from Russ Newman, the head of the Practice Directorate, being married to Debra Dunivin, the lead Army BSCT psychologist at Guantanamo Bay, was explicitly raised internally and then ignored. Newman became involved in the discussions about the task force nominees and connected with Morgan Banks (the chief Army psychologist with the Army Special Operations Command and psychology leader of the SERE school at Fort Bragg), bringing his suggestions to the staff group.

1. Strategic discussions about lack of "evidence"; Mumford's unsuccessful attempt to raise the Newman/Dunivin conflict of interest

On December 31, Neil Lewis published another article which focused on the interrogation of Guantanamo Bay detainee Mohammed al-Qahtani and said that BSCT teams had been used by interrogators to help "break down" uncooperative detainees during interrogations. |929| This article was forwarded to a listserv Levant was on, and he forwarded the article to Behnke and APA's Executive Management Group ("EMG") on January 3, stating, "[w]e need to get our TF on national security up and running." |930|

In an email exchange on January 4 and 5 between Koocher, Levant, and Behnke about this article, Koocher pointedly suggested that APA would never be able to obtain any "hard data" about whether psychologists were committing abuses at Guantanamo Bay, and therefore as a matter of strategy, APA should simply continue to issue public statements saying it was "concerned" and would look into the matter as soon as such hard data became available (knowing that it never would). |931| Behnke responded that he agreed, and added that "our colleagues in Division 19 [Military Psychology] . . . are especially sensitive to (the appearance of) ethical judgments in the absence of hard data about what has actually occurred." Koocher responded that the concern about Division 19 sensitivity was "why I was trying to suggest" the approach he had suggested in his email. |932|

After Levant agreed and added Farberman and Gilfoyle to the email, Behnke then forwarded to the group the statement APA had sent to Council on December 6 and said he did not think there was much to add. Koocher responded, "Right! We should probably simply [r]epeat same until 'evidence' of anything becomes public in 2055." |933| In other words, Koocher was pointing out that since it was very unlikely that any confirmation of the alleged abuses would come out for 50 years (when classified information tends to become unclassified), APA would be safe by simply repeating the statement it had previously made–that it effectively stood ready to investigate and enforce its Ethics Code if facts emerged, and it could not make ethical assessments until "all the relevant facts and circumstances emerge[d]" |934|

Later in the evening of January 3, Georgetown Law Professor Gregg Bloche contacted Behnke for comment on his and Jonathan Marks's upcoming articles in the New England Journal of Medicine and the Los Angeles Times about medical professionals' roles in interrogation settings at Guantanamo Bay. |935| Bloche, a law school classmate of Behnke's, noted that psychologists in BSCTs have been "much more heavily involved than psychiatrists" in interrogations and inquired whether APA had "issued any relevant guidance (or does it plan to)?" |936| Bloche and Marks' pieces were published on January 6 and January 9, 2005 in the New England Journal of Medicine and the Los Angeles Times, respectively. |937|

On the evening of January 3, Behnke forwarded Bloche's message to Honaker, Gilfoyle, Farberman, and Mumford with a note that he would speak to Bloche off-the-record and convey to Bloche that APA would, among other things, "very actively . . . examine whether our Ethics Code gives adequate guidance to psychologists in such situations, as it is my understanding the American Psychiatric Association is doing as well." |938|

Mumford responded that when they had met in early December, "it seemed there was a sense (a hope?) among some in the room that the story would die but it has, in fact, been part of the news cycle pretty consistently for over a month now." Apparently unaware of Behnke's, Koocher's, Levant's, and the Board's communications in December about a potential task force, Mumford suggested that "APA might want to be in a position of being able to say we have something at the level of a 'Task Force' (or whatever)" to indicate that APA had made the issue a high priority. |939|

In addition, Mumford explicitly (and delicately) raised the conflict of interest concern that Kennedy had raised with him in December regarding Dunivin being married to Newman:

    I'm not quite sure how to put this, but are there issues of perception that we should be concerned about if the wife of the Practice Directorate ED has in fact been deployed to Guantanamo Bay? Presumably, what she does is classified in which case I would not expect Russ to have any additional insight but if our level of activity as an association on this set of issues were questioned, that may be an awkward situation to try and explain and it doesn't appear to be a secret that she's been down there. Just my 2 cents... |940|

Chief Operating Officer Mike Honaker rejected the conflict of interest concern: "[S]ince spouses are not employed by or represent APA we do not need to know anything about what they do." |941| Neither Farberman, Gilfoyle, nor Behnke made any comment in the email exchange about the conflict of interest.

Despite the fact that Honaker was the second-highest ranking officer in the organization and the subject of the conflict of interest point was the powerful (and aggressive) Executive Director of the Practice Directorate (the largest and most prominent directorate within APA), Mumford continued to raise the conflict of interest issue the next day in an email just with Honaker, apparently following a meeting that the group had on January 4 to discuss the issue of how to proceed. In his email, Mumford said that he "understood what you were saying yesterday," but noted that Dunivin was a "voting member of Council." |942| Honaker responded, "but again, do we review what all [C]ouncil members are doing?" Mumford responded one more time, then dropped it: "no it[']s just that Council members make policy for the association so I guess it just puts her closer to the category of 'representing APA.' Not trying to put too fine a point on it . . . just a heads-up . . . . last tag." |943|

Honaker told Sidley that his response to Mumford was not addressing the Newman-Dunivin conflict issue specifically, but related to a different discussion that was occurring around the same time about the inappropriateness of inquiring into the work backgrounds of spouses of APA officials or employees, or the backgrounds of Council members. When asked how one could understand his email responses as anything other than a response to Mumford's direct expression of a concern about Newman and Dunivin, Honaker insisted that he was not responding to Mumford's point but was referencing a different discussion. We asked for details or more information regarding prior discussions about generally not inquiring into the work background of spouses, and he said he could not recall any further details and had "no documentation" for this. He knew that it appeared from this email exchange that he was specifically addressing the Newman-Dunivin point, but he was not, because he believed that Mumford made a good point and he believed that the Newman-Dunivin situation was a significant concern. |944|

By the first week of January 2005, then, the conflict of interest issue involving Newman and Dunivin had been raised three separate times |945| in these interrogation discussions– December 7, 2004 between DeLeon and Anderson; December 9, 2004 between Kennedy and Mumford; and January 4, 2005 with Mumford and several members of APA leadership. More about APA's thoughts on Newman's conflict of interest is discussed below in our summary of the PENS task force observers.

2. Staff recommendations regarding task force nominees, and initial involvement of Morgan Banks

Conversations about who should serve on the task force began immediately. On January 5, Kelly informed Mumford that she "put out the word to Div[ision] 19 and other defense types" about gathering names for the task force, and that Koocher and Levant had suggested Larry James and Morgan Sammons. |946| Kelly also asked Kirk Kennedy on January 5 if he would be willing to serve on a potential task force that APA was putting together. |947| Mumford emailed Scott Gerwehr at the RAND Corporation and Susan Brandon, former APA Senior Scientist and then at the Office of Science Technology and Policy ("OSTP"), on January 5 requesting task force names as well. |948|

Also on January 5, Mumford, Kelly and Behnke met with Mike Honaker, Steve Breckler (Executive Director of the Science Directorate), and Russ Newman; the two related topics were potential task force members and the attempt to get involved with the Army Surgeon General's policy development effort, as revealed in the Bloche and Marks article. |949| In a follow up email, Mumford referenced Newman's "Special Ops colleagues"–a reference to Army Special Operations Chief Psychologist Morgan Banks (and perhaps others)–and said he would be interested in Newman's perspective about how they "would fit into a proposed meeting with the Army Surgeon General and/or other outreach activities." |950| Newman actively followed up on this shortly. More about Newman and Banks's communications are discussed in the next subsection.

On January 6, Mumford, Behnke, and the Associate Executive Director of the Science Directorate, Merry Bullock, met "to talk about balancing the Task Force nominees" (as Mumford said in an email the next day). After or around the time of that meeting, Mumford emailed Behnke and Bullock about the names for the task force "we have so far," which were listed in this order: |951|

  • Michael Gelles
  • Olivia Moorehead-Slaughter
  • Larry James
  • Michael Wessells
  • Phil Erdberg
  • Debra Dunivin
  • Corann Okorududu
  • Listed as "Possible place holders for Science":
  • John Cacioppo
  • Bob Cialdini

After Mumford added Kelly to the email chain on January 7, Kelly responded that Dunivin's current position and access to classified information may "severely" limit what she could say in a task force and recommended that she be included solely as a consultant rather than taking up an "official spo[]t." |952| No comment was made on the email exchange about the Newman/Dunivin conflict of interest point. Kelly also responded that Behnke had just suggested adding Melvin Gravitz to the task force list as well as psychiatrists Jeff Janofsky or Robert Phillips, all of whom had attended the July 20, 2004 meeting at APA. |953|

Separately on January 7, Kelly apparently reached out on this topic to David Ayres, President of Tate, Inc., a consulting firm specializing in personnel recovery training to the government (corporate documents for Mitchell, Jessen & Associates from this time listed Ayres as Chief Financial Officer). |954| Kelly and Ayres had apparently gotten to know each other because their children attended the same school, and Ayres had sent Jessen's resume to Kelly and had suggested a meeting. |955| Apparently in response to an email or phone call from Kelly, Ayres sent Kelly an email with the subject of "We must talk!" |956| Ayres said, "Yes, yes... we focus on these interrogation issues on a daily basis," and said he would call Kelly when he returned to town at the end of January. It is unclear whether Ayres was aware of the task force at this time. |957|

On January 14, 2005, Behnke emailed an interim update to Levant, stating that he and the Science Directorate were compiling a list of task force members, and that the list "will be diverse by professional background and interests, gender, and ethnicity." |958| That day, Behnke sent a draft list of 12 task force names for Kelly and Mumford to review, with a note to discuss the issue of Debra Dunivin. |959| This draft list included the following names, six of whom ultimately became task force members:

  • Jean Maria Arrigo (ultimately becomes a task force member)
  • Col. Paul T. Bartone
  • Phil Erdberg
  • Michael Gelles (ultimately becomes a task force member)
  • Larry James (ultimately becomes a task force member)
  • Joseph Matarazzo
  • Arthur G. Miller
  • Robert S. Nichols
  • Olivia Moorehead-Slaughter (ultimately becomes a task force member)
  • Corann Okorududu
  • Scott Shumate (ultimately becomes a task force member)
  • Michael Wessells (ultimately becomes a task force member) |960|

On January 18, Behnke emailed Levant that the staff had completed its compilation of potential task force members and attached a list for Levant's review, along with short biographical sketches. The list had 17 names and an asterisk next to their top 10 choices. |961| If these ten people had formed the actual PENS task force, it would have been made up of five non-DoD |962| members (marked with a "C" below), four DoD members (marked with a "G" below), and one (Phil Erdberg) who might have fallen in either camp: |963|

  • *Jean Maria Arrigo (C) (ultimately becomes a task force member)
  • *Col. Paul T. Bartone (g)
  • *John M. Darley (C)
  • CDR Anthony P. Doran
  • * Debra Dunivin (G) *Phil Erdberg (G/C)
  • *Michael Gelles (ultimately becomes a task force member) (G)
  • Dennis Grill Joseph Matarazzo
  • Arthur G. Miller
  • *Olivia Moorehead-Slaughter (C) (ultimately becomes a task force member)
  • Corann Okorududu Robert Roland
  • Scott Shumate (ultimately becomes a task force member)
  • *Michael Wessells (C) (ultimately becomes a task force member)
  • *Col. Thomas Williams (G)
  • *Linda M. Woolf (C)

Behnke also said that it would be important to explain some of the task force's conditions up front (including that "task force members may need to take votes on particular matters" and their names would be made available to APA members), since he speculated that active duty military members might not be able to participate on the task force under these conditions. |964| (This and other references to task force members being voting members shows that the suggestions by Behnke and other APA officials after criticisms arose that the ultimate 6-4 DoD/non-DoD split of the PENS Task Force was irrelevant because it was never intended to have votes taken is incorrect.) Behnke also suggested adding a representative from the American Psychiatric Association, but Levant responded that he "would prefer to limit [the task force] to psychology" since it had "the potential of airing dirty laundry." |965|

C. APA-Defense Department interactions, and Board Approval of Task Force: January 19 – February 17, 2005

1. APA attempt to influence DoD policy, and link to task force member selection process

From early January until the Board meeting approving the task force on February 17, key APA staffers and Board members discussed their desire to be involved in the development of Defense Department policy regarding the involvement of mental health professionals in interrogations, for the apparent purpose of trying to ensure that psychologists were as strongly represented within that policy as possible. This would have been important to try to maximize jobs, contracts, and influence for psychologists within DoD, and would have been seen as consistent with the core goals of growing psychology and (to quote Levant's presidential motto) "making psychology a household word." A bad result regarding DoD policy development could have meant that the role of psychologists in these DoD operations would be minimized, perhaps because of greater influence from psychiatry, an issue always present for APA leaders focused on growing psychology. |966| Koocher also explained to Sidley that APA wanted to please DoD in general, like other government agencies, from which it received funding and support. |967| It was clear that the Army Surgeon General's Office was developing relevant policy, but it also appeared that other parts of DoD might be developing similar policies, and it was unclear at this time whether DoD effort was unified, coordinated, or disjointed.

There are also clear indications that, in the mind of some key APA people, including Koocher, Levant, and Behnke (and probably Kelly and Mumford), this attempt by APA to be involved in and positively influence DoD policy was linked to the composition of the soon-to-be-formed task force on ethics and national security. Specifically, emails suggest that selection of DoD officials for the task force may be seen as a show of support for DoD, which may help APA achieve a more positive result from DoD policy in this regard. As it turns out, this is exactly what happened. DoD officials perceived by APA as important were not just selected for the task force but were selected as a majority of the task force, and DoD's policies on these issues (developed and issued in 2005 and 2006 by the Army Medical Command ("MEDCOM") and the Assistant Secretary of Defense for Health Affairs) explicitly included central roles for psychologists (and not for psychiatrists) in interrogation support, |968| a result pointedly noted with delight by various APA officials when these policies became final in 2006. |969|

This DoD policy topic arose on January 4, immediately following the publication of Bloche and Marks's New England Journal of Medicine article. In an email from Behnke to Koocher and Levant (copying Honaker, Farberman, Gilfoyle, and Mumford), he explained that the article referred to "a confidential effort" by the Army Surgeon General's Office "to develop rules for health care professionals who work with detainees." Behnke said that APA could "explore the possibility of collaborating with the Army Surgeon General in some fashion. We could explain that APA is actively examining the ethical aspects of mental health professionals' involvement in these activities and that a collaboration between health and mental health professionals could be very productive." |970|

Koocher's telling response linked APA's attempt to influence DoD's policy development with who would be included on the task force: "This is a great idea. I'd suggest a back channel contact via Morgan Sammons and/or Larry James asking how best to make the offer and (for example) whether Ron [Levant] might nominate them . . . or other members with security clearance, e.g. Robert Fein, to represent psychological ethics issues." |971|

After Levant said he agreed and asked, "How best to proceed?", Behnke confirmed the strategy and discussed implementation: "Let's follow Gerry's suggestion of a back channel contact; I'll confer with Geoff Mumford in Science to make it happen." |972|

Mumford then responded solely to Behnke, although he copied his boss (Breckler) and colleague (Kelly) in the Science Directorate, stating that Kelly was exploring the matter, that they would explore the contacts Koocher recommended "but have others in the mix too (CIFA, Pentagon, etc.), hope that's ok? OSTP has also expressed an interest in being helpful, we'll have to think about how.. .perhaps on the IOM end." |973| Mumford then added in an email just to Behnke: "[B]tw, I'm not copying the big brass because they seem a little impulsive in their use of email and we'll never get anything done." Behnke responded, "good idea. very good idea." |974|

Later in January, Kelly forwarded a letter on behalf of Behnke and APA to Scott Shumate as the Director of Behavioral Science at CIFA. |975| Noting his understanding that DoD Office of General Counsel "may be reviewing or drafting a policy on the involvement of mental health professionals in interrogation settings," Behnke's letter said that APA was "particularly interested in ethical issues" on this topic and offered "the expertise of our disciplinary association as a resource to DoD throughout this process." |976|

2. Involvement of Russ Newman and Morgan Banks

Meanwhile, Russ Newman continued to be involved in the task force development process through his connection with one of the key psychologists in DoD, Morgan Banks, who was the Army's Command Psychologist and Chief of the Psychological Applications Directorate in the Special Operations Command, and who helped run the Army's SERE school located in Ft. Bragg, NC. Dunivin and Banks had come to know each other because Dunivin had attended SERE training at Ft. Bragg. She had been tasked to handle the repatriation of a female U.S. soldier who had been captured in Iraq, which involved discussions and training with SERE and other psychologists at Ft. Bragg, and had dealt closely with Banks since she had been deployed to Guantanamo Bay as head of the BSCT team in November 2004. As shown by Dunivin's email exchanges during this time and confirmed by her interview with us, communication from Guantanamo Bay was difficult, which might explain why the communication from APA to Banks ran directly through Newman during this time, rather than through Dunivin.

On the morning of Monday, January 10, Newman had a conversation with Banks, who Newman described in an email to Mumford, Breckler, Behnke, Honaker, and Kelly as the "Senior Army Psychologist in Special Operations." |977| Newman told the group that he wanted to discuss his call with them. (All the witnesses said they could not remember the details of the call or the conversation about it.)

The next day, Mumford and Kelly met with Newman to discuss his conversation with Banks, who Mumford described as "his [Newman's] guy in Special Ops . . . who heads the psychology component of the . . . SERE training school." After explaining that Newman thought it would be helpful to include Banks in discussions about APA being helpful to the Army Surgeon General's Office regarding their policy development effort, Mumford explained Newman's summary of Banks's suggestion regarding security clearances for task force members:

Russ also relayed Morgan's suggestion that we include some folks with security clearances on the Task Force so that they'll be more likely to be able to sit down with that operational community and directly convey to them what the Task Force is up to. Some names he mentioned were Joe Matarazzo, Marty Seligman, Scott Schumate [sic]. We told him about Mel Gravitz. Maybe we can chat tomorrow morning. |978|

The "directly convey" language most likely suggests that Banks may have wanted task force members who could confer with military psychologists in the field during the task force to ensure that the task force was not doing something that was inconsistent with their needs or preferences. |979|

Meanwhile, by January 13, Newman had communicated that he wanted to see the draft task force proposal changed to use a different word other than "coercive" a point that Banks would make in later emails, strongly suggesting that Newman was proposing a different word in light of his conversation with Banks. Specifically, on January 13 Behnke emailed the key staff group (Honaker, Newman, Farberman, Gilfoyle, Breckler, Mumford and Kelly) attaching the draft task force proposal and asking for any suggested changes. Behnke noted that Mumford had mentioned that Newman "had an alternative suggestion for the word 'coercive' and asked Newman for a comment on this. |980| In response, Newman told Behnke that he may wish to mention "effectiveness" in the proposal as well. |981| Newman explained to Sidley that this addition reflected the "collateral science practice issue" about whether a psychological intervention was measured by efficacy or effectiveness. |982| The difference between the version brought to the December 2004 Board meeting and the official version submitted at the February 2005 Board meeting was that "coercive techniques" was replaced with the innocuous term "various investigative techniques" in a manner that (as Gilfoyle's prior email foreshadowed) avoided the difficult question regarding what ethical position to take if "coercive techniques were found to be effective." |983| Newman told Sidley that he did not recall the conversations then about removing the word "coercive," but he commented that neither Banks nor his wife Dunivin would have liked it since it suggested from the outset that interrogations per se were problematic. |984|

On February 1, Kelly met with Col. Bruce Crow, then-chief psychology consultant in the Army Surgeon General's office and sent a summary of her meeting to Newman, Behnke, Mumford, and Breckler, along with a follow up email to Crow. |985| At the meeting with Kelly, Crow confirmed that "an internal group within the Army Surgeon General's office is currently reviewing the issue of mental health professional and interrogations and putting together some sort of report." Crow told Kelly that he did not know who was in this internal group and did not know its time frame. Crow reported that "the team has talked extensively with 'a psychologist" involved with the interrogation groups as part of its information-gathering process" and that "a variety of groups across DoD are looking at the issue but isn't sure if or how any are coordinating/collaborating." Crow told Kelly that "input from disciplinary associations (MD, psychology, social work) would be very important to their process." He said he was interested that APA was forming a task force on the issue and offered to serve as an observer. They also discussed setting up a separate meeting with Morgan Banks. |986|

Newman responded to Kelly's email that he was going to meet Banks the week of February 7. |987| The two likely met for dinner on February 9. |988|

Notably, Banks received a copy of the draft task force proposal (formatted the same way the Board ultimately received it, as an agenda item) before the Board did during its February 16 - 17 meetings and emailed written comments on the draft to someone at APA. Although there is uncertainty about how Banks received the document and who he sent it to, our belief based on all the evidence is that Newman provided Banks with the draft and Banks sent back to Newman an annotated copy that included his comments. |989| Newman told Sidley that he and Banks spoke over the telephone and met for dinner during this time period, so it was a reasonable assumption that he may have served as a "conduit" for collecting Banks's comments and sending them to someone like Behnke. |990|

Banks's comments on the task force proposal made points that are consistent with the ultimate direction of the PENS task force. First, he strongly implied that the "do no harm" principle should not be applied broadly by the task force, since (1) it "may impact on a large number of psychologists, for example, those who work for police departments, or for the prison system," and (2) "any psychologist who assists in making soldiers more effective, increases the likelihood of causing someone harm." Second, he implied that it would be very difficult to discuss or draw any conclusion about the ethics of specific interrogation techniques since "[t]he tactics, techniques, and procedures (an Army term) may be classified." Third, he said that the task force "would be a great opportunity for APA to support classified research" on the topic of the "efficacy and effectiveness of various investigative techniques" (a phraseology paralleled in the PENS report in recommending future research). Fourth, he revealed that he had provided APA person who was receiving the comments (apparently Newman) "the chapter [w]e wrote", which covered issues of informed consent in interrogations. |991|

Banks's chapter comment is clearly a reference to the draft document entitled "Providing Psychological Support for Interrogations" ("PPSI") (and which was formatted at the time as two "chapters") that Banks and Dunivin had drafted and which Banks provided to Behnke in advance of the PENS task force meeting. The PPSI was distributed at the task force meeting and eventually became (almost verbatim) the interrogation policy of the Army Medical Command in 2006. The key point in this draft document was that a psychologist's role in interrogations must be analyzed using a four-word formula–"safe, legal, ethical and effective" –with the analysis under each word discussed in some fashion. After Banks provided this formula to Behnke, and Behnke wrote language for task force chair Olivia Moorehead-Slaughter to recommend the formula to the task force (discussed more below), it became the key formula for the PENS task force and report.

Thus, even before the Board had voted to actually form the PENS Task Force, Banks was communicating to APA (apparently through Newman) some of the key points regarding how he and DoD would want to see the task force address these issues. Our investigation found no other instance of someone outside APA–either outside DoD, outside the government, from within the pro-human-rights community, or otherwise–being asked to weigh in on the task force proposal in advance of the Board meeting.

3. Board approval of task force

The APA Board met on February 16 and 17 and voted to approve the creation of a "Task Force to Explore the Ethical Aspects of Psychologists' Involvement and the Use of Psychology in National Security-Related Investigations" and to allocate $12,500 for it. |992| A list of suggested task force member names were distributed during the Board's Executive Session. Behnke suggested that the potential names be distributed in a confidential "Executive Session" "[g]iven the political aspect of choosing" task force members and the "possibility of provoking strong feelings from people who feel slighted or left out." |993|

The names included in the Executive Session handout were the same as those on the January 18 list, now without any asterisked names, plus one additional name–David Shapiro, a Professor of Psychology at New York University. |994| Shapiro was added to the list after he wrote a letter regarding his disappointment at APA's responses to the abuses at Guantanamo Bay , which a Council representative, Trish Crawford, forwarded to the Council listserv on the evening of January 18 as discussed above. |995| Crawford later suggested to Levant that Shapiro would make a good addition to his task force. |996|

Despite this list of names and APA staffs recommendations regarding its top 10 names, the Board did not select the task force members at this meeting but instead decided to issue a broader call for nominations. The Board minutes note that Levant would send a call for nominations to Council. On February 17, communications were sent out to the Council of Representatives, divisions, boards and committees announcing the formation of the task force and that nominations would be accepted. Neither Levant, Behnke, nor other Board members during this time could recall the specific discussions about calling for nominations after the meeting. Divisions, APA committees, state psychological associations, and individuals all submitted nominees in the weeks ahead.

We can speculate on three possible explanations for the shift to a full call for nominations after the Board meeting. One possibility is that Koocher or Levant may have reviewed the list anew and realized that more names were needed during the Executive Session. Another possibility is that other Board members during the meeting raised concerns about having a broader list of nominations before finalizing the task force. A third, perhaps more underhanded, possibility is that Newman's (and later Dunivin's) involvement with the Board meeting led to an open call of names. As discussed, Newman likely received Banks's thoughts on the task force board item ahead of the Board meeting. Further, Newman told Sidley that he was concerned the task force would be staffed with people who did not have the appropriate knowledge of the issues to accurately comment on them. |997| Newman was also in contact with APA staff ahead of the Board meeting and, as a member of the Executive Management Group, participated in the Board meeting discussions about the task force issue. If Newman saw the list of initial task force individuals and was concerned about their competencies in this area, then, it is possible he would have informed Board members–either during their meetings or in private–that a wider call for nominations was needed. He could have then informed Dunivin of his concerns who, one week later, conveyed her desire to have Banks on the task force (discussed more below), which propelled the task force to take a different complexion than what Behnke, Mumford, and Kelly had originally planned.

The evening of February 17, Behnke sent Levant an email confirming the details of what had been discussed at the Board meeting regarding next steps:

    The Board liasons [sic] are Gerry Koocher and Barry Anton. The Task Force will be staffed by the Ethics Office and the Science Directorate. Nominations are being sent to me, and the Ethics Office (Rhea Jacobson) is updating the list daily. The final day for nominations is March 1. We will have a conference call (tentatively scheduled for Tuesday, March 9), at which time you will choose the individuals for the Task Force. Before then we will have provided you a complete list of individual's names and biographical sketches for your review. We will also have drafted a letter that will be sent to the individuals whom you choose, that will provide possible meeting dates and other relevant information (e.g., the person will need to be able to attend and able to vote in order to be on the task force). My guess is that we will have over 200 names for your consideration. |998|

Levant responded solely to Behnke's prediction of how many nominations would come in: "Wow! 200 names ... that is amazing." |999|

D. February 17 - March 18, 2005: Influence of Debra Dunivin; task force finalized

1. Some early communications about task force nominees

Once the call for nominations was sent out on February 17, a variety of nominations and communications came in to APA in various ways. Notable examples include an exchange with Robert Kinscherff–who was a close friend of Behnke's, knew Robert Fein from their work on forensic psychology issues in Boston, and was chair of APA's Committee on Legal Issues ("COLI") and former APA Ethics Committee chair–in which he commented swiftly and positively on three eventual government members of the task force.

Kinscherff was responding to a post on the COLI listserv by APA the afternoon of February 17. There, a psychologist who worked at the U.S. Secret Service's National Threat Assessment Center–and therefore had worked closely with Robert Fein–posted on the listserv that Scott Shumate "would be very well-suited for this." Fein worked with Shumate at CIFA in DoD. The evening of February 17, Kinscherff posted on the listserv in response, stating, "I would agree heartily with the nominations of Scott Shumate, Robert Fein, and Charles Ewing," and added that Michael Gelles would be a good nominee. Later that evening. Behnke emailed Kinscherff a short thank you note using the lingo they often used with each other in emails. |1000| Although the behind-the-scenes communications are not made explicit in this email exchange, and Behnke, Fein, and Kinscherff did not recall anything about this exchange from 10 years ago, it strongly suggests that Behnke, Kinscherff, and Fein had coordinated this exchange in some way to ensure that Shumate, Fein, and Gelles would be nominated with prominent recommenders, especially in light of the way the detailed and sophisticated behind-the-scenes manner we observed Behnke typically operating. Behnke also emailed Fein about two weeks later, noting that "[t]hese appointments are very political." |1001|

Also on February 17, former APA President Ronald Fox ("Fox") emailed Levant to offer his assistance: "If it helps, I am willing to be an informal advisor behind the scenes as long as I do not leave my fingerprints on it, so to speak." |1002| Levant forwarded the email to Behnke, who responded to Levant that "[a]t your suggestion, I did speak with Ron [Fox] about the task [force] several weeks ago. I will certainly keep him 'in the loop,' although without requiring his fingerprints." Levant responded, "Smile... Thanks." |1003| Behnke and Fox did not remember this communication, and neither thought that Fox had had any involvement in the task force, or that the two of them had any additional communications following this apparent conversation referenced in the email. |1004| Levant told Sidley in an interview that Fox's comment may have been the result of his advisory relationship with the CIA at the time, as described earlier in this report. |1005| On the one hand, our investigation found no evidence that Fox was having any dialogue with Behnke or anyone else about the task force, or that he was being used as a conduit by the CIA or others to influence the task force. On the other hand, given the secretive nature of the CIA and its activities, it is not a possibility that can be ruled out.

2. Influence of Debra Dunivin

The evidence shows that the most meaningful and influential communication regarding the composition of the task force came from Debra Dunivin, then chief Army BSCT psychologist at Guantanamo Bay, in several communications starting the day after the February Board meeting and running to the date of the selection committee meeting on March 18.

Dunivin was a member of APA's Council of Representatives at the time, and the Council's February meeting was February 18 - 20, immediately after the two-day Board meeting. Dunivin told Sidley that she returned to Washington from Guantanamo Bay to attend the Council meeting. As recounted in a subsequent email exchange and in Dunivin's interview with Sidley, Dunivin spoke with Levant and Behnke during the Council meeting about the newly-formed task force and communicated strongly to them that it was essential that they include certain military and DoD officials, so that the task force could be properly informed by the psychologists who correctly understood the issues and challenges as a result of their work in the field for the government. Dunivin said she told Levant in particular that it was essential for APA to have a proper outcome from the task force, because ethical guidance for psychologists who supported interrogations at Guantanamo Bay and elsewhere was badly needed, although it needed to be the right kind of guidance. |1006|

Dunivin told Sidley that her view was that APA should indicate that it was ethical for psychologists to participate in interrogation support within certain guidelines. But she commentated that APA should not attempt to define with any specificity what the military should or should not do regarding interrogation techniques, since APA did not have the expertise to understand whether certain techniques would elicit accurate information. Dunivin said she was against harsh and abusive interrogation techniques, and that the Army had done a good job of correcting prior mistakes. Hence by 2005, she and other psychologists were doing a good job, Dunivin claimed, of preventing interrogators from engaging in such techniques. As to what ethical guidelines or boundaries should be placed on psychologists from APA, her view was that the "safe, legal, ethical and effective" formula she had created with Banks was a strong and sufficient approach. Dunivin said that her commander and people in the intelligence and detention community told her that psychological expertise aided their efforts. It was important, therefore, to have professional associations support these psychologists' roles to alleviate the ability of a psychologist losing their license for being in these settings at all, she said. |1007|

Dunivin said that one of the key points she communicated to Levant in this regard was that it was essential to include Morgan Banks on the task force (among others), so that the right kind of knowledge and expertise could be included on the task force. She recalled that she was likely quite insistent with Levant and may have "gotten in [Levant's] face" about the issue. |1008|

Dunivin sent Behnke and Levant an enthusiastic follow up email on February 24, copying Newman and Banks. She said she wanted to "underscore how strongly I feel that you must include Colonel Morgan Banks on this Task Force. He's the person with the absolute most experience in this area." Dunivin also said she agreed with the comment Levant had made to her that "this is likely the most important thing that APA will do this year." Dunivin offered to assist in any way she could. |1009|

On March 2, Dunivin (who was back at Guantanamo Bay) emailed Behnke saying she wanted to talk with him and had tried unsuccessfully to reach him by calling APA. |1010| As they emailed about how to connect by phone, Dunivin said that she "wanted to talk a bit about the composition of the Task Force before it's finalized." Behnke responded on March 15 that "[w]e are getting down to the wire" and suggested a call that evening or the next day. Dunivin responded right away and asked if Behnke was available then, and they appear to have connected by phone that morning and to have discussed her sending in a written suggestion about who should be on the task force. (Both said they do not remember the call.) The afternoon of March 17 she asked if she could send him "my note" the next morning and said it was "almost written." Knowing that the selection committee meeting was the next day, Behnke responded that it would be "ideal" if Dunivin could submit that evening, or otherwise as early as possible the next morning. Later that afternoon, Dunivin attached a letter to an email to Behnke, and wrote in her email, "[h]ope this accomplishes its purpose.. ..REALLY appreciate your help with this." |1011|

The one-full-page, single-spaced letter from Dunivin listed all six of the government officials who were initially selected by the selection committee. |1012| Her letter was (based on the evidence) the only document with nominee names distributed at the selection committee meeting other than the full packet of all the nominees, which included information they or their recommenders had submitted and a nominee's APA membership information if applicable. (Behnke's hard-copy file included six copies of Dunivin's letter, one of which had a small amount of notes from Behnke on it, and Behnke and Koocher recalled the document being passed out at the meeting.) The document, and Dunivin's communications with Behnke, Levant, and Koocher (see below) are, thus, likely the most influential communications on the task force at its selection of task force members that the selection committee received. After an introductory sentence, Dunivin's letter to Behnke began:

    We are agreed that composition of the Task Force is critical to accomplishing its mission. I am concerned that in our efforts to be broad-based within psychology, we will miss some critical areas of expertise in the actual field that is the focus of the TF. . . . I am suggesting that the following people MUST be included in order to ensure that we: 1.) cover the various categories of expertise within the field of psychology related to national security (i.e., interrogation support, profiling, counterintelligence, policy development) and 2.) include some folks who provide a bridging or cross-over function between the various components - those known and respected within APA governance, with experience working in these unique areas of professional practice, familiar with the ethics issues inherent in this work. |1013|

She then listed nine names (including herself) along with descriptions of why they were important and how important they were. The names were:

  • Morgan Banks ("the [U.S. Army Special Operations] Command psychologist with policy oversight for behavioral science consultation team support for all Special Operations Command in support of national security issues. Decades of experience in this area. Absolutely essential to the work of the TF.") [task force member]
  • Thomas Williams ("Essential") [initially listed as the tenth member of the task force in Behnke's notes from the March 18 selection committee, but not ultimately chosen and replaced by Bryce Lefever]
  • Scott Shumate ("Essential") [task force member]
  • Michael Gelles ("Essential") [task force member]
  • Kathleen Civiello ("Need the NSA perspective.")
  • Richard Ault ("Need FBI perspective.")
  • Joseph Matarazzo ("tremendous bridging function. Others who could function in this role include Mel Gravitz and Charlie Speilberger.")
  • Larry James and herself [James was a task force member]

Separately, Dunivin had been communicating with Koocher about Banks, and this communication revealed an eventual concern about the fact that Banks was not an APA member. In an email to Koocher that apparently was sent around the time of the February 18 -20 Council meeting, Dunivin wrote, "I know folks are looking to add military members. The person who knows most about this topic is COL Morgan Banks . . . . Those Special Ops folks have been involved in this work for twenty years. . . . This is something most folks don't appreciate. Can you ensure that Morgan Banks is one of the task force members?" |1014|

In a follow up email to Dunivin on March 15, Koocher noted that Banks was not an APA member, and asked if he was prepared to join APA. |1015| Dunivin responded later that day that Banks was probably not prepared to join APA, but pushed Koocher to support her and military psychologists by including him on the task force:

    I think this matter goes to the very heart of a purpose for establishing the TF - to answer the question if APA is providing sufficient support to psychologists on the front line of this area of practice. The answer has to be 'no.' I, for one, want that to change. Inclusion of such folks begins here. With the TF. And moves on from there. Can you support me on this? |1016|

Koocher responded later that day: "It is exceptionally hard to argue that a person not accountable to APA ethics code should be on a task force discussing ethics in psychology. Sadly, that issue goes to the very [heart] of the matter." |1017|

On the morning of March 18, the day of the selection committee meeting, Dunivin reached out to Behnke for his help on the issue: "Heads up on another concern that looms on the horizon. That is the issue of APA membership." Without mentioning Banks, Dunivin said that she had been corresponding with Koocher on the issue, and while she typically agreed that task forces should only include APA members, "[i]n this instance I believe there are some reasons to consider it differently. More later." |1018| Behnke emailed her that afternoon asking for a phone call, but it is not clear if they connected by phone. |1019| But late that afternoon, Dunivin emailed Koocher to thank him for his conversation (suggesting Dunivin and Koocher had spoken by phone); her email set out more detail about Banks's background in an effort to explain again why Banks needed to be on the task force, in her view. |1020|

Subsequent emails show that Koocher changed his mind and agreed that Banks should be on the task force. He told Sidley that the letter from Dunivin that was passed out at the meeting substantially influenced him. |1021| Specifically, Koocher told Sidley that he was eventually convinced that Banks's intimate knowledge of SERE training and other interrogation issues outweighed his demand that Banks be an APA member. |1022| The day after the selection committee meeting, Behnke emailed Levant, Koocher, Anton, and Kelly and explained that he had spoken with Banks, asked him to be on the task force, and had discussed the issue of APA membership. Behnke's email did not indicate that Banks would be willing to become an APA member but said that Banks had indicated that he "'certainly' adheres to the APA Ethics Code and will continue to do so." Koocher responded that Behnke should tell Banks that "he was the unanimous first choice of the selection committee . . . that we really want him on board, [and] . . . that the president-elect [Koocher] has offered to pay his dues and that he is welcome to resign from APA after serving on the committee if we have not won back his confidence as an association friendly to our members in the armed services." |1023| Banks did not rejoin APA until 2009.

3. Final selection of task force members

On March 18, Behnke, Koocher, Levant, and Anton met to finalize the task force names. |1024| A total of 111 nominees were compiled for review at the meeting. |1025| Of these 111 names, about 70% (77 nominees) had little or no connection to the military/government (either in active duty or as a consultant), while the remaining 30% (34 nominees) did. |1026| However, 60% of the 10 task force selections were military/government-affiliated members and 40% were civilians with no connection to the military/government, as listed below:

DoD members:

  • Morgan Banks: Command Psychologist and Chief of the Psychological Applications Directorate of the U.S. Army Special Operations Command ("USASOC")
  • Robert Fein: Forensic psychologist and consultant to the DoD Counterintelligence Field Activity ("CIFA")
  • Michael Gelles: Chief Psychologist for Naval Criminal Investigative Service ("NCIS")
  • Larry James: Chief of Department of Psychology at Tripler Army Medical Center
  • Bryce Lefever: Product Line Leader at the Naval Medical Center; was Command Psychologist of the Naval Special Warfare Development Group during September 11 and advised on missions in Afghanistan
  • Scott Shumate: Director of Behavioral Science at CIFA

Non-DoD members:

  • Olivia Moorehead-Slaughter (chair): Senior Faculty Consultant for the Center for Multicultural Training Program; Vice-Chair of APA Ethics Committee
  • Jean Maria Arrigo: Independent social psychologist; oral historian work focus on intelligence and military community
  • Nina Thomas: Clinical psychologist and faculty member at New York University; research in ethnic conflict, terrorism, and genocide
  • Michael Wessells: Professor of Psychology at Randolph-Macon College and Columbia University; research and experience in war zones and child protection |1027|

Behnke's "PENS" hard-copy file contained two sets of handwritten notes on task force selections, one set that likely arose before and one set that appears to come, at least in part, from the March 18 meeting. |1028| The sets of notes appear to show listings of individuals who may fit into certain categories for the task force. For example, the earlier set of notes lists the following groupings: Ethics, Operations, Research/Science, International, and Peace. |1029| The latter set of notes lists the following groupings: Social Psychologists, Military, Division 48, JD/Forensic, Trauma/Effects, and International. |1030|

The earlier set of notes first lists five individuals from the military and DoD (James, Gelles, Schumate [sic], Banks, and Williams) with a bracket around them and the words "19/operations", a reference to Division 19 (military psychology) and the fact that these were military or Defense Department operational psychologists. It then lists a name from "Science" (Matarazzo), one from "international" (Wessells), and two unnamed people from "48" (Division 48, Peace Psychology), with one spot open.

The latter set of notes, which Behnke and Koocher thought came from the March 18 meeting, includes a numbering of the task force members from one through ten, and inserts a dividing line between the top half of the list, who are DoD members, and the bottom half of the list. Numbers 6 through 9 are non-DoD members. |1031| However, number 10 is also a DoD member, Bryce Lefever. His name appears next to Thomas Williams ("Williams"), whose name is crossed out. It is probable, then, that the first nine names on the list are intentionally split into two groups (DoD vs. non-DoD), with the order within those two groups reflecting the selection committee's order of preference. But the inclusion of a military member (Williams, then Lefever) as the tenth members, suggests that after deciding on nine members–and faced with a decision about whether to choose a fifth non-DoD member or a sixth DoD member–the selection committee intentionally chose the latter approach.

The 10 task force members are listed as follows in Behnke's latter set of handwritten notes:

  • Morgan Banks
  • Robert Fein
  • Larry James
  • Michael Gelles
  • Scott Shumate
  • Michael Wessells
  • Jean Maria Arrigo
  • Nina Thomas
  • Olivia Moorehead-Slaughter
  • Bryce Lefever |1032|

It is unclear from any of the notes, emails, and interviews why Tom Williams's name was crossed out and replaced by Lefever. Williams was a top-ten choice by Behnke and the Science Directorate in mid-January 2005, Dunivin endorsed him, and he was Division 19's top choice. |1033| There is also no indication from the emails Sidley collected that Williams was ever offered a position on the task force and declined. Williams confirmed with Sidley that no one had reached out to him about the PENS Task Force after he had submitted his nomination. |1034| It is possible, however, that Behnke may have wanted an active duty Navy representative on the task force. Morgan Sammons, Specialty Leader for Navy Clinical Psychology at the time, originally nominated Lefever. He recalled that Behnke and him had a conversation, likely after the Feburary 2005 Council meeting, where Behnke inquired whether Sammons had any nominees for the task force in mind. Sammons told him that he would nominate Lefever. |1035| Sammons later spoke with Lefever and, according to Lefever, told him that, if Lefever was interested, "we'll get you on there." |1036| Lefever said he was interested, offered his nomination (with Sammons's blessing), and placed on the task force.

The latter set of Behnke's notes also includes comments about Dunivin, possibly in reference to Behnke and Dunivin's earlier conversations. The notes also state, "Balance of law, Duty, + Ethics Code." |1037| This language is pulled directly from a subheading of a draft chapter that Banks and Dunivin were working on at the time, "Providing Psychological Support for Interrogations" ("PPSI"), |1038| which (set out above) became the basis of future BSCT policy documents at the Department of Defense and from which the PENS report uses language like "safe, legal, ethical, and effective." |1039| The relevance of the PPSI is discussed further later in this section as well.

Behnke began scheduling telephone calls with the selected task force members starting later on Friday, March 18 and through the coming days. His email drafts included a telephone script he used with each task force member during their conversation. |1040| Behnke's script to members noted that names would be kept confidential for the "time being," that task force "names will be public," that task force members "must be able to" vote, and that members should raise any issues that might embarrass APA (the "ugly question" is what this refers to in Behnke's notes). |1041|

In interviews with Sidley, neither Levant, Koocher, Anton, or Behnke recalled what specific conversations occurred during the March 18 meeting that led them to ultimately choose these 10 names over other nominees, or why the tenth member chosen was a DoD member rather than a non-DoD member, even though this decision led to the much-criticized 6-4 split of the task force (6-3 if you consider that Moorehead-Slaughter was a non-voting chair of the group). Levant commented that he had a very "hands-off approach to PENS," and that he likely deferred to Behnke, Koocher, and Anton. |1042| Each offered general insights on those selected but did not recall the specific decision or conversations about each member. In their interviews (except as noted below), they offered the following statements about why each member was selected. Although in light of their caveats that they could remember little about this meeting, we do not put much weight on these statements:

  • Morgan Banks ("Banks")
    • As noted above, it appeared that Banks was the top selection of the group.
    • Koocher raised issues about his lack of APA membership, discussed further below.
    • Anton recalled that it was important that Banks participate because "he was the head of the whole thing" and knew about the interrogation history at the time. |1043|
  • Robert Fein ("Fein")
    • Koocher described Fein as a long-time friend who had consulted with the FBI and Secret Service. He explained that Fein was selected because "he had expertise in threat assessment and 'knew the scientific data.' " |1044|
    • Behnke noted in an email response to Fein's task force nomination that "there are no more than a handful of people in the country with your experience and I will be very happy to speak with Ron Levant personally on your behalf." |1045|
  • Michael Gelles ("Gelles")
    • Koocher explained that the selection group specifically selected Michael Gelles because he was an outspoken opponent to the Bush administration procedures. |1046|
  • Larry James ("James")
    • Koocher stated that James was selected because he had been sent to Abu Ghraib, and Koocher "figured that if there was anybody who would know about abuses it would be Gelles and James." |1047|
  • Bryce Lefever ("Lefever")
    • Koocher believed Lefever, along with Shumate, were selected because they were "most likely to know the naughty stuff" that was going on, even though they had not publically spoken out. |1048|
  • Scott Shumate ("Shumate")
    • ee Koocher's note on Shumate above.
  • Olivia Moorehead-Slaughter ("Moorehead-Slaughter")
    • Anton recalled that the March 18 meeting discussed appointing a task force chair who was well-respected and neutral. He had a lot of respect for Moorehead-Slaughter. She was not the only person discussed as chair (as mentioned earlier, Behnke early on suggested Robert Kinscherff as a possible task force chair) but he recalled that her diversity was important to the selection group. |1049|
  • Jean Maria Arrigo ("Arrigo")
    • Koocher commented that he thought Arrigo's name sounded like she might be Latina or Asian and that he wanted to achieve ethnic diversity in the task force. |1050|
    • Behnke's latter set of notes confirm that the group thought Arrigo was Latina. For one, there is a note next to Arrigo's names that says "Latina." And there is another note that states "3 women" and "3 minorities;" James and Moorehead-Slaughter are African-American, so Arrigo was the third member they thought who was ethnically diverse. |1051|
  • Nina Thomas ("Thomas")
    • Koocher believed that Thomas would be "sophisticated" about these issues because she was a former television reporter. |1052| Thomas also served on the Finance Committee with Koocher in 2004. |1053|
    • Behnke believed that Levant thought "very highly" of Thomas. |1054|
  • Michael Wessells ("Wessells")
    • Behnke remarked that Merry Bullock advocated his being included in the task force early on and everyone held him in high regard throughout the selection process. |1055|

4. Overall observations

Several dynamics are apparent in the development of task force nominees from January through March:

  • APA staff considered the civilian/military split of task force members from the start of gathering task force nominees. Although the ultimate PENS Task Force was intentionally weighted in favor of the military and Defense Department (a critical factor in its outcome), the initial staff-recommended task force members were more equally divided.
  • However, things had changed by the February 2005 Board meeting. Prior to the Board meeting, APA (apparently through Russ Newman) confidentially consulted with Banks about the language of the actual Board agenda item defining the task force proposal before the APA Board voted on it, and Banks provided written comments. At the Board meeting, at which Levant, Koocher, and Newman participated in the discussion on this item, the Board authorized the creation of the Task Force but decided not to accept the staff recommendations and instead to solicit nominations from APA divisions and members.

    Almost immediately thereafter, Dunivin intervened in the process, insisting to Levant and Behnke that Banks must be included in the task force, and that the composition of the task force was "critical to accomplishing its mission." Dunivin then delivered a strongly-worded letter to Behnke the day before the March 2005 meeting of the task force selection committee (Levant, Koocher, Anton, and Behnke), in which she identified all but one of the six DoD members initially chosen for the task force. Despite the fact that the vast majority of nominations APA received for the task force were people who had no affiliation with the military or government, the ultimate breakdown was 6-3 in favor of DoD psychologists and one non-voting non-DoD chair. Some APA officials and staff involved in the selection process claim that the ultimate breakdown between military and non-military members ignores the diversity within the DoD members of the task force. But there is no documented discussion in the first part of 2005 about the diversity of the DoD members. On the contrary, Behnke's handwritten notes indicate he grouped all of the DoD members together in his categorization of potential task force members.

  • These importantly-timed and confidential consultations with Banks and Dunivin appear to have been unique–we did not find evidence of APA having similar consultations with other individuals or constituencies. And they were highly influential.
  • While some APA officials and staff involved in the selection process claim that the 64 majority did not matter because the eventual report was a "consensus document," the discussions in the first part of 2005 indicate an awareness and importance about members who could vote. The consensus argument made today appears to be a post-hoc response to the critique about the composition of the task force and, as seen below, was not an argument raised at the time when this criticism first arose. In short, it would have been clear to everyone involved in early 2005 that selecting six voting, DoD members would be a dominant voting bloc within the task force, and would send a very strong positive message to DoD about APA's support.

E. Task force Members Announced and Concerns Arise: April 2005

By April 8, 2005, all 10 task force members had formally accepted a position to serve on the Presidential Task Force on Ethics and National Security ("PENS") task force. |1056| On April 19, Behnke emailed all task force members to inform them that APA would publicize their names to the Council and that Council members could share that information as they wished. Behnke also noted that members would receive a packet of background reading materials and that a PENS Task Force listserv was forthcoming. |1057|

Each task force member received background materials that totaled nearly 500 pages. |1058| The readings included ethical codes for other professional organizations, relevant United Nations and World Medical Association declarations, court cases, academic articles, and news reports, all of which appeared to comprehensively cover the relevant issues for the task force. Several of the materials described specific interrogation techniques that were used at the time and the controversy surrounding them, for example: (1) Bloche and Mark's articles that mentioned sensory and sleep deprivation and stress positions; |1059| (2) Washington Times and Boston Globe articles that described the conflict between NCIS and the DoD over harsh interrogation techniques (the Washington Times article also alluded to waterboarding) and the DoD's revised categories of approved interrogation techniques; |1060| (3) a Lancet article that described the abuses at Abu Ghraib with an overview of the harsh tactics used against prisoners; |1061| (4) a transcript of an interview with Neil Lewis in which he described the FBI's concerns with the abusive methods being used at Guantanamo Bay; |1062| and (5) the Istanbul Protocol, which outlined specific torture techniques more broadly and how one could identify the signs of each. |1063|

APA publicized the task force member names within APA in at least two ways. Council was given a list of the PENS Task Force members along with their biographies over email on April 26, 2005, and APA's Science Policy Insider News, an electronic publication of the Science Directorate, released the names of the task force members in its May 20, 2005 issue. |1064| Several APA Divisions, either through their Council representatives or representatives from other Divisions, received the names of the task force members. Division 48 (Peace Psychology) posted the names and biographies of the task force members on its website on May 5, 2005. |1065| Linda Woolf, then-President of Division 48, informed Sidley that no one at APA ever asked that the Division remove this information. |1066| However, when the PENS report was released, no names of task force members were listed, apparently due to sensitivities from some of the members. |1067|

By April 27, 2005, the day after the Council received the task force member names, APA had already received two written expressions of concern over the number of DoD members on the task force. First, on the Committee for the Advancement of Professional Practice listserv, David Hess stated that the PENS task force members were an "interesting array of individuals" but "wondered about conflicts in interest. Some of these individuals appear to be in security positions within government." |1068| Behnke forwarded the message to Levant and noted that he would like to "nip" the conflict of interest point "in the bud." Behnke explained to Levant the importance of having a task force with "first-hand knowledge of what psychologists are actually doing; the Task Force could not fulfill its charge without a solid grasp of what roles psychologists take in national security-related activities." |1069|

Separately, Division 32 member Marsha Hammond submitted an inquiry via the "Ask the President" email address raising the same point:

    It's an interesting bunch of people. All appear well qualified. However, this caveat would be in order, I believe: Out of the TEN members of the committee, six are employed / associated with, per their bios, by the Armed Services. While this could be argued to be appropriate in terms of information gathering - and indeed essential, their vested interest in the outcome cannot be discarded. Moreover, they outnumber the others. It seems to me that unless the REAL agenda is to white wash the behavior of mental health specialists in the Armed Services re: torture and associated practices, APA would have chosen 4 or 5 Armed Services-related people. I'd like to think otherwise, but frankly that would be to stupidly dismiss the arm-twisting tactics of Bush's administration and what people are 'encouraged' to do in terms of what they say. |1070|

Behnke forwarded Hammond's email to Farberman, Newman, Gilfoyle, and Childress-Beatty, explaining that this was the second message that raised a conflict of interest issue regarding the composition of the PENS Task Force, and he suggested a draft response. |1071| Behnke ultimately sent Hammond a reply on May 5, 2005 that underscored the importance of having DoD members and the lack of an investigatory role for the task force. It read in part:

    [I]t is very important for this task force to include individuals who know what role psychologists are asked to assume in national security-related activities. Such information is absolutely essential for the Task Force to do[their] work . . . much in the same way a group revising the Standards for Educational and Psychologist Testing would need Division 5 and school psychologists as important contributors.

    You voice a concern about possible conflicts of interest. I would like to clarify that the Task Force does not have an investigatory or adjudicatory function or role. . . . Please note that according to APA Bylaws, the APA Ethics Committee is charged with conducting investigations and adjudicating ethics complaints. |1072|

Hess's and Hammond's notes were the first of many complaints lodged against APA about the composition of the PENS task force in the days, months, and years ahead.


II. PENS LISTSERV AND RELATED DISCUSSIONS

The PENS listserv emails spanned from April 2005 to June 2006. |1073| The description of messages and notes below highlight noteworthy correspondence leading up to the PENS Task Force meetings in late June 2005. The full set of listserv emails are appended to this report.

A. Listserv begins: Gelles's Opening Thoughts, Behnke's Handling of Moorehead-Slaughter, Tensions between Gelles and Shumate

Moorehead-Slaughter formally accepted her position as the PENS task force chair on April 5, 2005. |1074| She had been discussed as the possible PENS Task Force chair as early as January 2005 when Kelly, Mumford, and Behnke compiled their early lists of task force candidates. |1075| In her interview with Sidley, Moorehead-Slaughter surmised that, despite her lack of national security experience, she was appointed as chair because of her ethics background (she was Vice-Chair and incoming-Chair of the Ethics Committee during that time) and her facilitation skills. |1076| Behnke commented that her and Moorehead-Slaughter had many of the same views on the task force and would often discuss them over the telephone or email as the PENS Task Force listserv and meetings proceeded. |1077|

Behnke sent out the first email on the listserv on April 22, 2005, informing the group that the listserv was "hidden" in order to provide an "extra layer of security" for task force matters. |1078|

Gelles was the first task force member who offered substantive thoughts on the listserv. An email he sent to Behnke was forwarded to the entire group on April 23, in which Gelles commented on the role of psychologists in interrogation settings in upcoming DoD policy revisions. |1079| Gelles's position here, which remained consistent through the PENS process, was that psychologists should never conduct interrogations and should, instead, consult with the interrogators only. He expanded on his thoughts on May 5, at the prompting of Moorehead-Slaughter, offering a seven-point overview of his approach. |1080| Gelles repeatedly noted the need for psychologists to "stay in your lane" and not take on roles they were not trained to do. Gelles also called for the need to separate operational consultants from health care providers and noted that the government or agency was the client, not the detainee. |1081| Much of Gelles's views were educated by his experience in law enforcement; as he told Sidley, his approach during his time at Guantanamo Bay was trying to make criminal cases that his team could bring to a United States court. |1082|

Several points of interest emanate from Gelles's opening remarks. First, Gelles and others' comments on the listserv, save for Arrigo, do not broadly question the utility of psychologists in interrogation settings. Instead, members discussed how best to use psychologists and who the "client" was in interrogation settings. Those who opined on the client question all stated that the government was the client. |1083| There was more differentiation with DoD members on how best to use psychologists–Gelles took an absolutist position, believing psychologists should not be the "strategic decision makers" in an interrogation, |1084| while others like Banks and James thought that psychologists could help on the strategic side depending on the circumstances. |1085|

Second, Moorehead-Slaughter's message to Gelles inquiring for additional thoughts was prompted by an email from Behnke to Moorehead-Slaughter. In it, Behnke suggested to probe Gelles's thoughts further to spur discussion across the task force participants. |1086| But this message was only the first several other missives and suggestions Behnke sent Moorehead-Slaughter during PENS. In fact, Behnke drafted or outlined nearly every correspondence Moorehead-Slaughter sent over the PENS listserv, offered an outline of comments and analysis ahead of the PENS meetings, and provided her talking points after the report received criticism from inside and outside of the task force. He also drafted or reviewed nearly every message Moorehead-Slaughter sent to Koocher, Anton, or Levant about the task force outside of the listserv. Moorehead-Slaughter, in turn would dutifully send Behnke's talking points or statements with little, if any, of her own edits. On May 5, after Behnke had sent Moorehead-Slaughter a draft note on Gelles's latest remarks, she thanked Behnke and stated that "[y]our thinking and mine are along similar lines. Having your feedback/response is helpful." |1087|

Both Moorehead-Slaughter and Behnke confirmed that Behnke drafted and provided guidance to Moorehead-Slaughter during the PENS process to facilitate discussion. |1088| Moorehead-Slaughter added that it was Behnke's modus operandi in other task forces to write draft statements for others to post on listservs. |1089| Several PENS interviewees indicated that Moorehead-Slaughter acted more as a facilitator and offered little substantive thoughts on the discussions. Others opined that she appeared outside of her expertise area. Behnke's staunch handling of Moorehead-Slaughter's communications, coupled with Moorehead-Slaughter's lack of experience in national security issues, signal that Moorehead-Slaughter was used primarily as Behnke's agent during the PENS process.

A third issue Gelles's comments raised was the tensions he had with task force member Scott Shumate. After his initial email in April, Kelly separately inquired to Shumate about whether Gelles was supposed to have disclosed details of a new DoD policy already. Shumate said he should not have and that Gelles "really gets [his] goat" and that "his ego is out of bounds." Notably, he alluded to an APA ethics complaint against Gelles before September 11 and implied that APA closed the case after September 11 so as not to be perceived as taking an anti-government position. |1090| He noted that Melvin Gravitz conveyed this message to APA. More about the Gelles ethics complaint is discussed in later in this report. Shumate later forwarded another exchange between Gelles and Shumate from April 28 regarding a conversation the two had about CIFA and NCIS working together, which indicated the two had a close relationship together before but had suspicions of one another now. |1091| Gelles told Sidley that Shumate was one of his best friends and of the finest operational psychologists during this time, but the two had grown apart after Shumate shifted from the CIA to CIFA. |1092| The exchanges illustrate that not all the DoD task members were as friendly with one another despite their similar experiences.

B. Banks and Others Weigh-In, Arrigo Raises Issues, Koocher-Arrigo Exchanges: May 2005

Behnke encouraged Moorehead-Slaughter to bring Banks into the discussion of organizational clients and ethical obligations on May 10. |1093| Moorehead-Slaughter did so on May 11 on the listserv, and Banks offered his thoughts.

In his first message to the group, Banks attached Army Regulation 190-8, which provides all DoD personnel guidance on the treatment of "Enemy Prisoners of War, Retained Personnel, Civilian Internees, and Other Detainees." |1094| Banks declared that the group should focus on what types of actions may be legal but unethical as part of their discussions; this was not ultimately fleshed out in the final report. Banks also quoted from a draft BSCT policy he was crafting during this time; he brought copies of this draft policy to the PENS meetings. |1095| As discussed, the draft policy was called "Providing Psychological Support for Interrogations" ("PPSI"). Banks confirmed with Sidley that he was still forming his policy positions at the time and was articulating them over the listserv. |1096| He explained that him and Dunivin first began crafting the PPSI while they were both in Guantanamo Bay in the fall of 2004 and that the draft was still new during the PENS process. |1097| Banks later distributed copies of these draft instructions during the PENS meetings and asked that it remain confidential so that the document was not construed as official Army policy at the time. |1098| Banks asserted that he spearheaded the PPSI and no one from DoD or the U.S. government pushed him to draft the document. |1099| While this may be true, the draft PPSI and Banks's views on these issues held enormous influence on subsequent policy pronouncements from the Army Surgeon General, as discussed later in this section.

Arrigo also sent a message on May 11 questioning, among other issues, the effectiveness of ethical safeguards in national security settings. As Arrigo wrote:

    Societal response is a natural check on the behavior of professionals . . . . In many domains of national security, psychologists cannot both be effective employees AND be subject to independent ethics review. Yet without independent ethics review, there is no way to distinguish between (a) justifiable moral trade-offs for national security gains and (b) deluded, incompetent, or self-interested behavior. . . I think a foundational question for PENS is whether outside accountability CAN be designed into the national security positions of psychologists whose effectiveness depends on secrecy. |1100|

Arrigo most vocally questioned the group's mission and scope before, during, and after the PENS meetings. She inquired whether psychologists had proper ethical safeguards in national security settings, sought additional information about the composition of BSCT teams, and protested the level of secrecy during and after the PENS meetings.

Arrigo also clashed with several members and observers of the task force, most notably Koocher. At nearly every turn on the listserv and during the PENS meetings, Koocher retorted many of Arrigo's claims, requests, and observations. To Arrigo's May 11 message, Koocher responded in part that he rejected the "foundational premise" of Arrigo's assertions and that thought Arrigo's "societal response" was an "illusory concept of little pragmatic utility in the long run." |1101| Koocher's responses were starker given that he was a Board liaison and not an official task force member. There was no evidence we found, however, that suggested Koocher coordinated his challenges to Arrigo with Behnke or anyone else associated with the task force, save for a response he made about the casebook project (discussed below). Otherwise, it appears Koocher acted on his own accord. Koocher told Sidley that he acted as an enforcer against many of Arrigo's thoughts, which aimed to broaden the scope of the task force's mission. To Koocher, it was important to narrow the actions of the task force since a report was needed at the end of the weekend of the meetings, especially to combat press reports critical of psychologists in interrogation settings. |1102|

The Geneva Conventions and conflicts between law and ethics were discussed on the listserv as well. James first emailed the group on May 12 and recounted some of his experiences at reducing abuses at Abu Ghraib; he underscored the need to abide by the Geneva Conventions. |1103| Thomas first emailed the group on May 13 and inquired about the guidance the group could provide in cases where the law and ethics were "incongruent" |1104| Koocher built off Thomas's point by explicitly mentioning the concern with the OLC memoranda and its definitions of torture, likely a reference to the leaked OLC memos in 2004. |1105| Gelles also suggested on May 18 that the Geneva Conventions may be a "good place to start." |1106| Despite these listserv discussions, the PENS report does not fully embrace international legal standards. The report instead encourages psychologists to review the Geneva Conventions and the U.N. Convention Against Torture in order to perform ethically and to analyze when there might be a conflict between the law and ethics, |1107| but does not specifically define when those conflicts arise (by not defining "torture" in the document, for example, Koocher's concern here is never fully addressed). More on the views surrounding international law are discussed below in a summary of the first day of the PENS meetings.

Fein emailed the group for the first time on May 18 and posted a hypothetical scenario involving a psychologist who is aware of unethical activities of another psychologist. |1108| Fein was not an active participant on the listserv and offered few comments during the PENS meetings. Arrigo noted to Sidley that Fein contacted Arrigo in January 2005 about providing relevant articles for a class he was teaching at Harvard at the time and suggested she could also receive a paid consulting job if she was interested in contributing to his work on interrogation research in Educing Information. |1109| Arrigo speculated that Fein was trying to "screen" her into being placed on the PENS Task Force. People may have thought that Arrigo was an "easy mark," she continued to tell Sidley. |1110| Fein told Sidley that he and Arrigo did talk in January 2005 and that Arrigo's recollection of its substance was seemed accurate. |1111| But Fein stated that he was not thinking of the PENS Task Force and that no one directed him to reach out to Arrigo at that time. Based on other emails as well, it appears that Fein was not aware of the PENS Task Force until after this conversation with Arrigo. As noted earlier, Robert Kinscherff raised Fein's name to Behnke in mid-February, and Fein emailed Behnke on March 1, 2005 asking whether it was too late to submit his name for consideration on the task force. Fein noted that Shumate had encouraged him to apply for a position. |1112|

After Arrigo called Moorehead-Slaughter and others to clarify the scope of the June PENS meetings, Behnke and Moorehead-Slaughter exchanged emails separately on May 18 about the need to determine what could reasonably be done during the PENS meetings. They planned to discuss these issues further at a previously-scheduled meeting later in June. |1113|

On May 19, Banks used the term "safe, legal, ethical, and effective" to describe his framework for thinking about psychologists' proper roles in interrogation settings. |1114| This phraseology appeared in Banks's PPSI and, as mentioned, ultimately undergirded the PENS report and subsequent DoD policy on this issue. Banks added that the group "should focus on the ethical left and right limits of particular types of psychology support, e.g., interrogation support." |1115|

Arrigo offered a draft set of questions for the task force meetings on May 22. |1116| She included the following questions: "Should APA declare the contribution of psychologists to coercive interrogation incompatible with the ethical obligations of the profession?" and "Should APA exclude from membership psychologists who intentionally or negligently contribute to coercive interrogation?" |1117| Koocher refuted Arrigo's call to exclude members: "This question seems naive since APA will likely never know about such conduct, nor be in a position to investigate it." |1118| Koocher offered additional thoughts to Arrigo's first question, however, about the types of (questions to ask about coercive interrogations, none of which were included in the PENS report. |1119| Koocher later told Sidley that the task force's mission was narrow, |1120| but his earlier listserv comments suggested that he was asking broader questions that were unanswered by the time of the PENS meetings.

Arrigo and Banks exchanged messages related to questions Arrigo had about what current roles psychologists played in interrogation settings. At one point, Arrigo directly posed to Banks whether there was a "natural crossover from SERE training to coercive interrogation," |1121| which was precisely what Mitchell and Jessen executed during their interrogation work with the CIA. Banks did not address whether this "crossover" had occurred and instead underscored that purpose of SERE training and the purpose of interrogations were "diamet[r]ically opposed" to one another. |1122|

C. Observers Considered, Newman's Conflict of Interest, Choosing "Safe, Legal, Ethical, and Effective": June 2005

1. Task force observers

Task force observers were discussed on the listserv in June 2005, though the topic had been discussed internally at APA as early as April 2005. Mumford had raised the possibility in early April of adding Brandon as an observer. |1123| Along with her science background, Mumford noted that "politically it would be helpful/smart to have a White House observer." |1124| In late April, APA Senior Policy Advisor Ellen Garrison also mentioned that Jeff McIntyre, then-Senior Legislative and Federal Affairs Officer at APA, was interested in sitting-in on the meetings. |1125| McIntyre was ultimately accepted as an observer but, as he told Sidley, chose not to participate after he was told he could not speak, could not take any documents with him, and would be bound by certain rules of confidentiality. |1126|

Observers were discussed earnestly in early June 2005. Behnke sent an email on June 1 to Koocher, Anton, and Moorehead-Slaughter informing them that staff had a question about whether observers were permitted. |1127| Behnke stated that some APA staff were interested in attending and that the group should consider inviting "non-staff" like Brandon and representatives from the FBI. |1128| Levant agreed with Behnke. |1129| Anton agreed to include APA observers who had a "direct interest" in the task force, and to invite "selected observers" from outside APA. |1130| Koocher also agreed and offered the most full-throated support for outside observers from the FBI or CIA. |1131|

After receiving their blessings, Behnke emailed Kelly, Breckler, and Mumford about how they could proceed. Behnke outlined five different options; the group ultimately chose a combination of the first and fifth options:

    1) Ask the Task Force members themselves whom they would suggest including as observers;

    2) Identify particular groups and invite them to send observers;

    3) Send a letter around to all the Divisions and State Psych. Associations, inviting those groups to send observers;

    4) Invite anyone who was nominated to attend as an observer;

    5) Keep to our original plan, and identify particular people whom we would like to invite.

    We should be mindful that if we really open this up we may get LOTS of people. . . Thoughts? |1132|

On June 3, 2005, Moorehead-Slaughter requested whether the PENS Task Force had any uggestions on observers. |1133| A mere 20 minutes after her message, Anton suggested Newman as an observer. Banks affirmed Anton's suggestion 10 minutes later and Moorehead-Slaughter confirmed Newman's selection ninety minutes thereafter. |1134| Newman's marriage to Dunivin was not disclosed on the listserv. While many of the DoD members knew of Newman's relationship with Dunivin, none of the non-DoD members told Sidley that they did. Newman's role on the task force proved consequential and is discussed later in this section.

Later on June 3, James separately raised issues that an open meeting would have on the safety and confidentiality of the PENS meetings. |1135| Though he was fine with Newman attending, James requested that he "know who will attend, why, which group he/she will represent before anyone else attends." Behnke drafted Moorehead-Slaughter's response to James, which stated that the "parties in the room will be 'known entities,' who have been approved to be there." |1136| Both of these episodes are discussed in greater detail in other parts of this report.

The only other outside observer discussed and approved on the PENS listserv was Melvin Gravitz , long-time APA member and CIA contractor/psychologist (and sometimes called the "father of operational psychology"). Gelles suggested Gravitz on June 6. |1137| Gelles told Sidley that Gravitz was his closest mentor; he thought he volunteered Gravitz without suggestions from others involved with or on the task force. |1138| Behnke did, however, send Moorehead-Slaughter a note after Gelles recommended Gravitz, and stated that he was an "excellent choice," and that Moorehead-Slaughter should ask Gelles to expound upon Gravitz's background. |1139| Gravitz was approved as an observer shortly thereafter. Our investigation uncovered that Gravitz had played an important role inside the CIA in clearing the way for CIA contract psychologist Jim Mitchell to continue participating in CIA interrogations in 2003 after some within the CIA protested that his work was unethical, and had also attempted to influence an APA 2002 disciplinary proceeding against Michael Gelles. |1140|

Both Gravitz (who was there for days two and three of the meeting) and Newman spoke during the meeting in ways that supported the military/DoD psychologists. And, as discussed more below, Newman spoke forcefully about the importance of achieving APA's PR goals in a manner that was inconsistent with the efforts by some of the non-DoD psychologists to push for stricter, more specific ethical guidelines.

Other APA employees were present at the meeting, but were not formally approved on the listserv–Anton, Breckler, Brandon, Farberman, |1141| Kelly, Koocher, Mumford, and APA Office Manager Rhea Jacobson.

2. Newman's conflict of interest

Newman had an obvious conflict of interest, since his wife was highly interested in the outcome of this policy decision by APA, and was one of the DoD psychologists who would be most affected, positively or negatively, by the ethical position about which APA was supposed to be deliberating.

Newman told Sidley that he believed Anton may have conversed with him before his listserv nomination about serving on the task force due to Newman's interest in practice issues that would arise during the meetings. |1142| Anton told Sidley that he thought someone encouraged him to nominate Newman for the task force but could not recall who it was; he speculated that Moorehead-Slaughter or Behnke may have spoken with him. |1143| Anton reflected that he could see how Dunivin might have suggested to Banks that he second Anton's suggestion since the nomination was finalized so quickly. These comments suggest that there was some coordinated effort to have Newman on as a task force observer.

When asked about whether there was a conflict of interest in his observer appointment, Newman stated that there was not and that "everyone" at APA knew of his relationship with Dunivin. In addition, Newman stated that his role as an observer was a "specific" one that did not allow him to vote on any issues, offer comments to the draft reports, or participate in additional conversations outside of the meetings. Newman expounded that it was important that the interest he had was represented during the task force. He worried that APA would have included people with little knowledge of the situation or that people would respond emotionally to the issues without carefully considering psychologists' important roles in detainee interrogation settings. |1144|

Anderson admitted that he did not fully think through the implications of Newman's presence as an observer at the time but that, in retrospect, Newman's conflict should have been explicitly addressed. He stated that no one from APA staff came to him with the conflict issue at the time, but he thought that Behnke (as Ethics Director), Gilfoyle (as General Counsel), or Newman himself would have been best positioned to raise the conflict issue explicitly with Anderson. |1145| Honaker said that Newman's involvement was a "clear conflict" in retrospect, but that he had assumed that all members of the task force were fully informed about the relationship and Dunivin's position at Guantanamo Bay at the time. But he stated that the issue was not as problematic for him then since Newman did not have a decision-making role on the actual task force. He agreed that he did not take any steps to raise a question or discuss the issue with Anderson, the Board, Behnke, or Gilfoyle. |1146|

Behnke did not recall how Newman was originally discussed as an observer, but admitted that, in hindsight, he should have formally disclosed to the task force Newman's relationship with Dunivin. |1147| Farberman told Sidley that she was "shocked" to learn of Newman's presence at the PENS meetings because of a clear conflict of interest, but she did not recall raising the issue with anyone at the time. |1148| Gilfoyle, who was not involved in observer selection, also was surprised to learn of Newman's involvement during the meetings and suggested that disclosing Newman's marriage to Dunivin at the time would have remedied any issues with his presence. Both Behnke and Gifloyle conveyed to Sidley, however, that if Newman wanted to be apart of the task force meetings, that he would have been–both because of his strong personality and because of his prominent position within APA as leading the Practice Directorate. |1149|

Behnke also stated that, in general, it was not unusual for the head of the Practice Directorate to attend meetings and task forces that related to the practice of psychology. And the conflict may not have been seen as problematic since, Behnke declared to Sidley, the question the task force was charged to answer was not whether psychologists should be involved in interrogation settings but how and in under what appropriate circumstances. |1150| Koocher also confirmed with Sidley that the purpose of PENS was to give ethical guidance to psychologists in interrogation settings and not to bar them entirely. |1151| If this framework is correct, however, then it appears APA never seriously questioned whether psychologists should be in detainee interrogation settings in the first place.

Newman owed a duty of loyalty to APA, which was in the midst of determining its ethical position on this critical issue. In doing so, APA needed to determine how to balance at least two important values: the importance of psychologists assisting the government in getting accurate intelligence information about potential future attacks in order to protect the public, and the importance of psychologists not intentionally "doing harm" to individuals except perhaps under carefully defined and constrained circumstances (such as helping an FBI agent ask questions of a Mirandized criminal defendant that might "harm" the defendant in the sense that it might produce evidence that could result in the defendant's conviction or a prison sentence). In determining its position, APA also needed to balance, on the one hand, the views and positions of military and national security psychologists with, on the other hand, the views and positions of those outside the military/national security system.

Because of Dunivin's obvious and strong interest and bias on these points, Newman had a classic conflict of interest, and it was incumbent upon him and APA to keep him out of the discussions and deliberations on this topic, and to disclose the conflict. Instead, the opposite occurred. No disclosure was made; Newman and Dunivin were included at many of the key points of the process, including the task force selection process and the task force deliberations; and both Newman and Dunivin inserted themselves and influenced the process and outcome in important ways. The various APA officials who were aware of the conflict and of all or some of Newman's and Dunivin's involvement–including principally Ethics Director Behnke, APA President Ron Levant, APA President-Elect Gerald Koocher, and also including to a lesser extent CEO Norman Anderson, Deputy CEO Michael Honaker, and General Counsel Nathalie Gilfoyle–took no steps to disclose or resolve the conflict.

3. Failed observers

There were other potential observers as well. In mid-June 2005, Behnke and Mumford both unsuccessfully reached out to their FBI contacts who were unavailable during the PENS meeting dates. Behnke explained the importance of having an FBI representative to Stephen Band to no avail. |1152| Arrigo suggested that APA legal counsel, an ethicist, and Matt Wynia of the American Medical Association would be good candidates as observers. Moorehead-Slaughter partially addressed Arrigo's request by responding that APA General Counsel staff would be readily available but there was no mention of Wynia after Arrigo's initial suggestion. |1153|

Behnke also failed to add as observers Gregg Bloche and Jonathan Marks. On June 22, 2005, Behnke sent Moorehead-Slaughter, Koocher, and Anton (including other APA leadership) a summary of upcoming news reports on psychologists in wartime interrogation settings. He attached Gregg Bloche and Jonathan Marks's upcoming article in the New England Journal of Medicine, "Doctors and Interrogators at Guantanamo Bay." |1154| The article detailed purported violations of medical ethics and mental health professionals who helped break-down detainees in interrogations. Behnke also remarked that the New York Times would publish another Neil Lewis article tomorrow and that a Jane Mayer article in the New Yorker would follow two weeks later. |1155| Behnke recommended that the task force invite Bloche and Marks to the PENS meetings as observers since they were the "most prominent spokespersons" in the "public arena." |1156|

Behnke recalled to Sidley that Moorehead-Slaughter may have rejected the idea of inviting Bloche before the PENS meetings, |1157| but Sidley found no evidence of this assertion. In fact, Moorehead-Slaughter drafted an email for Behnke to review that indicated her support of inviting Bloche and Marks on June 22. |1158| She later sent this supportive email to the same group as Behnke's original email. |1159| Gilfoyle raised issues about making sure the two signed a confidentiality agreement ahead of their potential attendance, though it does not appear she or anyone from the legal department rejected Behnke's suggestion. |1160| Instead, it appears that Bloche and Marks were ultimately uninvited after the first day of the task force meeting when DoD members expressed discomfort with having Bloche attend the meeting. Larry James even threatened to leave the meeting if Bloche was present. |1161| According to Arrigo's notes from the PENS meetings, James and Banks criticized Bloche and Marks's latest article for its accuracy and publication of John Leso's name. They worried for Leso and his family's safety as a result. |1162|

Other media reports were released on the eve of the PENS meetings that covered Bloche and Marks's New England Journal of Medicine article. For example, the Wall Street Journal had an article on it on June 23 |1163| and Neil Lewis published an article on June 24. |1164| Lewis's articles included additional interviews with professional organization representatives, including Behnke. Behnke noted that the task force was meeting over the coming weekend to address the issues raised in Lewis's article. |1165| If the issues and abuses at issue were not already clear when the task force was first created, they certainly were days before the meeting with these various media reports.

4. Using "safe, legal, ethical, and effective"

In separate conversations, Behnke impressed upon Moorehead-Slaughter to use Banks's framework for the meeting. On June 9, 2005 at 1:48 p.m ET, Behnke sent Moorehead-Slaughter a note on his preliminary thoughts for a PENS meeting agenda and outline of talking points. |1166| Behnke included the following comment about Banks's approach:

[On what differentiates ethical and non-ethical behavior in national security-related activities], Morgan Banks offers a very helpful analysis: Illegal vs. legal, and ethical vs. unethical. As Morgan points out, our focus should be on defining the "box" of legal and unethical. . . . In terms of an analytic framework, Morgan Banks offers a succinct analysis (posting 5/19), in which he states that psychologists' work should be 'safe, legal, ethical, and effective.' In one way of thinking, parcing [sic] each of these four words and applying them to psychologists' work in this arena is central to the task. |1167|

Coincidentally, Banks sent Sidley a two-page summary document derived from Banks's PPSI that included the words "safe, legal, ethical, and effective" at the top of the page and two ethical queries. |1168| The document's metadata indicates that it was last saved on June 9, 2005 at 12:58 p.m. ET, less than an hour before Behnke sent his thoughts to Moorehead-Slaughter. The time stamps suggest that Banks and Behnke may have conferred about these issues before Behnke sent his message to Moorehead-Slaughter. In interviews with Sidley, Behnke claimed that Banks's thoughts were akin to his own analytical approach–what he called a "four-bin analysis"–and, thus, found it immediately attractive. |1169|

On June 10, Behnke sent Moorehead-Slaughter a draft set of her opening remarks for the first day of the PENS meetings. |1170| One of Behnke's notes strongly implied that psychologists should be involved in these settings and that it would be far worse if these psychologists moved away from APA:

If psychologists in communities of professionals working in national security-related areas do not feel that APA is interested in and supportive of their work, they WILL drift away from APA. That would be bad for those psychologists, and bad for APA, the profession, and the public. We want to be clear that psychologists who are using the science and practice of psychology to protect our nation's security have a home at APA, and that APA welcomes and is grateful for their contributions to the profession and to our nation. APA wants to be a resource for these psychologists as they struggle with the ethical dimensions of their work. |1171|

Behnke, Moorehead-Slaughter, and Koocher met in Boston on June 16, 2005 to "think through some of [the] details concerning how to structure the meeting, as well as some of the larger questions, such as what the Task Force can reasonably be expected to accomplish with this meeting." |1172| Thereafter, Behnke drafted an agenda for Moorehead-Slaughter that she sent to the PENS listserv later on June 16. |1173| The agenda stated that the group should plan to have a report by the end of the weekend. It also stated that the group needed to identify the "bottom line" issues; the message specifically noted that the group "will especially want to offer as much guidance as we can to psychologists, particularly young psychologists, both in ethically ambiguous situations and in situations where it appears that other psychologists may be acting unethically." The message also declared that the "safe, legal, ethical, and effective"analytical framework provided was "a good way of anchoring ourselves in the 'bottom line' questions we need to address." |1174|

As is discussed later, however, though touted by Banks as a safeguard that would somehow ensure the humane treatment of detainees, his framework was flexible and general enough to allow for subjective judgments to be made, including by people such as Banks who interpreted the formula to permit stress positions and sleep deprivation in some circumstances.

5. Shumate's and Mumford's messages

On June 20, both Lefever and Shumate offered their first substantive messages on the listserv. |1175| Shumate looked forward to the discussions but cautioned against litigating the past:

I hope I can speak for my colleagues in the Department of Defense that we embrace the discussions and various viewpoints that will be represented at the table during the next four days. I look forward to sorting out the ethical guidance that we will recommend to APA while also being vigilant that we are not there to debate nor confront the past, present nor future policies of the Administration or the Department. I believe that we can do what is right for psychology while holding reserve on those aspects that we have neither the authority nor the charge to address. |1176|

Shumate was also brought up in a separate internal APA conversation with Behnke, Kelly, and Anton on June 20. |1177| Anton requested at some point to compile a glossary of terms for task force distribution based on a New York Times article that Fein forwarded on the PENS listserv. But issues arose over defining terms like "coercive" and "torture lite," which may, based on the article, include techniques that were legal at the time. Kelly flagged the issue first and suggested reaching out to Shumate, who "confirmed that the military guys on the task force would have removed themselves if (currently legal) procedures such as interrogation techniques were defined as cruel and inhuman and equated with torture." |1178|

Also of note, Mumford sent a note to his brother, John, on June 21 where he stated that the task force was "a complex group of psychologists carefully balanced with equal numbers of hawks and doves. . . timing couldn't be better as closing Guantanamo Bay seems to be in the news every day and many of those coming to serve the task force have been there or helped clean-up after Abu Ghraib." |1179| Mumford told Sidley he believed the task force was balanced because of the presence of Gelles, a known whistleblower, and James, someone who helped quell the abuses at Abu Ghraib. |1180|

D. Overall Observations

Several issues arise in the April - June 2005 listserv discussions that foreshadow the issues that arise during after the PENS meetings:

  • The behind-the-scenes communications show that Behnke was actively managing the direction of the discussions on the listserv, in part by drafting emails for the task force chair (Moorehead-Slaughter), who would then send them to the listserv verbatim, in which decisions were made or topics suggested. An analysis of her emails on the listserv shows that virtually all her postings were written by Behnke, which Moorehead-Slaughter and Behnke conceded to us.
  • Banks and Behnke collaborated behind the scenes about the eventual content of the Task Force's report, with the result that the key high-level framework set out in the then-draft DoD policy (written by Banks and Dunivin and later converted almost verbatim to official DoD policy) regarding the participation of psychologists in interrogations was (i) proposed by Banks on the listserv as a good framework for the Task Force, and then (ii) recommended by Behnke (through Moorehead-Slaughter) as a good framework for the Task Force. The framework–the interrogation practices must be "safe, legal, ethical and effective"–was touted by Banks as a safeguard that would somehow ensure the humane treatment of detainees, when in reality it was (as discussed more later) a malleable, very high-level formula that easily allowed for subjective judgments to be made, including by people such as Banks who interpreted the formula to permit stress positions and sleep deprivation in some circumstances. The evidence shows that minutes before Behnke sent Moorehead-Slaughter a draft email from his computer laying out the argument for this framework (which she posted verbatim minutes later), Banks had made the final edits on a document on his computer highlighting some of the same arguments for the framework (a document that was then likely shared with Behnke). And the framework became one key portion of the Task Force's report.
  • The meeting group was expanded in a careful way by adding two "observers" who were affiliated with the military and intelligence community. After several days of internal staff consultation and planning about how to add observers to the task force meeting, Behnke (through Moorehead-Slaughter) posted an email on the listserv inviting observer recommendations. In a coordinated fashion, APA Practice Directorate chief Russ Newman was added as an observer, despite Newman's conflict of interest because of his marriage to the Army's lead interrogation-support psychologist at Guantanamo. Michael Gelles subsequently recommended long-time CIA contractor/psychologist Melvin Gravitz, and he was quickly "confirmed" by Moorehead-Slaughter. As discussed later, both Gravitz and Newman spoke during the meeting in ways that supported the military/DoD psychologists. And Newman spoke forcefully about the importance of achieving APA's PR goals in a manner that was inconsistent with the efforts by some of the non-DoD psychologists to push for stricter, more specific ethical guidelines.
  • Efforts by Jean Maria Arrigo to set a broad agenda for the discussion and to ask whether certain assumptions behind the task force were correct (for instance, whether it was realistic to create a system of enforceable ethical guidelines for psychologists operating in a classified environment, since enforcement by a professional association would likely be impossible), were quickly rebuffed by Koocher in aggressive listserv posts. This was an intentional effort to curb dissent to the frame of reference APA had already decided upon–that the task force would issue a report at the end of the three-day meeting that would conclude that psychologists could ethically support interrogations, thus pleasing DoD, and that would be written in a manner that would provide APA with a good media statement to respond to the perceived negative press.
  • There were no serious discussions about whether psychologists should be involved in interrogation settings (Arrigo tried to raise these issues but Koocher rejected most her contentions); the conversations instead focused on how psychologists could be involved. With a majority DoD set of members, along with a sympathetic group of APA leaders at the helm, it appears that there was never any likelihood that APA was considering barring psychologists entirely from these interrogation settings.
  • DoD members, however, did have differences of opinion on the best use of psychologists in these settings and whether psychologists could ever play a moredirect role in interrogations. Several members appear to show an openness to using the Geneva Conventions as a guiding principle in outlining what psychologists can do in interrogation settings, though not necessarily as an ethical requirement as seen during the PENS meetings.


III. PENS MEETINGS AND REPORT

The PENS meetings took place on June 24 - June 26, 2005. Task force members initially met for dinner the evening of June 23. A typed copy of Arrigo's notes from the meetings document her impression of the discussions from these in-person meetings. Both the PENS listserv and a transcribed version of Arrigo's notes have been publically available, along with the PENS report itself. In addition, Sidley reviewed contemporaneous notes from Behnke, Susan Brandon, and an assortment of other task force members from the PENS meetings. |1181| We also interviewed every member of the task force and and nearly every observer.

The veracity of Arrigo's set of notes have been questioned by some. But this report can confirm that Arrigo's notes provide the most complete picture of what occurred during the meetings. For one, Arrigo provided us with the contemporaneous, handwritten notes she took during the PENS meetings, which align with what was transcribed in the typed version of her notes. In addition, the notes that Behnke and Brandon took on conversations during the meetings are reflected in Arrigo's notes, which indicate a consistency and accuracy across all sets of notes. And every interviewee associated with the PENS process who had seen Arrigo's notes believed it plausible that the notes captured much of the discussions over the weekend of meetings. All sets of notes from Arrigo, Behnke, and Brandon are appended to this report. The following subsections highlighting noteworthy comments during the in-person meetings rely primarily on Arrigo's notes from these meetings and interviews with Sidley.

A. Overall Impressions of Task Force Members

1. DoD Task Force members

Of the six DoD task force members, Banks and Scott Shumate appeared to have the most prominent positions within DoD. And Banks, far more than Shumate it appears, worked integrally on interrogation support issues. As Command Psychologist for the Army Special Operations Command and the senior Army SERE psychologist, Banks worked closely with and was involved with the Army psychologists at Guantanamo Bay and elsewhere who supported interrogations, including Dunivin. Banks came into the task force with a concrete idea of what the task force report should say and should not say, as he and Dunivin had already drafted what would become Army (and therefore DoD) policy regarding the details and limitations on using psychologists in interrogations, a confidential internal Army document that he distributed at the meeting.

The evidence shows that at the meeting, Banks was "persistent" about his agenda, in the words of a DoD task force member. His agenda was, according to the same DoD task force member, to get APA's "good housekeeping" seal of approval for the involvement of psychologists in interrogations and to otherwise keep the status quo and to avoid limits or constraints beyond the ones the Army or DoD had in place or would decide to put in place in the future. Another DoD task force member commented that Banks spoke out of "both sides of his mouth" in pushing his agenda but also appearing amenable to the non-DoD members' concerns.

According to at least one DoD task force member, Banks told task force members that he had consulted with his generals within his U.S. Army Special Operations Command and had already come to an agreement with his leaders that the "safe, legal, ethical, and effective" framework was the appropriate way forward. It is also likely that, while not directly in other command structures, Banks may have consulted with, or at least was aware of, other "army stakeholders" |1182| and their views on interrogation policy. These would likely include consulting with commanding generals of U.S. Special Operations Command and the Army Medical Command (the Army Surgeon General), and perhaps the Joint Task Force - Guantanamo, and the U.S. Southern Command. The evidence shows that that Army Surgeon General's Office was in fact in the midst of developing DoD policy on this issue and that Banks, Dunivin, and others were helping craft its policy. Banks's role on the task force, then, was not driven solely by him but educated by various command structures' needs on the issue.

Banks said and gave the impression that he did not want other DoD members to deviate from the direction he was pursuing. For most of the DoD members, this was either unobjectionable or in line with what they wanted to achieve. Gelles and James both believed psychologists should continue to be involved as consultants in interrogations, and at the time this remained a significant part of Gelles's job as a criminal investigator with NCIS. And both indicated in the meeting, in different ways, that a high-level report would probably be preferable to a more specifically-defined one. Fein, a DoD contractor within Shumate's unit, did not say as much but deferred to the positions of the actual DoD officials.

Shumate made it clear he was uncomfortable with public disclosure of specific examples that might provide further guidance, thought "coercive" was too broad a word to be used in this context, and may have wanted to manage the task force's public message by using words that softened the reality of the pressure DoD psychologists faced to help produce actionable intelligence. He informed Sidley that he briefed the head of CIFA after the report was finalized and believed that the report was "briefed up" at least within his chain of command, which would have included the head of CIFA, followed by the Deputy Under Secretary of Defense for Counterintelligence and Security, and then the Under Secretary of Defense for Intelligence. It is not clear, however, whether the report was briefed all the way to the Intelligence Undersecretary. Shumate also met with William Winkenwerder, then-Assistant Secretary of Defense for Health Affairs, and briefed him on the report's findings ahead of its release. |1183| Shumate explained that while the military side of DoD had a "tremendous interest" in the PENS report, the civilian side that he was apart of thought the report was a "positive" development but not an "essential" one for their needs. |1184|

2. Non-DoD Task Force members

There were two very strong pushes by Wessells during the meeting that–if accepted– would have created a report with tighter, more specific ethical constraints on national security psychologists involved in interrogations, in ways that would have been inconsistent with the strong preferences of Banks and key parts of DoD. The first, an attempt to use the provisions of the Geneva Conventions or other common international law sources to define the high-level terms being discussed at the meeting, was joined strongly by Arrigo and Thomas. This was rejected by the other members of the task force, and therefore in the Behnke-drafted task force report. The second was a subsequent attempt to create specificity within the document in other ways, by discussing where to draw the line between permissible and impermissible interrogation techniques a psychologist could be involved in (either based on a discussion of some of the most significant techniques being discussed publicly, or a description related to "psychological distress").

Thus, two pushes for ethics positions that would have made the Task Force report a very different document were explicitly made and were rejected by the DoD task force members and the APA task force leadership. The three non-DoD members acknowledge that if they had firmly and officially dissented and refused to accept the task force report, this might have made a difference. And in fact, Behnke and other APA leaders consistently offer the final sign-off on the report of the three non-DoD members as proof that the document does not merely reflect a pro-DoD position.

These three task force members clearly came to regret going along with the document at the end of the meeting, and insist that their failure to issue a final and overall dissent should not be taken as approval of APA's claim (made one day after the Task Force report was made public) that the report set out "strict ethical boundaries," |1185| since they had been told that APA only considered the report a first step and that the actual "boundaries" would be set out in a follow-up casebook. For Wessells in particular, and for Arrigo as well, the explicit promise that the report was simply an interim step to be quickly followed by a more thorough set of specific guidelines was crucial to their agreeing to sign off on the report. Wessells clearly felt duped when he was told six months later that nothing had been done on the casebook, and he resigned from the task force thereafter (discussed more later).

Arrigo and Thomas also cited a feeling of intense group pressure from the much larger group of DoD task force members and APA leaders (all men, they point out) to go along at the end, in order to enable APA to make a clear and positive public statement, including that APA was against torture. As psychologists, they all cite the "groupthink" psychological phenomenon as something that may have been a factor in their going along at the end, in addition to their belief that this was not–and would not be portrayed by APA–as a final, strong set of "strict ethical guidelines." Many observers from inside and outside DoD observed for us that there was a real "us versus them" split in the room, between DoD and non-DoD task force members, and that all the DoD members except for Banks sat on one side of the table, across from the non-DoD members. |1186|

Adding to this dynamic was the participation of Koocher on the first day and Newman throughout the meeting, both of whom spoke up forcefully in opposition to some of the key points of the non-DoD task force members. |1187| Banks and the DoD task force members had allies in Koocher, Newman, and Behnke who not only agreed with the strategy of deferring to DoD's preferences, but who also strongly cared about (and, especially as to Newman and Behnke, articulated during the meeting) the goal of ensuring that the result at the end of the meeting was a document that APA could use for positive PR purposes, that "calm[ed] the issues," avoided "rekindling the fires," and "clarified" and "simplified" because the press accounts had "messed up the message." In their vie, APA needed a clear, straightforward, public statement–without delay–that would solve the PR problem by portraying APA as a professional association that was taking to action to set ethical guidelines rather than sitting on the sidelines, while keeping DoD psychologists as involved and unconstrained as possible.

Based on what we have seen in our investigation, we agree with the three contributing non-DoD task force members that it is unfair for defenders of the APA task force report to use their end-of-report approval as evidence that the report simply reflects the consensus of a diverse task force rather than an intentional pro-DoD approach. The behind-the-scenes evidence squarely contradicts this, and a proper reading of the meeting proceedings is inconsistent with this as well.

B. Day One: June 24, 2005

1. Day one conversations

The topics discussed on the first part of the first day permeated the entire weekend of conversations at the PENS meetings. |1188| Some observations and commentary from the sequence of early conversations are listed below:

  • Moorehead-Slaughter's opening remarks noted that investigating past actions were the domain of the Ethics Committee, not the task force. Instead, Moorehead-Slaughter underscored the need to provide guidance to psychologists.
  • There was no indication from PENS participants that Moorehead-Slaughter played a leading role during any of the task force discussions. She was viewed as a figurehead by most everyone in the room, and multiple participants commented on how unfamiliar she was with the subject matter. It appears that Moorehead-Slaughter's predominant role was that of facilitator (and Behnke's agent as previously discussed) , though even that role was appropriated by others in the room like Newman. By all accounts, Moorehead-Slaughter's weak leadership stimulated the ability of other voices and views to dominate the conversation and led to the PENS report being, as Lefever put it, "not [a] very good product." |1189|
  • Soon thereafter, the DoD members, especially James, protested the idea of Bloche joining the PENS meetings. James went so far as to refuse being in the same room as Bloche. Banks noted that publishing John Leso's name in Bloche and Marks's latest article endangered Leso's life.
    • Of note, James told Sidley that he consulted with his chain of command before PENS to make sure that they were aware of his participation and that they had no issues. He specifically consulted with his two Navy clinical supervisors at his hospital, Walter Reed Medical Center, and made sure he "wasn't saying anything out of line." |1190| He also discussed the issue with Navy attorneys at one point, among other topics. James said the two take away messages from these chain of command conversations were (1) to ensure that psychologists kept their presence in detention settings, and (2) to inform DoD on how to conduct interrogations safely and ethically. |1191|
  • Early on, Thomas noted the need to take culture and ethnicity into account with interrogating detainees of various backgrounds. These considerations were included in later drafts of the PENS report.
  • Lefever made clear that his oath was to the United States and that U.S. law and community standards were his guidepost in determining what were acceptable practices. He defended the merits of certain harsher interrogation techniques and noted that he thought it was useful to think of DoD ethics and APA ethics as a Venn diagram and finding areas where the ethics overlapped and where they did not.
    • Though his ultimate views on which tactics were permissible may have been in the minority, |1192| Lefever appeared ready to discuss the ethical nature of various interrogation techniques. He later told Sidley that he welcomed having conversations on the specific interrogation techniques but believed there were multiple agendas/biases present during the meeting: (1) the stated agenda, which was to see if the ethics code adequately addressed the issues facing psychologists in interrogation settings; (2) the agenda of peace psychologists and "pacifists," as he called them, who likely did not want psychologists in these locations at all (or did not wish to commit to a specified list of techniques for fear of excluding others); and (3) the agenda of Morgan Banks, who strove to keep psychologists in these settings and grounded the discussion with his general phraseology of "safe, legal, ethical, effective," and who had little desire to discuss specifics. |1193| Lefever also noted that he got the "distinct impression" at one of the PENS dinners with task force members that Banks did not want to deviate from this phraseology in the PENS report. He also believed there was a general "fear" among other DoD members about addressing the issues in a concrete way so, instead, they wanted to "vote and get out." |1194|
    • Of note, Wessells and Lefever both appeared to arrive to the PENS meetings with honest but differing philosophical views of what to accomplish. Wessells's approach was more absolute and posited that certain actions and techniques were wrong under any circumstances. As such, the ethics code should reflect these right and wrong actions. He rejected a relativistic view of ethics and preferred to ground the debate in international legal principles that could serve as a lodestar to determine which behaviors were permissible. Lefever, on the other hand, believed there was a difference between techniques that caused pain (which were short-term and ethical) and those caused harm (which were long-term and unethical), and wished to explore this difference during the meeting. He also believed that determining what was ethical was based on community standards. So if a technique was deemed acceptable by the community, then it was ethical. Lefever explained that the ethical question was a separate inquiry from whether a technique was moral. Under this framework, there could be techniques that were ethical but immoral. Despite their vastly opposing views on ethics and morality, both agreed that the foundational question of the task force was to identify which techniques were permitted and which ones were not. And both were deeply criticized the final product of the task force for not answering this key question. Lefever called the report "not defined" and "loose," while Wessells described the process as an "absolute farce." |1195|
  • Banks disagreed with Lefever's Venn diagram approach and argued that all illegal behavior was already proscribed. The key question for Banks, as he also noted in his first May 11 message on the listserv, was determining what legal behaviors were ethical and then providing guidance for those behaviors. |1196| Bank's draft PPSI also included the point that the "Ethics Code is always subordinate to the law and regulations." |1197|
    • Banks's approach, as critics have pointed out, appears to have changed the understanding of APA Standard 1.02 at the time. The language in the rule stated a psychologist "may" follow the law if a conflict is unresolvable between the law and the ethical code. Banks raised this point earlier on the listserv to explore techniques that were legal but possibly unethical, but did not appear to pursue this line of inquiry during the meetings.
  • Shumate made comments that suggested specific guidance was needed for psychologists (Arrigo's notes : "provide structure, guidance. Embrace this as an opportunity."). He also appeared to be mindful of how to message certain issues, such as when he disagreed with Lefever about whether psychologists face "pressures" and preferred to use the term "encounter conflicts." He was also skeptical that a subsequent casebook would be feasible; he repeated this concern on the second day of meetings.
    • Shumate explained to Sidley that his comment about guidance reflected a general belief that in any situation, particularly one where there was a great deal of stress involved, it was important to have guidance in place. But Shumate clarified that he did not believe the PENS Task Force should have undertaken a deep dive into specific techniques that were permissible or not. Instead, he desired that more research was conducted in this field to determine what types of techniques and interrogation strategies were effective. |1198|
    • Shumate's skepticism on providing real-life examples foreshadowed his position in 2006 that the task force not lead the casebook process, as discussed later (exerpt from Arrigo's notes: "Getting publishable examples will be awful. No useful product. . . . maybe APA can generate it. DoD psychologists can't."). Shumate told Sidley that he thought the casebook would have been an "immensely large" undertaking and lead to logistical issues with classified information and DoD review. On the second day, Arrigo's notes indicate that Shumate stated he "thought that examples would alarm [people about the use of] psychological science." Shumate explained to Sidley that the comment referred to the public's misgivings about anything involving the word "interrogation." |1199| This point does not appear credible given that the notes talk about "alarm" and not misperceptions. It is more likely that Shumate believed that there would be a public outcry over actual examples and interrogation techniques used at the time.
  • Gelles harped on the point that psychologists should only assist in obtaining information but never in conducting the interrogation.
  • Newman, in his role as observer and as head of the Practice Directorate, asserted points that related more to the growth and protection of the profession as opposed to the ethical consideration. (ex: Arrigo's notes : "The profession will never advance if we don't apply the profession to new areas;" "The message that goes to our own field can reflect the complexity. The message that goes to the public cannot reflect the complexity;" "Should say what is being done that is appropriate. Got to clarify that psychologists are not engaged in inappropriate behavior on the whole.")
    • Newman led much of the task force discussions throughout the weekend. He often appeared to limit discussion on issues outside the perceived scope of the task force's mandate. He also openly discussed the political considerations of the report. Newman told Sidley that he believed that Arrigo's notes on what he said during the meetings were "not inaccurate." |1200| Arrigo attributed lines to him about "dampening the fires" and Newman agreed that he could have made that comment in the public relations context of the discussion. He did believe the message to the public should be simple and direct. Other observers in the room, in contrast with Newman, were instructed not to speak during the meeting. Brandon recalled that either Behnke or Mumford had informed that she could not offer comments during the meeting. |1201|
    • Newman agreed that he was a regular contributor during the PENS meetings and that, as general practice in all of his interactions with people, he tried to "speak with influence." A goal of his was to assure that the practices at issue would be "allowed to continue" within APA ethical framework. Newman insisted, however, that he would have deferred to the task force members or the Ethics Committee if they had determined that the interrogation practices were unethical. |1202| His role as the head of the Practice Directorate, what many within APA describe as the largest and most important Directorate within APA, only served to amplify Newman's voice.
    • Newman also told Sidley that, as head of the Practice Directorate, the image of the psychological profession was important to him, and he worked "as much as anybody" about the perception issues that APA had to manage both internally and externally with any public pronouncements. |1203|
  • After a recess, Moorehead-Slaughter opened the discussion by stating that "safe, legal, ethical, and effective" was a key analytical framework. The phrase had not been mentioned during the meeting until this time, though it had been used by Banks on the listserv before. And Behnke told Moorehead-Slaughter earlier over email, as discussed above, that the phraseology would be the analytical framework to use.
  • Two DoD members, Gelles and Lefever, both told Sidley that they were not impressed with Banks's analytical framework. Gelles commented that it sounded "cliche-ish" and that he did not understand what "safe" or "effective" meant. |1204| Lefever did not think there was any research to show that psychologists could make interrogations fully "safe, legal, ethical, and effective." Lefever described that he went along with the phraseology once it was clear to him that the meetings were not going to delve into the specific techniques and philosophical issues at play during interrogations. |1205|
  • Behnke, like Newman, also raised public relations-related considerations (ex: Arrigo's notes: "How repetition in the press messes up message. Clarify. Simplify;" "Certain words very evocative: explicit, manipulate, interrogate.").
  • After Behnke's comments, Fein, James, and Shumate all offered thoughts that suggested they wanted the report to stay at a more general level. For example, Fein noted how "No one can define 'torture,' " and James added that the group should "lay out basic principles, worry about definition later." Shumate also appeared to ask for latitude on what techniques to use until additional research was done: "We don't truly know what is effective or not effective. It's an empirical matter what works. Don't rule out until we know."
  • The group engaged in an ethical debate about dual roles soon after Behnke's comments. The PENS report ultimately rejected dual roles for psychologists (i.e., a psychologist who may act as both an interrogation consultant and mental health professional for a detainee).

After lunch on the first day, Behnke released a one-page first draft of the PENS report for review. |1206| The draft statement contained nine statements, not all of which were discussed in the morning meeting. The first statement noted that psychologists' "central role" was to "ensure that all processes are safe, legal, and ethical for all participants in the process." |1207| The first draft stated that psychologists "do not condone or participate in torture" but did not list cruel, inhumane, or degrading treatment (this language was included in the third draft of the report). In an interview with Sidley, Behnke did not recall whether he outlined any of these statements before the meeting but noted that he was sitting at his computer taking notes the first day. |1208| Koocher told Sidley that he believed Behnke had created a report template before the task force met but was unsure of the details. |1209| Additional discussions arose from Behnke's draft, including the issue of when one could use medical records and clarifying the roles of the psychologist.

The night of the first day's meeting and before the task force dinner, Behnke sent a partially revised draft report for Gilfoyle's review. |1210| Gilfoyle suggested adding language from (presumably) Banks's PPSI, listing possible activities for psychologists in interrogation settings as well as adding the word "effective" to the "safe, legal, and ethical" phrase in Behnke's draft. |1211| She noted that Behnke had a "problem" with the word "effective," but could not recall what she was referring to in her interview with Sidley. |1212|

2. International law

Starting on the first day, Wessells engaged with several DoD members and Koocher on the need for incorporating international human rights standards into the group's ethical understandings. Thomas and Arrigo also subscribed to Wessells positions. |1213| Wessells noted his discomfort with not mentioning human rights standards in their analysis, particularly Common Article 3 of the Geneva Conventions. |1214| He bluntly stated that the United States threw out human rights issues when it was inconvenient for their efforts, and that human rights organizations had declared that current U.S. interpretations of international laws were wrong. As Arrigo put in her notes on Wessells's comments:

    What kind of damage [will be done] to APA if we say we do not support human rights as defined in the Geneva Conventions and other conventions? What about [the] damage to our national security? If we engage in human rights violations, the message that sends to other countries [is damaging to our national security]. They therefore become our enemies and attack. . . . The standards [on international human rights] are not an issue for debate at this point. . . [The] APA Code commits us to human rights. Does American law trump international law? As a professional society, do we have commitments in [the] human rights direction? If we aspire to these things, can we throw international human rights away? APA is diverse but the diversity is not represented here. . . . We would damage ourselves as an association if we support American law when it contradicts international law. DoD has defined a set of standards not congruent with international law. If we endorse that, we damage our credibility. . . . As a professional association, at a moment of national panic, [we must] take a high standard. |1215|

Ultimately, the PENS report included language that did not ethically bind psychologists by human rights standards, but did state that psychologists should review the Geneva Convention Relative to the Treatment of Prisoners of War and the U.N. Convention Against Torture since they were "fundamental to the treatment of individuals." |1216|

Wessells told Sidley that he pressed his point several times to add binding language from the Geneva Conventions and the U.N. Convention Against Torture but that it was a "complete loser" with the DoD people in the room. He noted that the DoD members were "passionate" about upholding the existing military regulations at the time, which permitted what he called "torture-lite." |1217| He later bemoaned that "once ethics becomes the handmaiden of patriotism," you were not talking about ethics anymore and, instead, were allowing ethics to be "appropriated by these other concerns." |1218|

Incorporating international law into the PENS report was one of the most contentious issues over the meeting period. While several DoD PENS members expressed an openness to abide by the Geneva Conventions or the U.N. Convention Against Torture, none appeared comfortable mandating that psychologists in detainee interrogation settings follow them at all times. Several of these members said they, or their DoD colleagues, could not accept a position that varied from the requirements of U.S. law. In other words, as DoD officials they could not agree to be bound by constraints on their behavior that went beyond the constraints set by U.S. law. The DoD members gave various reasons for their stance to Sidley, as discussed below.

  • Gelles told Sidley that adding the Geneva Conventions language was moot since his team at NCIS was already "doing the right things." But he expressed that adding such language could "tie up the Army and military guys." Gelles recalled that no one in the military asked him to explicitly lobby against using international law, but Gelles remembered that people informally said "we have to make sure this doesn't happen," referring to adding human rights standards. He was fairly certain that the "military guys" were advocating this position, not Fein, Gravitz, or Shumate. He also recalled phrases from members about how adding international legal standards would present a "serious obstacle" to efforts during wartime (and where the Geneva Conventions may not apply). |1219| Gelles surmised that the military members wanted to incorporate as much of Banks's PPSI into the report so that they could "protect themselves" and quell any conflicts between military policy and APA ethical pronouncements. Gelles went along with the approach since, according to him, it did not impact his work and because he believed the report was an interim step in a longer process. |1220|
  • Banks explained that inserting international human rights language into the PENS report could have created a "break" between a military officer's oath of office, which included a promise to follow U.S. law, and the APA's Ethics Code, which could lead to a dilemma where an officer would have to break their oath (and possibly the law) or break their ethical duties. Banks stated that U.S. law already incorporated the Geneva Conventions, so it was unnecessary to specify abiding by the international law. Banks acknowledged that there was a debate about whether the Geneva Conventions applied to detainees at the time, and that the definition of torture was interpreted narrowly by the Department of Justice. The solution to this issue, according to Banks, was the addition of the "cruel, inhuman, and degrading treatment" language in the PENS report, which would have encompassed techniques that were not considered torture but were still problematic. |1221| Those terms or techniques were not defined in the report, however, as discussed further below.
  • James noted during the PENS meetings that he had no problem abiding by the Geneva Conventions. He remarked to Sidley, however, that psychologists from other agencies, such as the CIA, would have run afoul of these standards if they were mandated in the PENS report. While James disagreed with the CIA's approach to interrogations, he told Sidley that he did want the report to be used as a "whipping tool" to go after these psychologists. |1222|
  • Fein said that he was not as familiar with the interplay between the various legal standards discussed at the time of the PENS meeting. To him, the military members' point that the U.S. Constitution was the guiding principle for the military made sense at that time. In retrospect, he stated that the report would have been better served if there was more specific information about issues of coercion. |1223|
  • Shumate told Sidley that it would be a "huge issue" if the task force had inserted international law into the report, and that he was most comfortable with following the laws of the United States. He expressed that, practically, if the group decided to follow certain international legal principles, then progress on the report would have been "encumber[ed]" with discussions about these details. Shumate made comments throughout the meetings that suggested he could not take a public stand as a senior DoD official that was viewed as contrary to U.S. law, but he denied to Sidley that this was a consideration for him. |1224|
  • Lefever rejected the utility of international human rights standards in the document. He welcomed a discussion into which specific techniques were permissible but wished to follow U.S. law alone, especially as human rights standards were often hypocritically espoused by the most oppressive of nations. He did not wish to open that "can of worms." |1225|

While these positions may have been understandable as a statement of U.S. governmental policy, Koocher also attacked the idea of the APA tapping into international law definitions in crafting ethical guidance, calling it a "distraction to draw international law" into APA's ethics guidance. |1226| As one DoD task force member described it, and others suggested as well, Koocher took a very "pro-America" stance throughout the PENS process. The report thus rejected the use of or reference to international law, except to the extent it was incorporated into and consistent with U.S. law (as then defined, including through the OLC memos)

But these hesitations to use international law in the report ignored the alternative ways that the report could have embraced standards from international laws without fully adopting that international instrument. For example, instead of having a report that stated that psychologists had to abide by all of the provisions of the Geneva Conventions, some of which may not recognized by the United States, |1227| the task force could have specified which Geneva Conventions applied–in this case, the Third Geneva Convention related the treatment of prisoners of war, which the United States recognizes. |1228| If this was still problematic given the uncertain nature of detainees' legal status, the task force could have adopted language from the Geneva Conventions without formally approving any portion of the instrument. Article 17 of the Third Geneva Convention, for example, provides readily-adaptable language on the parameters for questioning prisoners. |1229| The reference to the international law would have been a stronger touchstone for the report, as opposed to U.S. law or military directives that could have been (and were) trumped by pronouncements from the OLC or the Secretary of Defense.

Some say that this observation about avoiding international law shows the automatic impact that selecting a majority of DoD officials had on the task force's conclusion. But we think that it actually shows an even more intentional decision by the APA task force leaders and the DoD psychologists not to voluntarily commit psychology as a profession to a more robust set of ethical limitations. To do so would have shown leadership on the issue in a way that likely would have put APA at odds with DoD and the Administration. This may have caused a conflict that would have resulted in DoD employing fewer psychologists or to writing policy that subordinated the role of psychologists in interrogation and detention matters; and it may have prompted some DoD psychologists to leave APA membership (although Banks was already outside of APA membership).

But sometimes leadership in this manner causes external change rather than just conflict. Thus, taking this direction (especially if the other leading health-care professional associations also took ethical positions that were less accepting of the Administration's position, as they ultimately did) may have caused, or placed pressure on, DoD or the Administration to change its position regarding the use of international-law definitions in these circumstances. By going along with the "simply follow U.S. law" position of the DoD task force members, the APA task force leadership was making an explicit choice to follow what DoD wanted rather than making an independent decision about what were the appropriate ethical rules for psychologists in these situations (other than the decision that was best for DoD was best for APA).

3. Confidentiality of meetings

The most tense portion of the first day came at the end of the meeting when the topic of confidentiality arose. Anton first raised the point during the meeting, to which Moorehead-Slaughter replied that all conversations must stay in the room and not discussed outside. |1230| Arrigo noted that she complained about the "secrecy" at the time. Newman added that keeping discussions confidential was advisable since they were dealing with a controversial topic and conversations or varying views about it could "ignite the fire instead of dampen it." |1231| Lefever proposed discussing the issues back to his "community," but multiple people rejected his proposal. Breckler resolved that, given the "potential for varying interpretations," the PENS report should speak in a "single voice," otherwise there would be many different versions. |1232| Ultimately, a vote was taken and all members, save for Arrigo who dissented and Wessells who abstained, agreed to keep discussions confidential.

Shumate also demanded that Arrigo stop taking notes during these conversations. Gelles relayed to Sidley that the Arrigo episode the first day contributed to an "us versus them" mentality between the DoD and non-DoD members. |1233| Arrigo told Sidley that she was "so upset" after the first day of meetings. |1234| Her remaining notes from the meetings were largely taken on the margins of various PENS draft reports and are not as complete as her notes from the first day of discussions.

It appears, however,the "no taking notes" policy was unevenly enforced. For example, Susan Brandon, an observer in the room the first two days of the PENS meetings, was never instructed to cease her note-taking according to her interview with Sidley. |1235| Thomas recalled to Sidley that note-taking was not explicitly disallowed. |1236| But she posited that the group may have had to leave their notes in the room during the meetings. |1237|

Anton later emailed Koocher with an update on the group from day one (Koocher left the proceedings by lunch time due to a family emergency and was not in attendance the rest of Friday afternoon or Saturday). |1238| Anton remarked that the "DoD folks" offered useful insights during the meeting that illustrated how "complicated" these issues were. |1239| He also described the afternoon's confidentiality discussion as Arrigo was "taking copious notes." |1240| He added that Shumate and others felt "uncomfortable" with her note-taking and that the group, by "split vote," agreed to keep all meeting matters confidential and have the report speak for the group. Koocher responded to Anton, copying Behnke, that he, too, "felt concerned" about Arrigo's note-taking. |1241| He suggested that it be made clear that the task force conclusions "should be reached by consensus," and that no communications during the meeting "be cited for attribution UNLESS there is unanimous agreement and these appear in the approved report." |1242|

It should be noted that APA's policies on the closed sessions were addressed in an internal February 3, 2003 memorandum from Norman Anderson, which outlined the limited circumstances where closed sessions were permissible for "personnel issues":

    As a general principle, the meetings of APA groups are open to any APA member and APA staff. Occasionally, during board, committee and task force meetings, sensitive matters must be discussed. Requiring that all meetings be open at all times could inhibit full and frank discussion. However, in order to respect the free and open flow of information within the association and to reduce the appearance of "secret decisions," closed meetings should be as infrequent as possible and primarily limited to personnel issues or issues that might cause personal embarrassment to the individual being discussed. Some of the work of a few groups such as the Ethics Committee and the Committee on Accreditation involves information of an inherently confidential nature about individuals or institutions and their meetings are restricted pursuant to adopted rules or procedures. |1243|

Allowing a limited number of observers for an APA task force, all of whom were pre-approved to attend, may not comply with the spirit of the February 2003 guidance. Gilfoyle defended the PENS meeting structure. |1244| She stated the February 2003 memorandum focused on closed meetings that involved no staff; this was not case in PENS where multiple APA staffers were present. Gilfoyle also found the PENS setup less problematic since the task force was not a formal APA decision-making body like the Board of Directors. She also believed full and frank discussion could have been inhibited if the meetings were more open. |1245|

C. Day Two: June 25, 2005

1. Discussions about research

The evidence shows that Mumford, Brandon, Newman, and Gravitz made drafting suggestions regarding the research recommendations, and at least some of Brandon's drafting suggestions made it into the final version.

Critics have pointed to some of this language as an indication that APA was intentionally attempting to provide ethical support for research by the CIA or DoD on detainees at Guantanamo or elsewhere, or was otherwise attempting to allow for research that involved harsh interrogation techniques without the proper human-subject-research protections.

On the one hand, we found two notes in Behnke's handwritten notes from the PENS Task Force meeting in which the phrase "research on detainees" or "detainees as research subjects" was noted. Behnke provided no explanation for these notes, and we found no emails or other documentary evidence relating to them. In addition, in a meeting at the Department of Homeland Security about two years earlier attended by Mumford and Brandon, one of the subjects discussed was collecting data relating to detainees. Sources have told us without corroboration that there is evidence of the CIA engaging in activity regarding detainee interrogations that would constitute improper research.

Further, the language in the report's research passages appears deficient. Ethics experts have told us that the language in the PENS report quoted above was woefully deficient in terms of the language that would typically be expected in order to communicate proper protections. And the language regarding "cruel, inhuman, or degrading treatment" is ambiguous, and so may easily be read to suggest that the research being described is to determine if interrogation techniques that Americans would find cruel, inhuman or degrading may not be consider so bad by other cultures.

On the other hand, we did not see evidence linking these recommendations to any actions by APA officials regarding research, or linking their drafting to efforts by the government to use a recommendation in the PENS report as a helpful point in being authorized to conduct human subjects research without informed consent. We noted that these recommendations are not in the 12 ethical guidelines in the PENS report, and therefore do not have the force of ethical guidelines for psychologists, in a way that might be pointed to as a justification for a psychologist's actions.

We found this a topic on which it was difficult to draw clear conclusions, and our discussion and analysis of the evidence is below.

Mumford sent Behnke a series of three emails the morning of the second day of PENS meetings that included draft language on conducting research in national security settings. The first message was sent at 8:16 a.m. ET, |1246| the second at 10:09 a.m. ET, |1247| and the third at 11:30 a.m. ET. |1248| Each of Mumford's emails added another paragraph from the previous message. Mumford did not specifically recall with Sidley who or what prompted discussions about this topic. Some of the draft language was included into the final report.

A copy of the draft language from each email is listed below with comments on each:

First email draft language:

Psychologists support research to evaluate the efficacy of methods for gathering accurate and reliable information relevant to national security. Such research should be designed to minimize the risk/benefit ratio and emotional/physical harm to the research participants consistent with existing standards of human subjects research and APA ethics code. |1249|

  • A version of this statement appears as recommendation #7 in the final PENS report. It removes the "risk/benefit ratio" and "emotional/physical harm" language and instead states the need to "minimize risks to research participants such as emotional distress . . . " |1250| Brandon told Sidley that she may have contributed to the revisions of this research point in the PENS report though she was unsure. |1251| Behnke stated that, while he did not recall the draft language, he would have been comfortable with the change made in the final report since the risk-benefit language may be used to justify all kinds of risk in the name of saving lives. |1252|
  • The same recommendation continues by stating that the research should be "should be consistent with standards of human subject research protection and APA Ethics Code." Behnke stated that he understood "standards of human subject research protection" to mean what medical ethicists thought were appropriate standards. Mumford believed the language was an "unassailable and appropriate affirmation" to conduct research that followed all standards of APA's "Responsible Conduct Research." |1253| But read another way, the language may have accommodated the prevailing Wolfowitz Directive, which allowed DoD division leaders to waive informed consent for certain detainees. |1254| More on the Wolfowitz Directive was discussed earlier in this report. Behnke countered that research on detainees would not fulfill the other language in the paragraph about how "research should be designed to minimize risks to research participants," even if the research was observational or to examine archived data. |1255|

Second email draft language:

Psychologists support research to evaluate the efficacy of methods for gathering accurate and reliable information relevant to national security. Such research should be designed to minimize the risk/benefit ratio and emotional/physical harm to the research participants consistent with existing standards of human subjects research and APA ethics code.

Because disclosing the results of such research could compromise the development of enhanced sources and methods, it may not always serve the national interest to explain deception used in the research design or to include the debriefing standards contained in 8.07 and 8.08. |1256|

  • The new paragraph suggests that debriefing could be discarded if the "national interest" was strong enough. The final report does not make this claim, but in its conclusion section, it does note the "tension between conducting research that is classified or whose success could be compromised if the research purpose and/or methodology become known and ethical standards that require debriefing after participation in a study as a research subject." |1257| The new paragraph also makes note of "enhanced sources and methods" without any explanation of what those are.
    • Breckler told Sidley that this paragraph in the final report, though poorly worded, likely related to research being conducted at Department of Homeland Security Centers of Excellence and having psychologists involved in those studies that included research on deception and interrogations. He added that the issue of debriefing in classified settings was subject of much debate, so that was why the "tension" language was added here. |1258|
  • Mumford thought that the new paragraph came from someone with a "national security interest" and speculated that Fein may have suggested this since he was the research expert. Mumford also told Sidley that he interacted most with Shumate at the time, but thought it unlikely that Shumate would have offered this language. |1259|
    • But Mumford may have had more of a direct role in drafting these two paragraphs based on a message he sent earlier to Behnke, Breckler, and Kelly. On May 23, 2005, Mumford emailed the three and used the "risk/benefit" language and queried whether "all coercive techniques should be discredited," or if there were techniques available "that would pass some risk/benefit test?" |1260| Mumford then stated that "behavioral scientists get away with using deception/coercion all the time in research with the understanding that participants are later debriefed as to the true nature of the research. ..couldn't it be argued that the application of those techniques (sans debriefing) in national security settings are justified?" |1261|
  • This paragraph in particular suggests that research on detainees could have been envisioned at some point by someone associated with the task force. It is hard to explain why the "national interest" would be a factor in research conducted in a lab or other closed setting; the language seems more likely to relate to questioning people and not revealing what one's research intentions were.
    • Mumford later suggested to Sidley that the research paragraph may have envisioned something like the Transportation Security Authority's Screening Passengers by Observation Techniques ("SPOT") program, |1262| a type of behavioral detection program that has been met with controversy. |1263| The TSA SPOT program, however, did not exist until January 2006; |1264| it is possible that a program like that was envisioned at the time, however. Also, as mentioned above, Breckler suggested that DHS Centers of Excellence were envisioned when discussing research opportunities for psychologists in national security settings.
  • Brandon told Sidley that the new paragraph appeared to have come from someone involved in the counterintelligence community, perhaps Shumate or Gravitz. |1265| She stated that it sounded like a clinician without much experience in research wrote the language since a psychologist always needed to debrief a research subject. |1266|

Third email draft language (email subject notes that Gravitz and Newman provided input):

Psychologists have the obligation to utilize psychological knowledge derived from recognized authoritative sources (e.g. research, experience to inform professional judgement [sic]) in the furtherance of their scientific and professional activities. (e.g. efficacy of using positive reinforcement vs. negative reinforcement).

Psychologists support research to evaluate the efficacy of methods for gathering accurate and reliable information. Such research should be designed to minimize the risk/benefit ratio and emotional/physical distress to research participants consistent with existing standards of human subjects research protections and APA ethics code.

Because disclosing the results of such research in certain contexts could compromise the development of enhanced sources and methods, it may not always serve the interests of national security to explain deception used in the research design or to include the debriefing standards contained in 8.07 and 8.08. |1267|

  • The new introductory paragraph underscores the "obligation" psychologists have to use all "authoritative sources" to further their activities. This paragraph does not appear in the final report, though a conclusion paragraph under Statement Twelve contains language states psychologists "should encourage and engage in further research to evaluate and enhance the efficacy and effectiveness of the application of psychological science to issues, concerns and operations relevant to national security." |1268| Mumford remarked to Sidley that this draft paragraph reflected the emphasis the practice community (as opposed to the research community) placed on professional judgment. |1269|
  • The final report paragraph also states the need to be aware of cultural differences and its impact on what information-gathering methods were cruel, inhuman, or degrading ("CID") treatment (Statement Twelve, fourth bullet). This sentence could be read as weighing cultural differences in defining what might be "cruel, inhuman, or degrading" in one culture versus another. For example, if it was believed that a detainee from Saudi Arabia would consider only a 'high-level" of harsh techniques degrading, then an interrogator would be permitted to use other "low-level" harsh techniques for that Saudi detainee.
    • Brandon believed she may helped write the full paragraph but that the cultural differences point was poorly worded in retrospect. |1270| The sentence was supposed to convey the need to be respectful to other cultural backgrounds, not imply that what was considered cruel was relative to a detainee's cultural background. |1271|
    • Behnke told Sidley that wished he would have included a clause to clarify that cultural differences in "cruel, inhuman, or degrading" meant a technique was not cruel in either the detainee's or the interrogator's culture. |1272| He explained that any potential concern, however, would be removed when reading the second bullet point under Statement Seven of the report, which links safety and efficacy to cultural understanding ("How failures to understand aspects of individuals' culture and ethnicity may generate misunderstandings, compromise the efficacy and hence the safety of investigatory processes, and result in significant mental and physical harm."). Behnke argued that safety and efficacy were linked, and that he relied on Banks's comments on the PENS listserv about how using SERE techniques and gathering accurate information were "diametrically opposed" with one another. |1273|

Brandon, Behnke, Breckler, Mumford and others at APA have told Sidley that, despite these draft statements and ambiguous/poorly drafted PENS report language, research on detainees were never discussed or pushed by task force members or outside entities. |1274| Brandon also stated that when she first joined the High-Value Interrogation Group ("HIG") in 2009, one of the first things she inquired about was whether any government agencies had conduced research on detainees; she found no records. |1275|

Yet in one of Behnke's handwritten set of notes, likely from the second day of the PENS meetings, |1276| he noted two instances of detainee research–on the first page of notes, Behnke wrote "detainees as research subjects;" on the last page, Behnke wrote "research a detainees?" |1277| The second note is crossed out by two dotted "X" marks. These notes do not appear in either Arrigo's or Brandon's set of notes, implying that these thoughts arose from side-conversations Behnke had or thoughts he had himself. Behnke could not recall why he wrote those notes but insisted that these topics were not discussed during the PENS meetings. |1278| In addition, interviews with government officials revealed a strong awareness after September 11 about the possibility of gathering data on detainees and the debates that ensued in the years after. |1279| None of the interviewees were aware whether research on detainees ever occurred, but the topic was discussed in government circles–where researchers could observe detainees and the interrogation tactics that were used, be it in real-time or with archived data, without any involvement in the interrogation itself. The PENS report's research language, which is limited, appears to leave space for these kinds of efforts to occur. But we were unable to conclude that this, in fact, was what was envisioned by anyone at the time.

2. PENS second draft report

Behnke distributed a second draft of the task force report at the start of the second day of PENS meetings. Behnke's hard copy files from the PENS meeting contains his copy of the second draft along with his notes in the margins. A copy of this draft is appended to this report. |1280| Twelve statements appear in this draft and , save for Statement Seven, each appear in the final version of the report, albeit in a slightly different order and with wording changes. But the vast majority of this draft comprises the final report. So after one day of task force deliberations, Behnke drafted a document that would largely become the final PENS report's twelve statements.

Statement seven in this draft, which is excluded from the next draft version, is the one statement in any draft version that offered more specifics on when and what "techniques" to use. The statement reads as follows:

    [P]sychologists do not consult on techniques that would cause psychological distress except for a clear, legitimate purpose, such as to prevent future acts of violence. Punishment and obtaining a confession do not constitute legitimate purposes. If psychologists consult on activities that would cause psychological distress, they follow the restrictions on psychological distress set forth in Ethical Standard 8.07, Deception in Research, which places boundaries on the degree of psychological distress researchers may impose upon research subjects.

The statement outlined a "legitimate purpose test" to determine when a psychologist could consult on techniques that cause "psychological distress." This potentially large loophole on using techniques that cause psychological distress is limited by the next sentence, which specifies that punishment and obtaining a confession are not legitimate purpose. This language incorporates a portion of the U.N. Convention Against Torture's definition of torture, which states that for an act to be considered torture, it must be done for one of several purposes, including obtaining "information or a confession," "punishing him," or "intimidating or coercing him or a third person." Behnke's used the "confession" and "punishment" limitations, but left out the "obtaining information," "intimidating," and "coercing" limitations. |1281| Thus, Behnke's draft allowed psychologists to recommend an interrogation technique that would cause psychological distress as long as their purpose was to get information in order to prevent future acts of violence, and was not to punish or obtain a "confession." Behnke's draft also created a novel second limitation–that psychologists in these situations needed to follow the restrictions set out in a research provision of the Ethics Code Standard 8.07, which provides that psychologists do not deceive prospective research participants about research that is reasonably expected to cause "physical pain or severe emotional distress." Behnke said he could not recall why he included this provision as a type of limitation.

Arrigo's notes from the second day onward are much less comprehensive since the group voted on confidentiality and Shumate insisted that she cease note-taking the day before. She wrote notes on the margins of the draft reports, which were then transcribed. But the notes appear to corroborate the notion that there was some discussion about the draft statement and also specific techniques more broadly. It also appears that Banks was against the language:

    [Anton] Psychologist as advisor to induce stress.

    [Banks] Thinks confession is legitimate purpose [for consultation with a psychologist].

    [unattributed] Psychologists do not conduct interrogation except possibly in emergency field condition.

    [Banks] Often we do try to exploit psychological distress. We need the boundaries.

    [Gelles] Creating conflict in a person is the way to move towards confession.

    ...

    [Wessells] The disorientation techniques remain. Our reputation in this profession depends on this document.

    ...

    [Wessells] Still worried about the gray areas.

    ...

    [unattributed] the point on the dial. Do we need to address this? We will be asked. E.g., sleep deprivation. |1282|

Wessells recalled a longer discussion about whether "psychological distress," as noted in the Statement Seven draft language, was an appropriate dividing line for lawful or unlawful interrogations. People like Gelles and Shumate, Wessells believed, thought the line was inappropriate since it could encompass lawful domestic interrogations that involved plea bargaining, which could involve a certain level of distress. Wessells also recalled "evasive" discussions with Banks, who opposed this new language, about specific interrogation techniques. On sleep deprivation, for example, Wessells inquired to Banks how sleep deprivation was used. Banks remarked that having someone sleep three or four hours the night before an interrogation could be useful. Wessells then asked whether the techniques could be used on successive nights and, if so, how many and whether it could be used in combination with our techniques. He did not receive a direct answer. As discussed more below in his resignation from the task force, Wessells believed that the DoD members did not wish to discuss these issues because it opened the possibility of challenging existing military regulations. |1283| The topic of waterboarding may have been discussed informally between Wessells and Lefever, too, though not likely with the larger group. |1284|

Behnke told Sidley that he believed that the statement was removed at Breckler's behest. Behnke recalled that Breckler wanted to remove the reference to research. Breckler said it was possible that he asked Behnke to remove the language, but was unsure. In analyzing the draft report language anew with us, however, he stated that the 8.07 language was inconsistent with the draft statement's first sentence about psychological distress, since Standard 8.07 specifically dealt with deception in research only and not with various types of psychological consultations. |1285|

When asked why he removed the full paragraph instead of only the statement citing Standard 8.07 (or refine the "legitimate purpose test" another way), Behnke responded that he likely viewed the paragraph as one unit; once the research sentence was gone, then he thought to remove the full paragraph. Behnke also said the provision could be read broadly, where people could justify harmful acts in the name of preventing future acts of violence. Behnke was not sure why he did not refine the test–perhaps outlining a rule that always barred psychological distress, allowing it in limited circumstances, making it broader, or perhaps using guidelines in the Geneva Conventions |1286| –and instead removed it from the next draft entirely. |1287|

The statement was ultimately replaced by an unrelated issue about reminding psychologists that the individual being interrogated "may not have engaged in untoward behavior" and may not have useful information. |1288| In analyzing a series of handwritten notes from members, |1289| Banks was the one who recommended this new statement. |1290| Arrigo told Sidley that she had originally raised a concern about interrogating detainees who were innocent and that Banks drafted the wording for Behnke's consideration. |1291| Given that Banks was against the draft statement's minimal restriction on causing psychological distress, and given his overarching goal to keep the PENS report in concert with military guidance, it is likely that Banks appropriated Arrigo's concerns both to curry favor with Arrigo and to block the use of any language in the report that assessed the validity of certain techniques. This assertion is further supported by later conversations between Behnke and Banks after the report was finalized about how the key issue that people will ask about that is not addressed in the report is the amount of psychological distress that is acceptable (discussed in the PENS Aftermath section).

The third draft of the report still included a reference to "psychological distress," but that was removed entirely by the fourth version of the draft report: |1292|

Third draft report (circulated at the start of June 26):

    [P]sychologists who consult on interrogation techniques are mindful that the individual being interrogated may not have engaged in untoward behavior and may not have information of interest to the interrogator. When psychologists serve as consultants to interrogation, and especially when such consultation concerns techniques that potentially generate psychological distress, psychologists consider whether the techniques consulted upon would be deemed ethically appropriate should such determinations related to guilt and relevance ultimately be made. At all times psychologists remain mindful of the prohibitions against engaging in or facilitating torture and other cruel, inhuman, or degrading treatment. Psychologists inform themselves about research regarding the most effective and humane methods of obtaining information and become familiar with how culture may interact with the techniques consulted upon. (Ethical Standards 2.01, Boundaries of Competence; 2.03, Maintaining Competence; and 3.01, Unfair Discrimination)

  • It appeared that Gilfoyle flagged the language in the third draft as confusing. |1293| After the bold section above, she wrote "I'm not sure it's clear what you mean here -if they are innocent or had no info , would the tactics used stand up to scrutiny? . . . It also sort of raises the specter that they may just be detained indefinitely and never have such a determination made." Behnke responded to Gilfoyle that this statement represented an "extremely complicated issue," that was "one of the most challenging ethical issues in this whole area." |1294| This exchange may have led to the changes in the fourth draft, which avoided using the term "psychological distress" at all.

Fourth draft report (circulated at the end of June 26):

    [P]sychologists who consult on interrogation techniques are mindful that the individual being interrogated may not have engaged in untoward behavior and may not have information of interest to the interrogator. This ethical obligation is not diminished by the nature of an individual's acts prior to detainment or the likelihood of the individual having relevant information. At all times psychologists remain mindful of the prohibitions against engaging in or facilitating torture and other cruel, inhuman, or degrading treatment. Psychologists inform themselves about research regarding the most effective and humane methods of obtaining information and become familiar with how culture may interact with the techniques consulted upon. (Principle E, Respect for Peoples' Rights and Dignity; Ethical Standards 2.01, Boundaries of Competence; 2.03, Maintaining Competence; and 3.01, Unfair Discrimination)

This draft statement seven was the one instance across any of the drafts that aimed more specifically at the techniques that may or may not be used in an interrogation. No version of it survived the later drafts and final report. To be sure, it does not appear in anyone's notes that this statement impassioned as much debate as the issues of international law. But the dynamics of the room–the number of DoD members, Newman's role as leader of several discussions, Behnke's role as lead drafter, members admonishing Arrigo on the first day, the promise of the meetings and report being an initial step in the process–likely stifled talks on this and other statements in the report.

3. Other day two conversations

The conversations from the second day of PENS meetings largely followed from the first day. Some observations are listed below: |1295|

  • Gelles retained an absolute position on psychologist never conducting interrogations while the military members of the task force disagreed.
  • Newman continued to lead conversations of the task force and reiterated the need to keep the report's message direct as possible (ex: Arrigo's notes: "Don't go too far in discussing psychologists as interrogators so as not to expose ourselves and complicate the issue.").
  • Behnke, too, raised similar concerns as Newman (ex: Arrigo's notes: "Attend to level of specificity in document so as not to cause difficulties.").
  • Wessells continued to press for international standards in the document or a discussion of specific techniques. Behnke cited to some of the international legal standards in the subsequent draft document as discussed below. Pointedly, Wessells was noted as saying that "disorientation techniques remain," and that psychology's "reputation . . . depends on this document." Gelles was noted as saying that he "[w]ants to postpone" a further discussion on these issues.
  • Lefever provided additional examples of what he believed were permissible interrogation tactics.
  • Banks and others raised the issue of psychologists' role in preventing behavioral drift. This psychologist role was added in the next draft version of the report and part of the final report.
  • Arrigo brought up the idea of a casebook with examples and received support from several task members and observers about his idea, including Newman. As discussed later, the idea was never realized within the task force.
  • Gravitz joined the group as an observer and offered a few comments during the meeting. At one point, Wessells recalled to Sidley, that Gravitz offered comments on the use of coercive methods. Wessells and Arrigo thought the methods would never work but Gravitz disagreed, stating that some methods were needed under "certain circumstances." |1296|

Anton emailed Koocher after the second day of the meetings and provided a summary that highlighted problems with Arrigo and his approval of the "DoD folks":

    Jean Maria got pretty loose today - e.g. questioning why the American Psychological Association was called the American Psychological Association. She did alot of splitting too, in my opinion, and was quite difficult. She continued to take notes, writing on the margins of our in-progress papers in spite of assurances yesterday that she wouldn't. I think she aliented [sic] everyone but Mike Wessells [sic] and I'm not too sure about his feelings. I have to say that DoD folks were gentle, respectful, and open to her, but also were able to express their views. They are very interested in a continuing dialogue with APA and were pleased to be there and look forward to collaborating on other projects." |1297|

Behnke sent a revised draft of the report after midnight to Gilfoyle, Koocher, Anton, Farberman, and Moorehead-Slaughter for comment ahead of the final task force meeting. |1298| Notably, Farberman commented that the report include some kind of disclaimer so the statements are not construed "as APA saying torture or inappropriate treatment has taken place." |1299| The next version of the report (and final report) clarified at the beginning of the report that the task force's changes "did not include an investigative or adjudicatory role, and as a consequence emphasized that it did not render any judgment concerning events that may or may not have occurred in national security related settings." |1300|

D. Day Three: June 26, 2005

The task force met for half the day on Sunday, the final day of meetings. Behnke distributed copies of a third draft version of the report. |1301| Notably, the document added that psychologists do no engage in torture as well as "cruel, inhuman, and degrading treatment," which tracked the U.N. Convention Against Torture that Wessells, Thomas, and Arrigo championed. At some point, Arrigo's notes indicate that Newman commented that if the document had no new ethical principles, then APA governance could approve the report quicker. Newman pronounced that if there were new principles within the document, then it could take up to a year to approve the full document. |1302| The third draft also added a point on how psychologists could prevent behavioral drift ("How the combination of a setting's ambiguity with high stress may facilitate engaging in behaviors that cross the boundaries of competence and ethical propriety."). The remaining draft reports are appended to this report and come from Arrigo's collection of the draft reports. As such, they contain Arrigo's handwritten notes on the draft reports.

Farberman also joined the meeting by conference call to discuss talking points for the report. Farberman told Sidley that it was very common for her join various task forces to discuss these issues. |1303| Arrigo's notes indicate Farberman made comments about not implying that torture occurred at Abu Ghraib or Guantanamo Bay. |1304|

Banks also mentioned that he intended to personally brief the Army Surgeon General on the report's findings. |1305|

By the evening of June 26, Behnke revised the document a fourth time based on the task force's final comments and forwarded to Moorehead-Slaughter to circulate to the group. Behnke, per conversations with Wessells, added a footnote citing to the Geneva Conventions and the U.N. Convention Against Torture. |1306| Each member approved of the final fourth draft version of the report that evening.

Shortly thereafter, Shumate attended a meeting with William Winkenwerder, then-Assistant Secretary of Defense for Health Affairs. Kelly sent an email on June 28 informing Behnke, Mumford, Breckler, and Newman. She noted that Shumate described the "thrust" of the PENS meetings and that Winkenwerder was "pleasantly astounded" that APA tackled the issue and requested a copy of the report. |1307|

E. PENS Report Analysis

The full PENS Report is appended to this report. |1308| The final report contained an overview and introduction to the report, followed by "Twelve Statements Concerning Psychologists' Ethical Obligations in National Security-Related Work and Commentary on the Statements," conclusion and non-consensus issues sections, and 10 recommendations. The report said that psychologists could serve as consultants to national security interrogation consistently with the Ethics Code, and articulated two high-level limitations on that activity, without further significant definition: psychologists could not be involved in torture or cruel, inhuman or degrading treatment, and psychologists attempted to ensure that interrogation methods were safe, legal, ethical and effective. As the evidence shows, these high-level limitiations were intentionally chosen by Behnke because they reflected what Banks wanted and, by extension, reflected what key parts of DoD wanted.

1. Psychologists as "safety officers"

A foundational question that underpins the PENS report, and stressed by Behnke and Banks to us throughout our investigation, is the notion that having psychologists involved in interrogations by observing the interrogators was of critical importance in ensuring the safety of the detainee. A psychologists' training in human behavior, the argument goes made them uniquely situated to watch for and stop "behavioral drift"–the phenomenon identified in Philip Zimbardo famous Stanford prison experiment and elsewhere that those with physical power over others who use that power to cause discomfort or pain to others will often tend to drift toward greater and greater uses of that power unless stopped. Banks, along with Lefever and others who taught at military SERE schools, say that this is a key and legitimate role for psychologists at SERE, since without such a "safety monitor," even SERE instructors pretending to be captors of U.S. soldiers may go too far. In fact, when Air Force SERE were brought to Guantanamo Bay in December 2002 to provide guidance about "employing 'SERE' techniques during detainee interrogations," their Standard Operating Procedure memo used the term "Watch Officer" as a standard position within the SERE procedure (although the memo did not specify that it needed to be a psychologist). |1309|

Psychologists ranging from the APA's leading critics to PENS participants Brandon, Gelles, and Shumate |1310| have expressed doubt that psychologists are uniquely or well situated for this role, especially outside of a SERE training context. For purposes of our discussion here, we assume that having someone monitor interrogators for behavioral drift would be an important part of the interrogation process if the interrogator is intentionally inflicting some form of physical coercion or psychological distress (as in SERE training), and it seems reasonable that the training and experience of psychologists would make them among the best candidates for playing the role of "safety monitor" or "watch officer" by watching the behavior of the interrogators.

However, Banks, Dunivin, Behnke, and others who emphasize this role for psychologists in interrogations and who tend to use it as the primary (and positive-sounding) justification for including psychologists in the interrogation support process |1311| are also quick to say that psychologists should be included in interrogation support because they help make the interrogations "effective." This was one of the four pillars of the Banks/Dunivin "safe, legal, ethical and effective" formula that the PENS report adopted, and the PENS report made it an ethical obligation of psychologists working on interrogations to try to rely on methods that are "effective."

Their theory is therefore that when psychologists are involved in an interrogation of a non-cooperative foreign detainee considered an "unlawful combatant" suspected of knowing important information, in an environment of intense pressure to produce actionable intelligence to protect the American public and in which the protection of the criminal justice system do not apply, psychologists should be playing two roles at the same time - (1) strict monitor of the interrogator, including promptly telling the interrogator (or telling his supervisor or commander to tell him) that he is going too far and needs to stop, and (2) partner of the interrogator in trying to engage in interrogation techniques that will be effective in getting the detainee to be cooperative and to tell the truth about what he knows.

This strikes us either as naive or intentionally disingenuous. The pressures on the psychologist in this situation not to stop the interrogator from becoming more aggressive are very significant, both because of the dynamic that the interrogator and psychologist are working together to make the interrogation effective and likely have a need to work together on an ongoing basis on other interrogations, and because the psychologist likely would be utilizing his subjective judgment in telling the interrogator that he has gone "too far" (a judgment that can easily be subject to criticism and second guessing) rather than an objective judgment based on clear lines drawn by external sources (e.g., DoD or APA guidelines). One would think that mature, confident psychologists primarily committed to the role of "safety monitor" would be able to overcome these pressures in most situations. But this would depend on the individual psychologist, and the context of the individual situation. In other words, it might work or it might not. As an ethics expert pointed out to us, an independent psychologist monitor outside the chain of command would have a better chance at success with this responsibility. |1312|

Just as it makes little sense to say that SERE techniques can be "reverse engineered" for detainee interrogations with little fear of lasting psychological damage because they are used safely in controlled environments on informed, consenting U.S. soldiers, so too does it make little sense to say that a "watch officer" will always be solely motivated to stop an aggressive interrogator because it works successfully in SERE training when there is no actual concern that public safety will actually be compromised if the "interrogators" do not actually get the information from the pretend "detainee." This is especially true when the "watch officer" is also being asked to help make the interrogation as effective as possible.

If Banks and Behnke really believed that the only real reason a psychologist needed to be involved in interrogations was to keep them safe by playing the role of "safety monitor," they could have written the PENS report to limit a psychologist's role in interrogations to this function. The report could have said that psychologists may support interrogations only by playing the role of safety monitor to ensure the safety of the detainee, by watching the interrogator to ensure that behavioral drift does not occur. But as Gelles pointed out, this would mean that a psychologist could not consult in the way psychologists typically do in law enforcement situations, by consulting on interrogations and investigations to make them effective– in environments in which the protections of the criminal justice system apply. And Banks, Dunivin and DoD, and Behnke and APA, did not want to impose such a significant limit on the involvement of psychologists in national security operations. |1313|

2. Need for specificity and limits

We heard from APA defenders during the investigation that they only intended the PENS task force report to allow psychologists to support interrogations by recommending rapport-building techniques, not physical or aggressive ones. But the report does not say this, although it could have. Given the public awareness of the Bush Administration's narrow understanding of key terms like "torture" and "inhumane" and its claim that the Geneva Conventions did not apply, the widespread media reports about abusive interrogation techniques, and the explicit discussions at the PENS meeting and the media about specific techniques like stress positions and sleep deprivation, it was obvious to everyone involved in the PENS task force that national security psychologists would be asked to advise on interrogation techniques that went well beyond rapport-building. The PENS Task Force report could have said that psychologists may support interrogations only by recommending techniques that constitute rapport building. But as with the other limitation, this was not consistent with Banks's and DoD's preferences (and therefore Behnke's and APA's) that the role of psychologists not be limited beyond whatever constraints DoD itself had in place.

Our consternations with the the lack of specifity in the report were solidified through conversations with three prominent academicians with broad experience in issues of ethics, torture, and human rights: (1) Nancy Sherman, Philosophy Professor at Georgetown University and consultant to the U.S. armed forces; |1314| (2) Nora Sveaass, Psychology Professor at the University of Olso and former member of the United Nations' Committee Against Torture; |1315| and (3) Janel Gauthier, President of the International Association of Applied Psychology and primary drafter of the "Universal Declaration of Ethical Principles for Psychologists." |1316| At bottom, all three raised concerns that key terms used in the PENS report–be it, "torture," or "cruel, inhuman, and degrading treatment," or "safe, legal, ethical, and effective"–were not well-defined and left an inordinate amount of flexibility for government entities to dictate what was permissible. |1317|

Sherman thought the report was "peculiarly abstract," and "evasive." |1318| Sveaass stated it was "very sad" and "strange" that a specific definition of torture was not included in the report, particularly since the United States ratified the U.N. Convention Against Torture and that its definition of torture was "absolute." |1319| Gauthier believed that several terms in the report were open to many interpretations and worried about the lack of specific human rights definitions in the document. He believed that the document would have been better served if it plainly defined what "torture" was and what specific techniques were permissible and under what circumstances. |1320|

Both Sveaass and Sherman raised the point that, because of the known institutional pressures and pronouncements at the time of the PENS process regarding interrogation tactics and the lack of legal safeguards for detainees (at least when compared to prisoners in the U.S. criminal justice system), it behooved APA to provide specific guidance to psychologists in these settings to comprehend and combat techniques that were permitted and those that were not. |1321| Sveeass emphasized that the report needed additional context–the state of detention centers at Guantanamo Bay, the lack of legal rights for detainees, the reported abuses, the BSCT teams used in these detainee interrogation settings–in order to better understand the roles and purposes of psychologists in these settings in the first place. Instead, Sveaass asserted, the report included a list of ill-defined things psychologists should not do in national security settings. |1322|

Sherman made the point that torture was not typically an individual-only activity, but usually depended on the "corruption of the system" in which multiple actors, some of whom are high-level, make decisions and take actions that allow it go forward. |1323| The structural taint of government polices was apparent by the time of the PENS report (ex: Rumsfeld Working Group, OLC memos, Abu Ghraib and Guantanamo Bay abuses). In fact, APA regularly discussed media reports about these issues. Thus, APA should have been on high alert that professionals– like psychologists–participating in that system needed specific ethical constraints and guidelines to operate in that system, because such a system was also typically accompanied by intense pressure to conform and to follow orders to engage in abusive activity. These structural pressures are not theoretical. It is the situation that Banks and James argued that John Leso found himself in ahead of the Mohammad al-Qahtani interrogation in 2003. |1324|

Instead, the PENS report banned participation in torture and CID but avoided defining these terms at a moment where precision and explanation were crucial for the psychologists working in these interrogation settings.

Behnke contested the specifcity point with Sidley, noting that "prohibiting specific techniques" was not "initially central to the work of APA, or several other associations, that addressed the issue of member involvement in interrogations." |1325| Behnke went on to cite relevant provisions from the American Medical Association ("AMA"), the American Psychiatric Association ("ApA") and the World Medical Association's ("WMA") Declaration of Tokyo as examples where none of these provisions prohibited specific techniques.

Behnke's assertions belie what happened at PENS and with other organizations, including the military. For one, the background materials provided to each task force member included descriptions of harsh techniques used at the time and the controversy surrounding them (discussed earlier) , so there was an awareness that harsh techniques were occurring in detainee settings. Second, specific techniques were not discussed during PENS because participants like Newman, Banks, Koocher, and Behnke avoided addressing specifics during the PENS meetings. Other DoD members, even if they expressed an interest in having boundaries or limits on what psychologists could do, did not promote the need for specific language in the report. Wessells, Thomas, and Arrigo's quest to add international human rights standards within the PENS report–one way to provide specific guidance for a psychologist–was met with stiff resistance by the military majority. In addition, former Chief of Staff for the Assistant Secretary of Defense for Health Affairs, Thom Kurmel, told Sidley that the "key" debate in 2005 among his DoD colleagues was "how far" health professionals could go in interrogation settings and less what professional associations said about their presence. |1326| So the issue of specific techniques and what was permissible was underscored by media reports, by task force members, and by the military.

Regarding other organizations' positions, a brief look at the AMA, ApA, and WMA positions will explain why specific techniques were not listed. The AMA defined what a coerced interrogation was in its analysis: "threatening or causing harm through physical injury or mental suffering." |1327| The ApA banned its professionals in those settings outright, so there was no need to list prohibited techniques. |1328| And the WMA's Declaration of Tokyo defined torture at the outset of the document:

    For the purpose of this Declaration, torture is defined as the deliberate, systematic or wanton infliction of physical or mental suffering by one or more persons acting alone or on the orders of any authority, to force another person to yield information, to make a confession, or for any other reason. |1329|

Another psychological association, the British Psychological Society, also came out with a statement in February 2005 that condemned the use of torture and cruel, inhuman, and degrading treatment in interrogations. Its definition of torture combined more general terms with examples of specific techniques. |1330|

The PENS report did none of these things. It provided no definition of torture or CID, provided no list of prohibited interrogation techniques, and did not ban psychologists from these settings writ large.

Behnke also claimed that prohibiting specific techniques at the time would have raised concerns that the group may unwittingly exclude a technique and, therefore, provided an explicit loophole for interrogators to exploit. It was not until March 2007, Behnke argued, when he attended an event at the Wright Institute with Professor Alfred McCoy, that he realized that there was a fairly consistent list of techniques that interrogators used consistently and he incorporated this thinking into what ultimately became the 2007 APA Resolution that banned the use of specific techniques. |1331| This assertion, too, is incorrect. Behnke and Banks engaged in a dialogue as early as October 2006 about adding specific techniques as part of a substitute motion in response to Neil Altman's moratorium resolution, discussed further in the next section of this report. What is more, Behnke's worry that a non-listed technique could be used had an easy resolution–to insert language that the list was not exhaustive and that the underlying principle was about not inflicting abuse or harm upon individuals. |1332|

From his perspective, Banks thought it was inappropriate for an ethics-related document like the PENS report to contain guidance on specific techniques used in an interrogation. He told Sidley that he believed a deeper discussion about sleep deprivation, for example–how long it could be used for, what would constitute sleep deprivation, whether late night interrogation settings were permissible–were best reserved for the military in some form in the Army Field Manual or another DoD policy document. He contended that the report established clear boundaries on other issues related to dual roles, the use of medical records, and the limits of confidentiality. |1333|

James also welcomed specific guidance for psychologists, but stated that he did not need the PENS report to provide this guidance for him. James spoke passionately to Sidley about how the key question he asked when consulting on an interrogation was whether he would be comfortable with those techniques being used on his wife or son. At the same time, he thought the document should be aspirational as he believed other ethical guidelines were. He did not want the report to make military interrogations "too restrictive" because the "military guys" were worried that the report's limitations could transfer to psychologists working in non-military interrogation settings and unnecessarily limit what techniques were used. He posited that some critics may argue for a ban on raising one's voice or swearing at a prisoner in any interrogation. James admitted, however, that having an aspirational document with few specifics likely did not answer all the questions psychologists in the field may have had about the ethical duties in specific settings. |1334|

Shumate explained to Sidley that the task force should not have gotten "bogged down" in the "granular" details of the topic at first and, instead, try and understand the "forest" from a "30,000 foot view." Thereafter, Shumate declared, additional steps could be taken to address specifics, but he thought that neither APA or psychologists were in a position to properly address the various legal issues that may arise with interrogation practices. |1335| Mixing metaphors aside, Shumate's explanation makes little sense in the context of providing ethical guidance to psychologists in national security settings and, instead, sounds like a pretextual reason about why the task force report was not more specific.

Implicit in both Banks's, James's, and Shumate's comments is a belief that the DoD was better-positioned to handle the specifics of interrogation techniques. These same beliefs permeated Dunivin's thinking at the beginning of the task force selection process, which Newman espoused during the PENS meetings. Behnke, too, made comments related to avoiding the specifics during the meetings. In the end, the report was general enough that it gave the DoD the flexibility to make more specific calls on what was permissible despite troubling institutional pronouncements on what constituted torture and what protections detainees ought to receive.

A vivid example of how little guidance the PENS report provided was presented during our interviews with Banks and Behnke. Sidley separately posed to both Behnke and Banks whether interrogations involving certain kinds of stress positions would run afoul of the "safe, legal, ethical, and effective" analytical framework or the PENS report in general. Neither could provide a clear answer based on these two sources alone. |1336| Behnke struggled to respond to which types of stress positions, each with varying levels of pain to the detainee, would be considered "safe." His response shifted to the effectiveness point–technically an incorrect approach since a psychologist was supposed to have gone the four terms in order–where he noted that, even if a particular position was safe, it likely was not effective. When asked how he knew that, Behnke believed that studies about interrogations would dictate that rapport-building was the best way to interrogate a detainee. |1337| If this was true and others agreed, then the PENS report could have explicitly mentioned that rapport-building was the best way to handle detainee interrogations–it did not.

Banks explained that, for him, the dividing line of the "safe" prong of the analysis was whether the detainee was put in significant increased risk of harm with a technique. Assuming a particular stress position was safe, Banks conceded that the legality point was also open to interpretation depending on what pronouncements were in effect at the time. In 2003, for example, there was Army Regulation 190-8 that governed military personnel, but there were also pronouncements from the Secretary of Defense that supposedly trumped 190-8 declaring that detainees were not covered under the Geneva Conventions and that certain interrogation methods were permissible. Assuming a stress position technique was also legal, Banks perused the Ethics Code to determine whether the techniques were "ethical" under the third prong. Banks thought that the technique violated the principles of the Ethics Code but not necessarily any of the specific rules. At this point, Bank said he would turn to the PENS report for the answer. When he did, he pointed to statement one of the PENS report and said that this particular kinds of stress position were "degrading" (he speculated placing a detainee in a "push-up" position might be permissible, but not hanging a detainee from a ceiling). When asked how he knew this, Banks admitted that this conclusion was from his experience and viewpoint, not necessarily from a definition in the report. |1338| Banks later stated that the PENS report "was not remotely sufficient" but that it helped establish the training standards in place today for all BSCTs. |1339| This training–Banks noted before that it lasted six weeks–would solidify answers to these and other questions. |1340| Banks's response begs the question–how useful can a report be when you need six additional weeks of training to understand what you can and cannot do?

3. Other report issues: do no harm, medical records, mixing roles, confidentiality, enforceability

There is other questionable language in the report as well:

Introduction: "Do No Harm" omission

Notably, the quoted portion of Principle A: Beneficence and Nonmaleficence in the report excludes the opening sentence involving "do no harm." Instead, the Principle A's second sentence is quoted first: "In their professional actions, psychologists seek to safeguard the welfare and rights of those with whom they interact professionally and other affected persons."

Behnke told us he could not recall why he did not include the "do no harm" sentence but did not think its exclusion had much significance. Our conclusion is that because of the ambivalence within the DoD task force members about how to define "harm" as it relates to physical pain and distress, and the desire by Behnke and Banks not to take a hard-and-fast position that psychologists in interrogation situations can never "do harm" (despite the Ethics Code principle), Behnke intentionally left out the "do no harm" language.

Addressing this issue specifically would have been feasible in a wide variety of ways, for instance by providing a non-exclusive list of prohibited specific techniques, or by describing what was prohibited by using words such as "abuse," "physically coercive," or "intentionally inflicting physical pain or mental suffering other than mental suffering incidental to lawful sanctions." The decision not to do so reflects a desire to keep the PENS report at a high level of generality at Banks's request.

Statement Two: Ethical responsibility to report inappropriate acts

A secondary portion of the the second statement cites to ethics Standard 3.04, Avoiding Harm, to support the claim that psychologists "guard against the names of individual psychologists being disseminated to the public," since it could expose a psychologist. Standard 3.04 cites to minimizing harm to third parties, research participants, and organizational clients, but makes no mention of peers or colleagues. Behnke explained that the issue of safety was top of mind for several participants and that is how this statement took shape. |1341|

Statements Three and Six: Not using medical information to detainee's deteriment and multiple relationships

Critics have argued that Statement Three contains a loophole: while the rule states that psychologists in interrogation support roles cannot use an individual's medical record "to the detriment of the individual's safety and well-being," it does not explicitly bar access to medical records or explicitly bar other ways the records could be used, such as for creating an interrogation strategy. |1342| Banks, and to a lesser extent James, pushed to include this carve out language so that a psychologist would have the necessary insight to determine whether a legitimate interrogation technique (such as providing a cooperative detainee with a candy bar) might cause health problems (by seeing that the detainee was diabetic, for instance). Because of these requrests, the PENS report allowed this access.

Behnke admitted that some people could have circumvented the statement's restrictions. |1343| Statement Six, in theory, may provide a stop gap when it demands psychologists refrain from "mixing potentially inconsistent roles such as health care provider and consultant to an interrogation." |1344| Yet a later correspondence in October 2006 between Banks and Behnke casts doubt upon whether these two rules were ever envisioned to work together in this way.

In the October 2006 correspondence, BSCT Carrie Kennedy informed Behnke that BSCTs were "upset" after being excluded from a Command meeting that discussed medical and mental health information on detainees. |1345| Behnke immediately informed Kennedy and Banks that sitting in on these meetings and receiving this information would violate the PENS report's Statement Six. Kennedy responded that BSCTs could argue that sitting in on meetings was permitted under PENS report Statement three since no BSCT would use the medical information against the detainee. |1346| After underscoring to Kennedy the "absolute demarcation" between these two roles and the "GREAT stir" if it was publically known that BSCTs were present in such meetings, Behnke forwarded the exchange to Banks and noted that this mindset would confirm the critique of BSCT teams:

    People like Neil Lewis, Bloche, and Marks would claim that this proves their point: These roles are inevitably commingled. They would argue 1) If psychologist/consultants aren't going to use the information, why do they need to be present when the information is discussed? 2) Once the information is in their heads, is it realistic to expect that they won't use it, even if inadvertently? 3) If the purpose of communicating information is to keep the interrogation safe, can't the medical people simply communicate behavioral restrictions to the interrogators? 4) The psychologist/consultant's presence in the room inevitably blurs the distinction between the two roles, and that "blurring" will likely be felt in other parts of the interrogation process and/or with interrogation personnel. |1347|

Banks's response to Behnke is telling: "We worded the [PENS] report so that this would not be precluded. . . . I have access to information that I can misuse all the time, why is this different?" Banks thought it might make sense to separate the BSCTs because of the "PR risk," but not because he thought the PENS report prevented this blurring of relationships to occur. |1348| Behnke and the APA's position on this issue therefore fit the pattern we saw in this investigation regarding PENS–positions were taken to please DoD based on confidential behind-the-scenes discussion and an eye toward PR strategy.

Notably, one way to avoid having these multiple relationships would be if BSCTs were somehow stripped of their clinical privileges while deployed. In fact, this very possibility was discussed within the Army Surgeon General's office ahead of finalizing their BSCT MEDCOM policy in 2006. |1349| The PENS report, however, nipped that possibility in the bud, and retained much of what BSCTs were already doing without adding obstacles to their deployments. It is possible that Banks or Dunivin, the leaders in drafting the 2006 MEDCOM policy, were aware of these discussions and sought to forestall this issue with a positive outcome in PENS that did not permit this option.

Statements Three and Nine: medical records and the limits of confidentiality

Another possible loophole with Statement Three is its relationship with Statement Nine regarding the limits of confidentiality. While Statement Three does not permit the use of an individual's medical record to their detriment, Statement Nine reminds psychologists that there are limits to confidentiality and the "minimum amount of information necessary" can be shared with someone who has a "clear professional purpose of obtaining the information." The report does not explain what a "clear professional purpose" may be, but a June 2005 memorandum regarding the medical treatment of detainees from William Winkenwerder, then-Assistant Secretary of Defense for Health Affairs provides several "permissible purposes" of confidential information: "to prevent harm to any person, to maintain public health and order in detention facilities, and any lawful law enforcement, intelligence, or national security related activity." |1350| Several of these permissible purposes could ultimately harm the detainee's well-being, contrary to Statement Three.

Statement Four: Barring violations of U.S. law

This statement may raise another loophole with its language that psychologists "do not engage in behaviors that violate the laws of the United States." At the time, narrower definitions of torture prevailed through pronouncements from the OLC. The head of the OLC at the time of PENS, Steven Bradbury, had written a series of memos in May 2005 to the CIA permitting the continued use of waterboarding and other harsh techniques. |1351| Thus, psychologists could arguably participate in waterboarding sessions since they did not violate the way the law was interpreted at the time.

Both Behnke and Banks contended that the statement referred to all U.S. civil and criminal laws as well. So while slapping or waterboarding may have been permitted under certain OLC pronouncements at the time, it would violate assault provisions in the U.S. Code, the Uniform Code of Military Justice, or Army Regulation 190-8. |1352| The report does not make this point immediately obvious, however.

The statement also makes reference to, at Wessells's behest, the Geneva Convention Relative to the Treatment of Prisoners of War and the U.N. Convention Against Torture. But as discussed earlier, these provisions are not made binding on psychologists in these detainee settings.

Enforceability of the document

There is also confusion within APA about the enforceability of the PENS report–that is, could a psychologist have been brought on ethics charges if they violated one of the twelve statements in the report? Behnke told Sidley that he saw the statements in PENS as independently enforceable ethical obligations on which a disciplinary case could be brought. |1353| On the other hand, Gilfoyle told Sidley that a complaint would still need to specifically cite the ethical standard and not the PENS report alone. |1354| We found it very notable that, 10 years after PENS, the APA Ethics Director had a view about the legal enforceability of PENS that was at odds with the view of the APA General Counsel.

Research

The PENS Task Report contained several recommendations that further research be conducted in this area. This include a paragraph "encourag[ing] . . . further research to . . . examine the efficacy and effectiveness of information-gathering techniques, with an emphasis on the quality of information obtained. . . . Also valuable will be research on cultural differences in the psychological impact of particular information-gathering methods and what constitutes cruel, inhuman, or degrading treatment." A subsequent section recommended that APA encourage psychologists to engage in research into "methods for gathering information that is accurate, relevant, and reliable. Such research should be designed to minimize risks to research participants such as emotional distress, and should be consistent with standards of human subject research protection and the APA Ethics Code." The evidence shows that Mumford, Brandon, Newman, and Gravitz made drafting suggestions regarding the research recommendations, and at least some of Brandon's drafting suggestions made it into the final version.

Critics have pointed to some of this language as an indication that APA was intentionally attempting to provide ethical support for research by the CIA or DoD on detainees at Guantanamo or elsewhere, or was otherwise attempting to allow for research that involved harsh interrogation techniques without the proper human-subject-research protections.

We found this a topic on which it was difficult to draw clear conclusions, and our discussion and analysis of the evidence is discussed earlier in our summary of the second day of PENS meetings above.

4. Positive aspects of the report

Application of Ethics Code

At the July 2004 meeting at APA with CIA, DoD and FBI psychologists that was the precursor to the PENS meetings, CIA psychologist argued that the APA Ethics Code should not apply to work by psychologist in national security operations, such as interrogations, because a code written for the ethical treatment of patients was not a good fit for this different situation. |1355| The PENS report explicitly rejected this argument and noted in its introduction that the Ethics Code binds psychologists whenever they take actions as a psychologist and therefore applies to work on national security interrogations. The report also made it clear in one of its 12 ethical guidelines that the Ethics Code provision prohibiting "multiple relationships" meant it was unethical for a psychologist to both consult on a detainee's interrogation on behalf of the government and be the detainee's health care provider.

These were positive points in the PENS report, and the first one constituted a refusal to go along with a position previously advanced by the APA's lead contact at the CIA (although the CIA appeared be effectively absent at the PENS task force, with the likely exception of Melvin Gravitz). On the other hand, Behnke described these as clear and easy points to make, and we note that DoD officials were not opposed to them.

Ethical obligation to detainee

Statement Eleven in the PENS report says that psychologists have "ethical obligations to individuals" who are not their clients, including "to ensure that their activities in relation to the individual are safe, legal, and ethical." In making this statement, the PENS report cites Ethics Code standard 3.04 ("Avoiding Harm"), which says that "[p]sychologists take reasonable steps to avoid harming . . . others with whom they work, and to minimize harm where it is foreseeable and unavoidable." The PENS report statement does not specifically mention interrogations, but it implies that psychologists consulting on interrogations have an obligation to follow standard 3.04 with regard to detainees. It does not seem a given that detainees would be considered "others with whom [psychologists] work," so this statement can be seen as a significant one.

However, if physical pain and psychological distress do not automatically equate to "harm," as discussions with the DoD psychologists indicate, then the failure to provide any specificity about how to determine whether interrogation techniques that intentionally cause pain or distress constitute harm means that standard 3.04 may not provide substantial protection. For instance, Banks's view was that some stress positions were "safe" and therefore might be properly used as interrogation techniques. (He cited the "push up" stress position to us as an example.) Similar, the PENS report refused to take a position on sleep deprivation despite being asked to do so. In addition, section 3.04 does not prohibit harm–it simply requires psychologists to take "reasonable steps" to "avoid harming" the individual.

5. Need for robust ethics analysis

The fact that a robust ethics analysis was not part of this ethics process led by the Ethics Director was surprising to us but is consistent with two additional observations revealed by our investigation.

First, Ethics Director Behnke often acted as APA's chief of staff on this issue, taking the lead in recommending and drafting virtually all APA decisions and statements on this issue, whether relating to Board strategy, PR, Capitol Hill lobbying, and APA Council of Representatives management and strategy, among others. As we have learned in this investigation, Behnke is a brilliant and highly educated psychologist and lawyer, a nice and charming person, a highly gifted and fast writer, and a very sophisticated and nuanced strategist and communicator. Whatever organizational or personality dynamic led to APA allowing him to play this remarkably expansive role, well beyond the expected duties of APA Ethics Director, the result was a highly permissive APA ethics policy based on strategy and PR, not ethics analysis.

Second, APA leaders had decided in the 1990s (before Behnke's arrival at APA in 2000) that APA's ethics policies and practices had been too aggressive against psychologists, and that a more supportive and protective and less antagonistic ethics program was appropriate. They wanted a greater focus on ethics education and consultation, and much less of an emphasis on strict rules and robust enforcement of disciplinary complaints. Revisions to the Ethics Code focused in part on making its rules more precise to ensure that psychologists had proper notice about what behavior was considered unethical, and to minimize APA's litigation risk from lawsuits by sanctioned psychologists. A provision about how to handle conflicts between legal and ethical obligations was expanded so that psychologists could follow court orders or military orders requiring them to engage in conduct otherwise prohibited by the Ethics Code as long as they attempted to resolve the conflict first. Behnke was hired specifically to pursue an ethics program that was more "educative" and fulfilled these goals. During his tenure, APA disciplinary adjudications plummeted, and the focus was on supporting psychologists, not getting them in trouble–a strategy consistent with an ultimate mission of growing psychology. |1356|

Thus, when the time became ripe to consider what ethical constraints to put on an important group of psychologists, two factors that could conceivably have created internal pressure in APA for those ethical constraints to be strong–an Ethics Director focused exclusively on ethics analysis and perhaps guided by inquiry into systems in which torture occurred and issues of psychological distress by those in captivity, and an ethics approach that had a robust focus on the integrity of the profession and the protection of the public–were not present.


IV. REPORT APPROVAL

The unusual speed |1357| and Board approval of the PENS report was motivated principally by the desire of APA Board members Levant and Koocher to (1) create a PR message that would be perceived as backed not just by a public statement but by actual substance (a new APA ethics policy) and that could be used to a fluid PR situation perceived as negative, and (2) curry favor with DoD which communicated that it too wanted a prompt release of the report so it could use the report for its own purposes (which were both PR and policy purposes). |1358|

A. Internal discussions and military pressures

Before the PENS meetings, on June 14, Behnke mentioned that Moorehead-Slaughter would "very much like the Task Force to complete a report during the course of the meeting, or very shortly there after, setting forth whatever positions the Task Force feels prepared to take at that point." |1359| Behnke continued to highlight the great interest in the issue from the government and the media:

    Given the interest that the US Government has shown in APA's analysis of these questions, and recent media reports, we will need to consider to what extent any Task Force product will be made available to groups outside of APA. |1360|

As mentioned before, the New York Times had run an article on Friday, June 24, the first day of the Task Force meeting, reporting that "[m]ilitary doctors at Guantanamo have aided interrogators in conducting and refining coercive interrogations of detainees, including providing advice about how to increase stress levels and exploit fears." |1361| The article quoted both Behnke and the ethics committee chairman of the American Psychiatric Association and compared the positions of the two organizations:

    While the American Psychiatric Association has guidelines that specifically prohibit the kinds of behaviors described by the former interrogators for their members who are medical doctors, the rules for psychologists are less clear. . . . [I]n a statement issued in December, the American Psychological Association said the issue of involvement of its members in 'national security endeavors' was new. |1362|

APA President Levant later worried that the article made APA look bad because it "portrayed APA as unsure of where the ethical boundaries lie." |1363| To Levant and Koocher, managing APA's image required it to show that the task force report was more than simply a set of high-level, "loose" statements that might be justified as a tentative "initial step" as part of a more thorough, long-term examination of the issue, but was instead a clear and "strict" statement of the actual ethical boundaries, as discussed further below. The fact that the PENS report was nothing of the sort did not stand in the way of the their strategic attempt to create the best possible media response.

By the evening of June 26, the task force members approved a final draft version of the report. Anton then emailed the Board informing them that they would receive the report for their review and approval. |1364| Thereafter, a debate began within APA about what next steps were needed to publicize the report.

Gilfoyle first responded to Anton (and included Behnke, Newman, Breckler, and Farberman) and flagged the issue of having the Ethics Committee review the report before it went to the Board for approval, regardless of whether the document was viewed as interpretative of the existing Ethics Code or as new guidelines. |1365| She also added that in either case, "some degree of public comment would also be in keeping with the way APA has gone about adopting standards." |1366|

Behnke responded that the Board could also make the report public "asap" without formally adopting it, and noted that the "military people are asking for the report soon–Morgan has a meeting with the Surgeon General on Wednesday." |1367| In addition to Banks, James told Sidley that he implored Behnke, Koocher, and Levant to expedite the review process for the report since there were captains in the "field right now that were getting their asses kicked and needed guidance." |1368| He believed a normal review process could have taken many years to finalize the report. Koocher also told Sidley that press reports added to the pressure of releasing the report soon. |1369| He also believed that Division 19 (Military Psychology) members wanted the report issued as soon as possible. |1370|

Gilfoyle later suggested that the Board could conditionally approve the report subject to Ethics Committee review and comment. "If you want to say clear of public comment," Gilfoyle continued, "we definitely want to stay away from calling anything the [B]oard does guidelines." |1371| She intimated that the group had more "latitude" if the report was thought of as interpretative guidelines where public comment was not formally required. Behnke later reiterated the "eagerness" among the military to have the report quickly made public, especially with the pending publication of a New Yorker story. |1372|

Newman believed the document was interpretative and that he "would be reluctant to put this out widely for public comment," but that the Ethics Committee should review the document. He later inquired whether the Ethics Committee review could be "expedited." |1373| Farberman raised the concern of "piss[ing] off" the Ethics Committee by publically releasing the document before they fully reviewed it. |1374| She offered an alternative plan where the Ethics Committee would quickly review and approve of the full report before it was released to Council and the media. Ultimately, the group decided to seek the Ethics Committee's approval of the report as appropriate interpretative standards over a conference call and then immediately send to the Board for approval and make the report public. |1375|

B. Ethics Committee and Task Force Re-Approval

On June 27, 2005, Behnke sent APA Ethics Committee an email about reviewing the final draft of the PENS report to determine "whether the twelve bolded statements are appropriate interpretations and applications of the Code." |1376| The Board was sent a final draft copy at this time for their review as well. |1377| A conference call was held on June 29, 2005 with the Ethics Committee. Sidley was unable to locate any notes from this meeting and relevant interviewees did not recall the substance of this conference call. |1378| Behnke informed Levant, Koocher, and Anton that the committee had "unanimously passed" the motion that the PENS report included appropriate interpretations and applications of APA Ethics Code. |1379| After this conference call, Behnke drafted Moorehead-Slaughter another email, which she then sent to the PENS listserv, that identified the minor changes in the report. |1380| The most substantive change was that the Committee recommended that statement three in the report (medical records) add the language "from the individual's medical record." Notably, Behnke sent the draft report to Banks for review after the Ethics Committee had provided their changes. |1381| Banks told Behnke he approved of the changes and mentioned that he met with the "[Army] Surgeon General, and he will bein front of the Senate soon, on this issue. (He is very supportive.) Having APA's support will mean a lot." |1382| Behnke explained to Sidley that he sent the document to Banks because there were no military people on the Ethics Committee and, as he had on other occasions, he wanted Banks to review the changes to ensure he Behnke was made aware of any unknown issues to him and the Ethics Committee. Behnke did not recall whether he sent the draft to anyone else besides Banks. |1383| Sidley did not locate an instance where Behnke sent a draft version of the report ex parte to another task force member.

The PENS task force members approved a revised fifth draft version of the report by June 30, 2005. Behnke sent an update to Levant and suggested that it would be "more efficient and less cumbersome" if the Board made the report public with the "weight of the Ethics Committee behind it," as opposed to adopting/endorsing/accepting the report. |1384|

Kelly emailed Behnke, Farberman, Mumford, Breckler, and Gilfoyle separately to inform them that Secretary of Defense Donald Rumsfeld's "exec assistant will apparently waiting by the fax for this! His super secret direct access fax line. They're just a tad interested." |1385| Gilfoyle cautioned Kelly that it made her "very nervous that Rumsfeld's office is eager for this," and that it would be a "nightmare" if the DoD relied on the report to conclude that abuses did not take place at Guantanamo Bay or Abu Ghraib. |1386| Farberman agreed and stated that APA's response to questions about psychologist or psychiatrists abuses in both settings is that "we don't know because we don't know the facts . . .the report [makes] clear statements about which activities would be ethical and which would not." |1387|

C. Board takes emergency action

On June 30, Behnke emailed Koocher and Anton to remind them that a pertinent New Yorker article was forthcoming, likely by July 4, and that the task force could not convene again before then, based on what the Board's actions were. |1388| Farberman underscored Behnke's worry about the New Yorker article and APA's need for a "strong position":

    While I recognize that the Board has a critical role in this process and will need the time it needs to respond I also feel I have to let you know that I'm worried that if this New Yorker article does hit the streets on Monday will we (sic) be facing lots of questions about the ethics of psychologists working in national security interrogations on Tuesday. My hope is that we will have the report fully approved by that juncture – with it we have very strong talking points. Without it we're not in as strong a position. |1389|

Behnke told Sidley that he was not sure how he was made aware of Jane Mayer's New Yorker article, "The Experiment," which was ultimately released on July 11, |1390| but speculated that Banks or Gelles may have provided him details. |1391| A final draft of the PENS report in Behnke's files contains his handwritten notes with several mentions to the New Yorker article. |1392| The notes include comments like "New Yorker," "Jim Mitchell," "SERE," and "Church Documents," all of which are mentioned and discussed in Mayer's article from July 11. The notes also include the names "Ali Soufan" and "Bob McFadden," an FBI agent and NCIS officer, respectively, who oversaw other interrogations but were not discussed in the Mayer article. |1393| Behnke was unsure when he took these notes. |1394|

Later on June 30, Anton was made aware of the Board draft resolution options, including one that contemplated the Board "adopting the report as policy," and emailed Behnke with a "concern": "I'm not sure it can go out as policy without [Council of Representatives] approval. The [Board] can certainly accept the report." |1395| It is likely that the plan to declare an "emergency" was in response to Anton's concern that the Board could not normally adopt something as APA policy, since this was the Council's function. But under APA's Bylaws, the Board could take emergency action and adopt policy in Council's stead. |1396|

On the morning of July 1, 2005, Levant asked the Board over email to take emergency action to either approve of the report and review its recommendations at its August 2005 meeting (what he called "option 1") or to adopt the report as APA policy and review its recommendations thereafter (what he called "option 2"). |1397| Levant's email declared that psychology was being "well trashed in the media" and that "situations like this are the very reason to have a Board that acts as Executive Committee of Council, to act in timely manner to pressing events." |1398|

The Board approved of the report over email the same day with every board member who offered an opinion choosing Levant's second option of adopting the report. |1399| There was no documented conference call or meeting to discuss the emergency vote. It appears that the entire vote was conducted over email on July 1. Behnke separately emailed Koocher to inform him that there may be "some confusion" about the two options Levant laid out in his email. |1400| In particular, Behnke noted that Levant's second option "commits the Board to endorsing the Report. While I believe the Report is very strong and represents APA very well . . . only a very limited number of people have seen it." Behnke added that if the report received "negative reaction," then "option 2 would have inextricably tied the Board to the Report." |1401| Internal APA emails do not indicate this issue was discussed with other Board members at the time. Levant stated in his interview with Sidley that it would have been "wimpy" for the Board to approve his first option since it only expressed hope that the report would be approved. |1402|

Some board members offered brief thoughts over email in their vote. Ruth Ullman Paige, the night before the vote, praised the reports "ethics focus versus a political focused" and suggested that a vote be held over email because of "time urgency." |1403| Sandra Shullman stated that a "timely and immediate response, all other things being equal, is in the best interest of APA." |1404| Thomas DeMaio stated that he "wish[ed] we could wait for Council, but we probably do need to move forward quickly." |1405| Behnke stated at the end of the day on July 1 that "the Board has endorsed. The Report will be released." |1406| None of Sidley's interviews with Board members at this time yielded additional information about any further discussions during this emergency vote beyond what was found over email.

At one point before the emergency vote, Board Member and 2004 APA President Diane Halpern ("Halpern") had a "very strong recommendation" of adding a note or data point about how "torture is ineffective in obtaining good information." |1407| Halpern's comment was met with opposition by several within APA leadership. Koocher responded to Halpern by declaring the point "goes beyond the mission/mandate of the task force and makes a claim not in evidence." |1408| Gilfoyle began a separate conversation with Behnke and Farberman about this issue and how "linking our condemnation of torture in any way with the fact that it is ineffective should be avoided at all costs. . . . I guess you could say [Halpern's point] but is that true? And I guess more to your point, do you want to start down the path of line edits." |1409| Farberman agreed and hoped that Halpern's suggestion was "dead in the water." |1410| Behnke separately emailed Koocher and Anton about Halpern's recommendation and again showed that his primary goal was to stay completely aligned with DoD. After citing to Statement Ten of the report on effectiveness, Behnke concluded, "which means that if a technique or method is not effective, PSYCHOLOGISTS SHOULD NOT BE DOING IT." |1411| Behnke then stated he was "concerned about making an absolute empirical statements," especially since the task force "may not have felt entirely comfortable" making such a "clear, blanket, statement." |1412| In other words, because at least some of the DoD members were not ready to agree that torture was effective (e.g., Lefever told the group that his experience with SERE was that waterboarding was often effective at gettingU.S. soldiers in the program to reveal accurate information that was supposed to be secret), |1413| Behnke wanted to block this Board member's suggestion.

Anton later emailed Halpern to note that statements eight and ten in the report "embraces your point entirely." |1414| Halpern responded that those were "[g]ood points" and stated that "the only deterrent [to using torture] is that it doesn't work and that there are data on this." Behnke sent a response to Halpern after Anton and noted that her comments captured "many of the attitudes toward coercion that I've gleaned from individuals working in this area." Behnke then strongly stated the ineffectiveness of "coercion":

    Your message captures many of the attitudes toward coercion that I've gleaned from individuals working in this area: It doesn't work. It's counterproductive. It generates bad information. It besmirches our reputation. It puts our soldiers who are captured at greater risk.

    I have not done a thorough enough review of the literature to know how and where the data come down, and my sense is that relevant data may be classified. But I am looking, and will let you know what I am finding. |1415|

    Halpern did not pursue the issue further after Anton's and Behnke's responses. |1416|

Ultimately, Council and the PENS Task Force members received an embargoed copy of the report on July 4. The report was then released to other groups on July 5–first to the Division and State listservs and APA staff at 9 a.m. ET, then to government and military contacts at 10 a.m. ET, and finally to the media at 11 a.m. ET. |1417|

Sidley received varying insights from Board members and APA leadership about the use of the emergency action. Levant believed taking emergency action was "not extremely unusual;" though he admitted it was more unusual to adopt a report or policy email. |1418| Levant explained that he considered passing the report an emergency since he was sensitive to psychology's public reputation and felt a great deal of urgency in responding to negative press. |1419| Gilfoyle also believed that responding to the media onslaught was an appropriate reason to exercise emergency powers. |1420|

On the other hand, Honaker told Sidley that taking emergency action was very unusual and that it was advisable for the Board to wait since the next Council meeting was set to take place in August. |1421| Judy Strassburger Fox, a forty-year APA employee until her retirement as the Executive Director of Governance Affairs in 2009, commented to Sidley that she only ever recalled emergency Board actions being taken to appoint high-level Board positions and not for adopting a report. |1422| Anton remarked to Sidley that this was the only time he had seen in his seventeen years of APA governance emergency action used to set APA policy. |1423| Koocher professed that other than emergency actions relating to financial situations requiring immediate action (such as a refinancing situation), or one situation 20 years earlier when immediate action was required to avoid a negative government regulatory action, he did not believe the Board had ever declared an emergency in order to take a specific action. |1424|

Board member Sandra Shullman also provided additional context to Sidley. She said that while it was unusual for the Board to take emergency action in general, it was less so in the context of that year's board. That Board had previously taken emergency action in early 2005 on assisting efforts related to the Southeast Asian tsunami, and so APA was in "an environment where [the Board] acted swiftly." |1425| Shullman thought there were two reasons the Board took quicker action with the PENS report: (1) the "awful things happening in front of our eyes on TV" that were "devastating" to APA's principles, and (2) psychologists' concerns about their roles where they could not publicize their concerns. |1426|

These diverse opinions on the emergency action, however, illustrate that APA did not have a clear policy on what constituted an appropriate emergency action. Even more troubling, the entire vote was conducted over email without any real substantive discussions about the statements made in the PENS Report.

Further, the manner in which the emergency vote was taken may also raise concerns under Washington, D.C. non-profit law. D.C. law permits a Board of Directors to take action without a formal meeting "if each director signs a consent in the form of a record describing the action to be taken and delivers it to the nonprofit corporation." |1427| This unanimous consent requirement, however, may not have been met during the emergency vote. We have not located any email record of Board member Jessica Henderson Daniel's vote on Levant's proposal. APA does have not record of this emergency vote either. Without this unanimous consent, then, the entire emergency action would be invalid. It will be important for APA, Daniel, and others to redouble their efforts to confirm that Daniel's formal vote was given on the emergency action. Other corporate legal issues may arise as well, which fall beyond the scope of this review– namely, whether only two voting options (which excluded any option to reject the report) and an email vote without any attached consent form or formal gathering of signatures were valid actions under Washington, D.C. law.


V. PENS INITIAL AFTERMATH AND RELATED ISSUES

A. Immediate Aftermath: July 2005–September 2005

1. Banks-Behnke exchange on answering psychological distress

APA's initial press release about the PENS report summarized the findings of the report and made clear that psychologists could "serve in consultative roles to interrogation- or information-gathering processes for national security-related purposes." |1428| The statement, as a whole, was exactly the message that was pleasing to DoD.

The day before this press release, Behnke and Banks continued an exchange about communications efforts surrounding the PENS report. |1429| Behnke outlined two key questions he thought APA would receive about the report: "What roles or functions may psychologists ethically take in assisting interrogations, and is it permissible for psychologists to suggest or recommend techniques that would cause psychological duress." |1430| Behnke told Banks that he would also like to offer an example to elucidate these questions to questioners. Banks responded that Behnke's questions were the "real issue":

    What is the level of psychological distress that moves it into abuse . . . ? This is the one that will foster the greatest legitimate controversy. Some will feel that any psychological distress is too much for psychologist involvement, regardless of the purpose. Obviously, I disagree, but it is a legitimate view point. |1431|

Behnke thanked Banks for his thoughts and that he would need to think further about "how best to package some of these ideas." |1432| Behnke then commented on the "distress" point and the media issues with commenting on it:

    I'll need to think more about what you (no doubt correctly) identify as the key issue, that of distress. The reality, if one thinks about it, is that psychologists cause distress ALL the time, for treatment and non treatment reasons, at times to benefit an individual, at times not. (The ethical standards on research clearly allow some degree of psychological distress in conducting research, which is rarely to the research subject's benefit.) The challenge is to convey that idea to the media in a manner that does not convey "anything goes." |1433|

This key question was not addressed in the PENS report, despite two of the most influential participants' understanding its importance. As noted earlier, the draft language that referenced "psychological distress" was removed, as was a serious discussion about what kinds of interrogation techniques may be unethical. This exchange adds further support to the idea that Banks, Behnke, and others wanted to avoid addressing thornier issues in the PENS report itself and instead defer to existing DoD policies and practices at the time.

2. Another Neil Lewis article, overstating the utility of the PENS report

What is more, this omission of specifics was immediately at issue in an exchange with Neil Lewis who planned to write an article about the report. After Behnke sent him a link to the task force report on July 5, Lewis emailed Behnke with questions about the report. He inquired about several issues, including his confusion over whether a psychologist could "advise but cannot advise as to increasing duress or distress? [Q]uite unclear. [C]an they advise about increasing stress or duress as long as it is not coming from medical records? " |1434| Lewis also asked whether it was permissible for a psychologist to take part in an interrogation that played on a "detainee's fear of darkness or longing for a family member." Behnke forwarded Lewis's message to Banks and noted that Lewis had "put his finger right on one of the central issues, as I imagined he would." |1435|

Banks offered Behnke his thoughts to Lewis's questions later on July 5. He stated that medical records cannot be used against a detainee and that there was a "separation between interrogation and medical care." |1436| Banks conceded that the report did not bar a psychologist from assisting in "causing some level of distress, as long as it does not rise to the level of cruel, inhuman, or degrading treatment." He believed that "most of us would agree that" exploiting someone's phobia would violate this principle but that discussions about family would not. Behnke thanked Banks for the response and added that he could quote language from the U.N. Convention Against Torture that also made it clear that mental suffering that was "severe" is forbidden. Banks cautioned that citing to this language in the Convention Against Torture might be interpreted as "we will do everything up to, but not including, severe mental suffering. I think that the standard is much more humane than that." |1437| Behnke and Lewis appeared to have spoken on the phone about Lewis's question later in the afternoon on July 5.

By the evening of July 5, Lewis's article was posted to the New York Times website and was circulated across several APA listservs. Lewis criticized the PENS report, noting that it appeared "to avoid explicit answers to questions as to whether psychologists may advise interrogators on how to increase stress on detainees to make them more cooperative if the advice is not based on medical files but only on observation of the detainees." |1438| Lewis also cited the fear of darkness example that he posited to Behnke. Behnke began drafting a response to Lewis's article later that night and ultimately collaborated with Farberman to draft a statement that Levant could send as a Letter to the Editor to the New York Times. |1439| Behnke also sent the letter for Banks's approval, |1440| to which Banks responded that Behnke was "doing great stuff for psychology." |1441| The letter was published on July 7 and claimed that the PENS report included "strict ethical boundaries" for psychologists and refuted the use of phobias in interrogations, adopting Banks's conclusion on the issue:

    In focusing on perceived shortcomings of an American Psychological Association Task Force report, (Psychologists See Ethics Risks at Guantanamo, July 6), Neil Lewis failed to report on the strict ethical boundaries the APA sets forth when its members are involved in national security activities, and thus overlooked a critical point: Professional codes of ethics are more than simple laundry lists. Lewis' example–using a phobia to inflict severe psychological distress–is clearly prohibited by the Task Force report. The report makes clear that psychologists never: engage in, direct, support, or facilitate torture or cruel, inhuman, or degrading treatment; use information from a medical record to the detriment of an individual's safety and well-being; mix treatment and consultant roles. Psychologists have an ethical obligation to report such behaviors and are bound by the APA Ethics Code in all their professional activities, regardless of whether they identify themselves as "behavioral scientists" or some other term. |1442|

Behnke and Banks messaged privately once again on July 7, the same day as the London bus bombings. Behnke queried whether anyone would question the ethical nature of psychologists consulting on a police interrogation of a bombing suspect, even if "questioning became stressful." |1443| Banks responded that the "use of force . . . is directly related to the perceived importance of the threat," so if a group believed that there was a "real risk of harm," the stress question is often "moot." Banks found this troublesome and stated that it was of "critical importance" to provide "clear guidance of the behavior of us all. . . . [W[hat you and the [task force] accomplished is far reaching." |1444| Behnke responded that he felt "privileged" to have worked with Banks on this matter. |1445|

The Lewis article exchanges illuminate several points. First, one day after the PENS report was released, the public's call for specificity was apparent. Second, the PENS Report, contrary to the Letter to the Editor statement, was not a document that provided "strict ethical guidelines." |1446| The statement contradicted the belief among task force members that the report was an "initial step," especially the non-DoD members, who only signed off on the report believing more steps were needed. It is inaccurate to call an "initial step" in a process a product that provided "strict ethical guidelines" to psychologists in these settings. Though Banks believed that using phobias would rise to the level of "cruel, inhuman, and degrading treatment," the report does not make clear that this is the case. In private conversations before and after the Lewis article, Banks and Behnke recognized the ambiguity in the level of psychological distress permitted. A statement about "strict ethical guidelines," then, was misleading. Banks also noted the need for clear guidance, but it appears he did not wish that guidance to come from the PENS report.

Third, APA's media strategy shifted and was clear from this point on: emphasize that PENS said that psychologists could not engage in torture or cruel, inhuman or degrading treatment and claim PENS as a strong, pro-human-rights document. The principal purpose of PENS–to state that psychologists could in fact engage in interrogations consistent with the Ethics Code–was relegated to the sidelines, since any message seen as pro-DoD or permissive regarding the involvement of psychologists in interrogations was deemed bad media strategy in light of the intense and quick criticism of PENS. And of course, the principal motivation for Behnke and other APA officials in drafting PENS the way they did–pleasing DoD–remained fully concealed. These were misleading public statements and this was a disingenuous media strategy. A document that was intentionally very limited, non-specific, and evasive on the key issue in order to, principally, please DoD, was now described principally as a strong anti-torture and pro-human-rights document

For example, in response to an August 2005 Lancet article, APA wrote the following response that refuted the article's central claims:

    [P]sychologists are always bound by the ethical responsibilities set forth in the APA ethics code–regardless of the work setting and regardless of whether they are referred to as psychologists, behavioral consultants or scientists, or some other term. Our code of ethics always applies - no exceptions, including in settings outside traditional therapeutic contexts. . . . The APA Task Force report states explicitly that psychologists have an ethical obligation to report evidence of torture and other cruel, inhuman, or degrading treatment to appropriate authorities, and that it is unethical for psychologists to use information from a medical file to the detriment of an individual's safety and well-being. |1447|

In addition, APA sent a letter to Senator John McCain in support of his amendment to ban torture or cruel, inhuman, and degrading treatment on detainees (more about the McCain Amendment is discussed later in the report):

    Our APA ethics code requires psychologists to respect the dignity and worth of all individuals and to strive for the preservation and protection of fundamental human rights. . . . More recently, in June of 2005, the Council reaffirmed [APA's 1986 Resolution Against Torture] and endorsed the [PENS report], again stating that psychologists do not engage in, direct, support, facilitate or offer training in torture or other cruel, inhuman, or degrading treatment. In fact, the Task Force report further directed that psychologists have an ethical obligation to be alert to and report any acts of torture or cruel or inhuman treatment to appropriate authorities. |1448|

Also, in anticipation of a November 2005 Washington Post story regarding the various professional organizations' positions on interrogation settings, Behnke and Farberman drafted a letter for Levant that touted APA's strong stances against torture:

    First, I want to emphasize that for over twenty years the American Psychological Association's position on this issue has been clear and unwavering: It is unethical for a psychologist to participate in torture or other cruel, inhuman, or degrading treatment, under any circumstances, at any time, for any reason. There are no exceptions. A state or threat of war, a national emergency, or a law, regulation or order can never justify a psychologist's participation in any of these acts. . . . Second, over and above not participating in torture or other, cruel, inhuman, or degrading treatment, psychologists have an ethical responsibility to be alert to and report these acts to the authorities. Third, consistent with both of these statements, the American Psychological Association supports the McCain Amendment. |1449|

APA also quelled members' concerns with the PENS report by definitively stating that certain techniques were banned in the report, though this was not the case. Take Farberman's reply letter to APA member (and future APA Petition Resolution leader) Ruth Fallenbaum in November 2006:

    It is our belief that there are two critical questions surrounding the interrogations issue: (1) What is an ethical interrogation? and (2) What is the most effective strategy to promote ethical interrogations? There is no disagreement within APA regarding the first. All agree that ethical interrogations are based on building a relationship and forming rapport, and that techniques that are abusive or coercive (e.g., water boarding, sexual humiliation, use of phobias, temperature extremes, stress positions) are inconsistent with this way of thinking and are both unethical and largely ineffective. There is complete consensus within APA that these techniques and techniques like them are never to be used.

    Regarding the second issue, we believe there exists strong (but admittedly not universal) support for a common goal: ethical interrogations that leave no room for abusive or harmful techniques. Where there has been much debate is about the best strategy to achieve this goal. APA has chosen a strategy of engagement (unlike the psychiatrists, who have opted for a policy of disengagement). |1450|

Farberman noted a "complete consensus" with the idea that certain techniques like stress positions were always unethical. This is not true, as we saw in our interviews with Banks, Behnke, and Shumate, who would not definitively bar the use of certain stress positions. |1451|

In addition, other public statements and member communications stressed that APA could not be expected to be more detailed than it had been: APA needed to be respectful that the issue was complicated, they did not have all the facts or context necessary to make ethical judgments, that the issue needed more time to develop, and that the task force report was just initial step. |1452| At other times, APA said that they were just following the will of a diverse group of task force members who had adopted the report in either a unanimous or consensus fashion, and the diversity of the group (which included a minority of non-DoD members, some of whom had lobbied strenuously and unsuccessfully for stronger human rights protections) proved how reasonable the report and APA policy was. |1453| Behnke often reached out to the six DoD members of the task force as well to echo these talking points; he did not reach out to the non-DoD members in the same way. |1454| In all instances, this conciliatory language from APA appeared to diffuse any potential criticism rather than address issues head-on in the aftermath of PENS.

3. Listserv discussions

The non-DoD PENS members raised additional concerns about the report in the days after its release. Behnke tried, through himself and Moorehead-Slaughter, to alleviate these concerns in an effort to salvage the report and task force as a whole.

Thomas raised to the task force listserv on July 7 the additional internal chatter with APA groups critical of the PENS report. |1455| On July 8, Behnke sent Moorehead-Slaughter a draft set of talking points for task force members regarding responses to criticism. |1456| Moorehead-Slaughter forwarded the points to the PENS listserv. The note outlined six different points to combat critiques: (1) encourage people to read the report; (2) note the report was a document produced in "good faith" by people from diverse perspectives; (3) explain that the report, "like a good ethics code–is not a list of prohibited activities;" (4) compare the statement with the draft position of the American Psychiatric Association; (5) dismiss supposed first-hand observations on the listserv since task force discussions were private; (6) clarify that the report was the "beginning of the process." |1457| Thomas summarized APA members' concerns on July 8– namely, that the document offered "too much wiggle room" for unethical behavior in the national security context. |1458| Thomas also alluded to the just-published Jane Mayer New Yorker article and increased concern of psychologists being present in abusive interrogation settings. Thomas added that it was " a troubling article to read and I find it difficult to dismiss as exaggerations, misrepresentations, or some such. I am sure there will be further calls to address these issues from Council and the membership." |1459| Banks later emailed that the article misquoted him several times and left him "dumbfounded." |1460|

Thereafter, Behnke also responded on the listserv on July 8–as himself, not through Moorehead-Slaughter–and reiterated the good work of the task force and the nature of ethics codes that do not normally list specific acts as prohibited. He also noted the process an "initial step" and that this "continuing" process would be "written about for many years to come." |1461| Behnke separately emailed Levant, Koocher, Anton, and Farberman on July 10 about these critiques. He mentioned that writing the casebook "will be very important and serve useful political purposes as well." |1462|

Arrigo emailed the group on July 9 and highlighted her concerns about the composition of the task force. |1463| In particular, she noted her concerns with the majority DoD members of the task force. Koocher challenged each of Arrigo's points on July 10–yet another example of Koocher retorting Arrigo's comments on the listserv. |1464|

On July 16, James tried to quell additional concerns Thomas raised on the listserv from Bloche and Marks's latest New England Journal of Medicine article regarding the use of medical records. James remarked that medical records were "strictly off limits" for anyone involved in interrogations, |1465| although the PENS report explicitly allowed access to detainee medical records (although not for improper uses), Banks had made it clear that he wanted psychologists to retain that access (to help protect the detainee's health, he said) . This was not always the reality at Guantanamo Bay, where BSCT psychologists apparently had access to the records until at least October 2006., as discussed earlier in the exchange between Behnke and BSCT member Carrie Kennedy.Arrigo asked for an update on July 18 on whether a casebook, as discussed during the PENS meeting, was still being planned. Moorehead-Slaughter, at Behnke's behest, confirmed that the casebook was agreed on in the recommendations section of the PENS report. |1466| As discussed later, the work of the casebook shifted to the Ethics Committee and then died.

On July 26, 2005, off of the listserv, Behnke sent a response to Bloche after he inquired about speaking with Fein and Shumate. Behnke noted Bloche's voicemail to him regarding the PENS report and stated that the report located itself as an "initial step" in a "continuing process." Bloche responded back and said that the report takes some "well-defined stands on a number of issues." |1467| Behnke responded that the process was still moving forward:

    [F]ar from attempting to cut off debate or discussion, or attempting to locate expertise as residing solely within itself–the task force has handed its work over to a broader audience and invited (recommended) authoritative commentary from groups that very likely will be composed of psychologists with no military background. I think that's an interesting move. . . most such groups work to limit what input other bodies have, in an effort to retain control over their work, and resist any attempts by others to assert their expertise. This task force did exactly the opposite (and built in a mechanism to ensure that would happen). It will be very interesting to see what the Board of Directors does. |1468|

By July 29, Thomas sent her strongest email yet about her disappointment over the PENS Task Force. After another Lewis article in the New York Times detailed how the military's own lawyers raised concerns over the use of harsh interrogation tactics and the need for human rights standards, Thomas that she was "all the more sad" that neither she, Arrigo, or Wessells were unable to insert a more "stringent standard for holding psychologists to account" in the PENS report. |1469| She lamented that the media reports have made her unable to "feel sanguine about our work as having adequately addressed the concerns of our members (or my own for that matter)." |1470|

Moorehead-Slaughter responded, likely with Behnke's input, |1471| to Thomas's email by explicitly stating the military's clear opposition to adding human rights standards in the PENS report:

    [O]ur colleagues from the military were clear that including [human rights] standards in the document would likely (perhaps definitely) put the document at odds with United States law and military regulations. The effect of such a conflict, it seems to me, would be that the military would simply have ignored the document–thus, the community that we would most want to reach would have been prevented from using the report. Of course the document is a compromise-but it's a compromise that has ensured that our voice is present to and heard by the psychologists doing the work and their superiors. |1472|

James separately emailed the group on July 29 and stated that he was "proud of the document" and that he felt "better in [his] heart about the work that psychologists did at GITMO and Abu Ghraib." |1473|

On July 30, Koocher weighed in on the recent media reports and Thomas's points on human rights standards. Koocher does not mince words about his disdain for documents such as the Geneva Conventions and the U.N. Convention Against Torture, noting that he had "zero interest in entangling APA with the nebulous, toothless, contradictory, and obfuscatory treaties that comprise 'international law.'" |1474|

Likewise, Shumate emailed the PENS listserv on August 11 to express support for Behnke and Koocher on behalf of the DoD:

There will no doubt be counter claims that you unabashedly support the military psychologists, yet I believe that what you are truly supporting is the profession and the psychologists that adhere to the ethical guidelines that are at the basis of our profession. We in the Department of Defense applaud your support of the profession and in turn us. |1475|

4. Notable military/government conversations

Elsewhere, Mumford sent Hubbard and a group of government officials an email on July 5 about the PENS Task Force. |1476| The email included several other government officials that Hubbard had messaged in mid-June about his retirement from the CIA and his new job consulting for Mitchell Jessen & Associates. Mumford stated that he "wanted to semi-publicly acknowledge [Hubbard's] personal contribution as well as those of [Kirk Kennedy] and Andy Morgan in getting this effort off the ground over a year ago," alluding to the July 2004 meeting that all three attended. |1477| Mumford continued to say that "your views were well represented by very carefully selected Task Force members (Scott Shumate among them)." |1478| Mumford added that Brandon "helped craft language related to research." |1479| Hubbard speculated to Sidley that Mumford's "well represented" comment referred to Hubbard's view that it was appropriate for psychologists to be in interrogation settings. |1480| Shumate implied to Sidley that he and Hubbard knew that they did not share the same views on this, saying that Hubbard was probably doing the equivalent of "turning over in his grave" when he saw this. |1481|

Behnke reiterated to Sidley that his message to Board member Jessica Henderson Daniel on August 8 encapsulated his thinking immediately after the PENS report's release. |1482| In that message, Behnke expressed gratitude for Daniel's supportive words on the report and his view that psychologists had an ethical role to play in national security settings:

    It's important that we move forward with an understanding of the issues in their complexity and nuance. I continue to feel strongly that we have a solid, thoughtful, and balanced report, and that APA should be PROUD of the very important contributions psychologists have to make in these difficult and challenging times, when we work within clear ethical guidelines.

    I've made this point before, but–should our country suffer another attack, could we really imagine APA taking the position that psychologists, even though experts in human behavior, have no ethical role to play in contributing to the information-gathering processes, to assist in preventing further loss of innocent life? |1483|

We note that Behnke framed the issue based on the concern about public safety and the potential for another attack. Banks later in 2006 emailed Behnke that framing one's position based on public safety was the key to winning the argument, because it was very difficult for anyone to be against protecting public safety ("All those against safety please stand up"). |1484|

On August 9, Dunivin praised Behnke and Newman for their leadership on PENS. After discussing the "potential landmine" of an ethics and national security panel at APA Convention, Dunivin gives a "HUGE THANKS" to them on the PENS Report. Dunivin wrote of the positive effect the report had with the Army Surgeon General:

    Confidentially - The report of the PENS Task Force has enabled the Army Surgeon General to move forward with interim guidance and doctrine on functioning of the behavioral science consultants to this process. Until that's released, it's close hold, even that it's being don[e], but I wanted you to know what an important contribution your timely intervention has made already. It will be well-worth the heat coming up at convention, and beyond. |1485|

Banks emailed the PENS listserv on August 12 with a similar note, explaining that he, James, Dunivin, and others met with Army Surgeon General Kiley for a full day to try "to establish the doctrinal guidelines and training model for psychologists performing this job. The TF report provided, again, a solid anchor to use in our deliberations." |1486|

Ultimately, the full PENS report was appended to the first MEDCOM BSCT policy memorandum in October 2006. |1487| The report itself stated that a BSCT's purpose was to "assist the command in conducting safe, legal, ethical, and effective detention operations, intelligence interrogations, and detainee debriefing operations." |1488| This language has appeared in all subsequent BSCT MEDCOM memoranda, including the most recent one issued in 2013. |1489| Kiley told Sidley that he was not sure what the military would have done if APA had fully barred psychologists in BSCT settings. |1490| To Kiley, the BSCT psychologists kept interrogations safe; he expressed these views to people at APA and believed APA understood the role of BSCT psychologists. |1491|

Newman emailed Behnke on August 12 with his thoughts on the PENS report and his general view on the utility of psychologists in interrogation settings. |1492| Newman remarked that one of "my interests" in having psychologists present in national security settings was because he believed "it is a very good example of psychologists as 'experts in behavior' (rather than simply mental health or health professionals), bringing to the activities, skills and competencies that other professionals just do not have." |1493| He explained further that BSCT psychologists had "two very clear and specific unique contributions" that could make interrogations "safe, legal, ethical, and effective": (1) their role in preventing behavioral drift, and (2) their contributions to "effective information-gathering," such as rapport-building. |1494|

Whether Newman's "interests" were his alone, or in concert with his wife, is of course unclear. But Newman would have a clear interest in arguing for the presence of BSCTs and the unique contributions they make since Dunivin was a BSCT psychologist. In addition, the substance of Newman's comments underscore the inherent conflict, as discuss previously, of the role of a BSCT psychologist on one hand serving as a "safety officer," but on the other hand playing a key role in the "effectiveness" of an interrogation. Here and during the PENS meetings, Newman did not hone in on this conflict since he wanted to maximize the role that BSCT psychologists could play–both because of his wife and because of his general outlook at growing the profession of psychology.

Behnke responded to say that he appreciated Newman's comments and noted the need to "move the debate from whether psychologists should be involved in interrogations to how they may do so ethically." |1495| He cited language from both Division 48 and the Physicians from Human Rights that suggested support for his position. Behnke described the same how/whether framework for Levant on August 13 ahead of Levant's APA presidential address at APA Annual Convention. |1496| Behnke engaged with Bloche about the PENS report in late August 2005 as well. Before his scheduled joint appearance with Bloche on an NPR affiliate on August 25, |1497| Behnke coordinated with Banks and James about what he should say. |1498| Behnke specifically raised Bloche's critique of Statement Three in the PENS Report–namely, that the statement did not bar the use of medical information for crafting an interrogation strategy for a detainee. Behnke suggested that future commentary on the statement (presumably referring to the casebook) could definitively bar this possibility. James stated that "regardless of what the task force report" said, the current Army regulations "strictly prohibit[ed] the use of medical information from medical records." |1499| Behnke later forwarded Bloche's message after their joint appearance to both Banks and Gelles. |1500| Bloche's message indicated how "disheartening" the report was and he implored Behnke to withdraw the report. He recommended that APA follow the model of the Institute of Medicine and seek "broad representation, public presentations to the panel, public discussions, and a final document thoroughly vetted by an independent review process." |1501| Gelles told Behnke that Bloche had "an agenda." |1502| Banks rejected Bloche's comments and thanked Behnke for his work: "thanks from lots of us for what you are doing [] (Just remember to wash your hands when you are done.)." |1503|

5. Responses to Physician for Human Rights and Division 48

On July 15, Leonard Rubenstein on behalf of Physicians for Human Rights ("PHR") sent Behnke and Levant a letter outlining the group's concerns with the PENS report. The letter specifically noted the report's lack of prohibitions in participation in "highly coercive interrogations," lack of adherence to international law "regardless of the interpretation of that law by military authorities," and its lack of adequate protections on confidentiality. |1504| Behnke sent Rubenstein a formal response on August 12, as discussed below.

By July 24, the Executive Committee of APA's Division 48 released their "Statement Concerning the Use of Torture with Prisoners." |1505| The statement was forwarded to Levant and APA Board by July 26. The statement identified five specific calls to action:

    1. Issue a clear statement against the use of inhumane, degrading, or coercive interrogations and the use of torture either physical or mental in the interrogation of prisoners.

    2. Acknowledge, based on the U.N. Convention Against Torture, that there are no exceptional circumstances whatsoever, whether induced by a state of war or a threat of war, internal political instability or any other public emergency, that may be invoked as a justification for torture.

    3. Publicize both within and outside of APA the 1986 resolution concerning human rights and torture.

    4. Issue a clear statement against the direct or indirect involvement of psychologists in inhumane, degrading, or coercive interrogations including interrogations involving the use of either physical or mental torture.

    5. Finally, in light of the evidence implicating psychologists in the use of coercive interrogations and torture at Guantanamo Bay , the Executive Committee of Division 48 calls on the leadership of APA to pursue through whatever organizational and legal means possible an investigation of these charges. |1506|

Koocher asked then-Division 48 President Eileen Borris what the group meant by "coercive interrogation," since certain evaluations or interrogations, Koocher explained, might be permissible but have elements of coercion to them. Koocher clarified that he was "obviously referring ONLY to verbal questioning that does not involve threat of physical harm, etc., but where non-cooperation will have adverse effects (e.g., prolonged detention, denial of parole, etc.)." |1507| Behnke wrote Levant and Farberman that Division 48's statement showed a "remarkable degree of overlap with the PENS report" and that, save for the call to investigate wrongdoers, the two could be read "almost as companion documents." |1508| Behnke later told Kelly that the statement could be "to our benefit." |1509|

On August 10, 2005, Shumate provided thoughts to Kelly on the term "coercive" (likely in response to Division 48's and PHR's letters that use the term). Behnke and Mumford used a response from Shumate (which Kelly forwarded to them) to form a potential response for Division 48 and others within APA. The draft statement used Shumate's language to make the point that interrogations by its "very nature is coercive . . . The important point . . . is that the more coercive the approach, the less confidence one can place in the information gathered. And the point of interrogation is to gather information one can place a high degree of confidence in." |1510|

In a separate communication on August 11, also likely in light of Division 48's and PHR's letters to APA, Behnke emailed Shumate about "to what extent" the Geneva Conventions and Convention Against Torture conventions "now govern detainee interrogations." |1511| Shumate responded that "all interrogators are trained and reminded that they have to adhere to the Geneva Conventions and the Torture Convention." Behnke then responded that others believe the conventions do not apply and inquired whether Shumate had authority that cites the "obligatory nature" of Shumate's statement. |1512| Shumate responded that there may open source documents available as well statements from Secretary Rumsfeld himself about this. During a separate conversation on the same issue between Kelly and Banks, Banks sent Kelly (who later forwarded to Behnke) a copy of Army Regulations 190-8, which governed the treatment of detainees. |1513|

Also on August 12, Behnke sent a response to the mid-July letter from the PHR regarding their concerns with the PENS report, but only after coordinating and pre-clearing the response with Banks. |1514| After Banks noted Behnke's "thoughtful response to an unfair attack," the two sang each other's praises. Banks noted that, after a recent media appearance with Behnke that Banks perceived as unfair, Behnke was his "hero" and to not "let the bastards get you down." Behnke responded that if he was "ever in a foxhole, I hope you're in there with me!" |1515|

Behnke also sent the letter to Gilfoyle, Farberman, and Levant at APA. |1516| Echoing his comments to Newman the same day, Behnke wrote that PHR believed the "issue is not whether psychologists may participate in interrogation processes, but rather how they may do so in an ethical manner." |1517| Behnke rejected PHR's concerns that the report (1) did not directly address the permissibility of interrogation techniques that caused severe harm, and (2) did not bar the military's views of permissible techniques from trumping international law. To the first point, Behnke stated that the report "speaks directly to and prohibits psychologists' involvement in any activity that can cause severe and long-lasting harm." To PHR's second point, Behnke stated that the report "prohibits psychologists' involvement in any activity that constitutes torture or that violates domestic law, and that a military authority indicating that such activities are legal would not thereby make participation for a psychologist ethical." |1518| As discussed previously, however, the report does leave open the issues PHR raised because of the lack of specificity in the document and the use of Standard 1.02 that could permit a psychologist to follow an otherwise-unethical military command.

After Levant sent Division 48 a response to their initial letter in late July, Division 48 sent another letter on August 13 that reiterated their action items, including the need to investigate psychologists involved in wrongdoings at Guantanamo Bay where possible. |1519| Behnke thought that "98%" of the document aligned with PENS. |1520| His biggest concern was with the term "coercive," which he explained could include many legitimate interrogations. He raised these concerns with Shumate before, as discussed above. Behnke thought APA should ask Division 48 for their own definition of coercive or offer one, such as "the intentional use of any technique that would cause severe or lasting pain, suffering, or distress." |1521| He sent this message to Levant, Newman, Farberman, Gilfoyle, and Judy Strassburger (now Judy Strassburger Fox).

On August 13 and 14, Behnke also exchanged separate emails with Banks and Gilfoyle about his draft response to Levant on Division 48's statement on torture and its definition of "coercive." |1522| Behnke's email to Banks suggested that the two conversed on the telephone about whether Banks had any concerns with Behnke's draft response to Division 48. Banks later messaged Behnke that he would be "uncomfortable" with the use of coercion in any final resolution since many police and military interrogations have some level of coercion to it; he added that "most of the folks I work with would be VERY uncomfortable with using the term coercion." |1523|

Gilfoyle worried about setting definitions now and the potential fallout from it. Referencing Behnke's proposed definition of "coercion," she wrote, "I worry about that definition in terms of giving those who think any discomfort is unethical something to shoot at and thus would rather save that for the commentary." |1524| She added that having Division 48 offer their own definition could also raise problems if it was a "very wide definition that we will then have to try to scale back." |1525| Behnke agreed but thought that supporting Division 48's calls to action would be beneficial; he noted the "(substantial) upside to having Council do something–if the 'something' doesn't create problems." |1526|

Behnke claimed in his interview with Sidley that he believed it was positive for Council "to be involved and active," and that his comments started a "theme" for him where he thought increased Council involvement on national security issues was a "good thing." |1527| In light of his extensive efforts to manipulate and obstruct Council actions and his behind-the-scenes commentary and coordination with DoD officials about this, detailed below, we found this statement not credible.

Gilfoyle later raised the potential conflict with Division 48's "coercive" definition and the PENS Report statements. As she noted, if the "coercive" standard was a "lower threshold" than what is outlined in the PENS Report, then that term would need to undergo review by the Ethics Committee. |1528| She suggested it might be better not to have Council act specifically on any of Division 48 statement's for now. |1529| Behnke incorporated Gilfoyle's edits and sent his draft response again to both Gilfoyle and Banks for review the evening of August 14. |1530|

Behnke sent his statement to Levant and Farberman, who both cautioned against posting the statement ahead of the Council meetings, particularly since it was not clear whether the Division wanted to submit their calls for actions as New Business Items. |1531| The group agreed that they would monitor how discussions would arise during Council meetings. |1532|

6. Council actions and Standard 1.02

In the end, Council was formally presented with the PENS report and passed eleven motions related to it during its August 17 and 21, 2005 meetings |1533| at APA's annual convention. |1534| The first seven motions arose from the report's Recommendations section, which included the need for the Board to allocate funds for a casebook (which the Board did in February 2006) and a call for comments on the report through the end of 2005 before the casebook project began. |1535| In addition, Council passed four additional motions: (1) an instruction to the Ethics Committee to explore adding human rights language in to APA Ethics Code Standard 1.02 (which the Ethics Committee completed by late September 2005 and recommended not to add the language, as discussed below); |1536| (2) a statement that there are "no exceptional circumstances whatsoever" to justify torture, included the "invocation of laws, regulations, or orders;" (3) publication of APA's 1986 resolution against torture; and (4) referral to the Ethics Committee of any specific allegations of abuse from psychologists at Guantanamo Bay and elsewhere. |1537|

Behnke separately messaged Banks an update on the Council's motions and noted that "[g]iven what looked possible Tuesday night/Wednesday am, I'm very pleased with Council's final action, which left both the Report and the commentary-writing process completely intact." |1538| Dunivin messaged Behnke separately and praised his efforts during the Council meetings as well. |1539| Farberman told Sidley that Dunivin called her during the APA Convention to discuss media-related issues. Dunivin conveyed to Farberman the need to stay the course and place BSCTs in a "positive light" in APA's communications efforts, Farberman said. She said she found the communication uncomfortable and speculated that Newman shared her cell phone number with Dunivin since few people were aware of her number. |1540|

By September 1, Moorehead-Slaughter declared the group would reconvene in early 2006 once the call for comments on the PENS report was completed by the end of 2005. |1541| On September 8, the Council listserv received a call for questions and comments on the PENS report. |1542|

On September 6, 2005, Shumate emailed Behnke to schedule a time to meet on the PENS report about issues that "potentially concern[ed]" him related to the Council's motions. |1543| Alluding to Council's call to review and amend Standard 1.02 to possibly include human rights language, Shumate specified in his message about the "broad inclusion about human rights" being confined only to issues of DoD or Guantanamo Bay , as well as the issue of following "orders." Behnke and Shumate met on September 8, 2005 to discuss these issues. |1544| Behnke and Shumate said they could not recall the substance of the meeting. |1545|

On September 27, less than three weeks after Behnke's meeting with Shumate, Behnke and the Ethics Committee circulated a two-page document to Gilfoyle and Childress-Beatty rejecting the suggestion that APA incorporate human rights standards within Standard 1.02, per one of Council's August 2005 motions. |1546| The Ethics Committee document concluded that APA's current policies and pronouncements "provide[d] sufficient guidance to members at the immediate present time." |1547| The document then recommended, in several rhetorical lines, that the Ethics Committee be given more time to review the proposal:

    Accordingly, the Ethics Committee respectfully recommends that the Committee be given more time to engage in a process that will allow a fuller understanding of the questions and concerns that gave rise to this proposed change, a deeper consideration of whether the proposed change is the best way to address the underlying considerations, and more extensive examination of the impact adding such language to the enforceable section of the Ethics Code may have. |1548|

The document then cited to the casebook project as an another reason to delay any finding from the Ethics Committee. And it further stated that there were "several provisions in the Ethics Code to sanction psychologists" who engaged in abusive actions, without ever citing any standards in the PENS Report (perhaps the document thought of Standard 3.04, but as discussed before, there is flexibility in how this standard is interpreted). These assurances of deeper analysis in to amending Standard 1.02, however, were hollow. There is little evidence that Behnke or the Ethics Committee ever took concrete steps to fully address these concerns over the standard until the entire Ethics Code was revised by 2010. In fact, Behnke engaged in various delay tactics for years after to obstruct efforts to amend Standard 1.02, discussed in a later section of this report.

B. Casebook failure: January 2006–February 2006

1. Wessells's resignation from task_force

Moorehead-Slaughter (again, through a previously-drafted Behnke message) emailed the PENS listserv on January 11, 2006 to reconvene the group to start work on a casebook and commentary in conjunction with the Ethics Committee. |1549| The message also noted that APA had extended the deadline to accept comments on the PENS report through the end of June 2006.

On January 16, Wessells messaged the listserv to resign from the task force out of "ethical concerns":

    I have decided to step down from the PENS Task Force because continuing work with the Task Force tacitly legitimates the wider silence and inaction of the APA on the crucial issues at hand. At the highest levels, the APA has not made a strong, concerted, comprehensive, public and internal response of the kind warranted by the severe human rights violations at Abu Ghraib and Guantanamo Bay. The PENS Task Force had a very limited mandate and was not structured in a manner that would provide the kind of comprehensive response or representative process needed. |1550|

Wessells resignation, as discussed below, spurred discussions of bringing non-task force members into the casebook process and opened the door for Shumate, in particular, to raise concerns over DoD review of a potential casebook.

Several of the PENS listserv participants, notably from first-time listserv participants Levant and Kelly, urged Wessells to reconsider his decision and outlined APA's future steps in this area. |1551| Behnke also emailed Wessells separately to reevaluate his decision. |1552| Wessells said he appreciated APA's efforts but remained unmoved. |1553| In an email conversation among Anderson, Behnke, Gilfoyle, and Farberman on January 17, both Gilfoyle and Farberman raised the PR concerns that APA might face with Wessells's resignation. Farberman also raised the need to bring in other voices in the casebook process:

I strongly agree that this could be a big PR problem for us, especially in light of Nina's agreement with Mike's thinking. (Hopefully she won't also abandon the process). . . . I see it as even more critical now that additional players be brought into the case book process. Mike's resignation will clearly add fuel to the demands of the social justice coalition that more voices be added to the process. I fear that the remaining PENS group will have no credibility with a vocal segment of our membership. |1554|

Wessells further explained his thoughts on the PENS process and his ultimate resignation to Sidley. To Wessells, the key issue during the PENS process was defining the appropriate limits of psychologists' roles in detainee interrogation settings. While all the members were "horrified" by the abuses at Abu Ghraib, Wessells noted, the majority of members wished to defer to what techniques were permitted in the existing military regulations without further discussions. |1555| Only the most extreme techniques were deplored by everyone at the table, Wessells said, such as extreme beatings or extreme freezing of prisoners, but other methods were not fully discussed. Wessells sensed that Banks, with significant agreement from others in the room, wanted to have the flexibility to conduct actions that were permissible under military regulations but that might be viewed as unethical in Wessells's mind. |1556| For example, Wessells recalled that he had inquired about permissible techniques like sleep deprivation and whether and how the technique was used in concert with other techniques and over certain periods of time; he recalled never receiving a direct answer to these questions.

To alleviate his concerns, however, Behnke and others told Wessells that a casebook would specifically address these outstanding issues immediately after the PENS report was released–within six months, in fact. By August, however, Council had passed a resolution related to the PENS report that there would be an open call for comments on the report through the end of 2005 before the casebook process started. But Wessells described it as "foot-dragging" that Moorehead-Slaughter did not send her email until January 2006 and noting that comments to the report were extended until June. Taken together, Wessells decided to resign because he believed APA and the task force was ultimately content with having the PENS report serve as a standalone document without serious consideration of specific examples. |1557|

2. Shumate's casebook concerns, other DoD members follow

Soon after Wessells resignation, several DoD task force members raised bureaucratic and confidentiality concerns that could preclude the use of publishing interrogation case examples. Shumate first raised the issue with Behnke on January 19 and how Wessells's resignation afforded an opportunity to "gracefully shift gears":

    [A]ny product like a case review book would have to undergo a security and Counterintelligence review throughout the Department. . . . The process would be long and difficult, not impossible, but there would be serious redacting of the manuscript in fear of publishing Source and Methods. . . .At the time of the PENS, I wish I would have thought about this when the topic came up (case book), but I was so excited and pleased by the PENS process, I lost sight of the review process. My guess, is that APA would not be willing to allow DoD to review such a product. In fact, as a psychologist and APA card carrying member, I would question how objective the case book was if it had undergone a security and CI review by the Department. . . . We have before us, if I am seeing this correctly, an opportunity to gracefully shift gears here. . . . I have split loyalties, I need to protect the Department while I also want to protect APA and most importantly the wonderful work that the PENS task force has been able to accomplish to date. |1558|

Shumate later summarized his concerns, with Behnke's drafting help, |1559| on the PENS listserv on January 23 and recommended that the Ethics Committee lead the case book process. |1560| Shumate's listserv message did not mention the "split loyalties" he had mentioned to Behnke between the DoD and APA. On the eve of sending this message to the listserv, Shumate speculated to Behnke that Wessells may have tried to deliberately undermine the PENS process. But, Shumate added, "it also works well for us." |1561| Shumate also alluded to pressures Wessells and others may face in writing the case book: "The pressure he may or may not be feeling from various sectors is the exact reason why I am concerned about the case book, while also recognizing that DoD will tolerate only a certain amount of public release." |1562|

In addition, Shumate told Behnke that he would alert Banks of his message on the listserv in order "to get his second so that he can come up on air immediately upon my sending this," which Shumate acknowledged to Sidley was a reference to lining up a coordinated response from Banks. |1563| True to Shumate's wishes, two days later on January 25, Banks posted on the listserv with his concerns of examples that were classified: "All of my examples and commentary [for Army psychologists] are classified, and cannot be shared outside of the DoD community. I have tried to figure a way around this, but without success." |1564|

On January 26, Moorehead-Slaughter called for other opinions on the issue but noted that "[m]oving forward at this point with a Commentary from PENS is seeming less and less feasible. It is certainly possible that the Task Force has made its contribution to this process and that now it is best for the Ethics Committee to complete this work." |1565| Koocher interjected his thoughts later the same day, stating that the Ethics Committee, per APA's bylaws, is the "only group charged . . . to interpret the ethics code." |1566|

Arrigo pushed back on the idea of passing the casebook solely to the Ethics Committee:

    The Task Force was appointed because the Ethics Committee lacked the background and expertise to address the PENS issues by itself. The Ethics Committee similarly cannot produce a valid and relevant casebook for the PENS report. Without such a casebook, the PENS report could be considered a list of platitudes. . . . I think it is time for the military members to justify their predominance on the Task Force by helping to produce the casebook. |1567|

Levant emailed Koocher and Behnke about "how to handle" Arrigo's response. |1568| Behnke noted there was "NO impediment" to the Ethics Committee's handling the casebook since the committee could draw from the expertise and comments of PENS and non-PENS members alike. |1569| Koocher also offered an outline of a response, which he sent to the listserv on January 27. In it, Koocher rejected Arrigo's assertions, stating that "APA Ethics Committee has much broader expertise in application and interpretation of psychological ethics across a wide range of settings and contexts than the more narrowly formed PENS task force." |1570|

James and Fein also said they agreed that the Ethics Committee should lead the casebook development without any analysis as to why. |1571| It is possible that both would have consulted with Behnke or Shumate, however, to agree with Shumate and Banks's earlier statements. |1572| Gelles said he agreed with this conclusion as well, but noted that "techniques and themes" of a case could be published. |1573|

In contrast, Lefever did not express a preference but thought that thought a casebook with disclaimers could be published with relevant DoD examples. Lefever also noted the "political process" of PENS and how his suggestions on "what is harm . . . fell on deaf ears." |1574|

On January 31, Behnke drafted a message for Moorehead-Slaughter, which she posted verbatim on the PENS listserv, that concluded the "Ethics Committee should take responsibility for this project." |1575| Behnke drafted a letter about the task force's decision that Moorehead-Slaughter later sent to the PENS listserv for review before it went to Levant and Koocher. Notably, Behnke sent the letter to Banks beforehand. Behnke told Banks that "[d]iscretion about prior review is essential." |1576|

Behnke's discretion comment is revealing. It implies that he asked Banks to keep secret Behnke's practice of pre-clearing issues and statements with Banks (a practice that continued in the years ahead, as discussed in later sections of this report). The message shows an understanding that these kinds of missives to Banks were atypical compared to messages with others –that he was using Banks in a unique way different from other task force members. The joint venture relationship between Banks, a key DoD official, and Behnke is presented plainly here (and amplified more in subsequent years, as discussed below).

Moorehead-Slaughter sent the letter–that Behnke had drafted–for task force review on February 1. Arrigo wrote a minority statement for inclusion on February 12. In her note, Arrigo wrote her concerns with the PENS process: (1) that the task force members had the appropriate expertise to craft a casebook, not the Ethics Committee; (2) that the scope of the task force should have been broader; (3) that the task force was not a completely independent body; and (4) that there was a lack of transparency within the task force. |1577|

At the same time Arrigo drafted her minority statement, Behnke requested (through an email from Kelly) that Shumate, Fein, or Banks also write a position statement praising the report. |1578| As Kelly wrote:

    Steve is wondering whether you all, as DoD employees, would be able and willing to write a short note to the tune of "we commend this Task Force for its work on this important issue and are pleased that its report was supported by all members of the Task Force." . . . There is some concern that having only Jean Maria's attached letter could be problematic strategically. |1579|

On February 13, Behnke emailed Kelly, Shumate, Fein, and Banks with suggested points for a potential statement. |1580| Behnke also requested that, "given the complexity" of having Banks write the letter, that either Fein or Shumate write it. On February 14, Fein sent a letter to the PENS listserv for appending to Moorehead-Slaughter's and Arrigo's letters. The letter praised the task force's work. |1581| It did not use any of Behnke's suggested points.

Moorehead-Slaughter provided an update on the task force at the February 2006 Council meeting. She noted on the PENS listserv on February 22, 2006 that Koocher informed Council that the Task Force "fulfilled its function and actually no longer existed as an entity after 12/31/05." |1582| In an interview with Sidley, Koocher changed his thoughts about when exactly the task force expired. |1583| At first, he thought task forces lasted one year unless renewed. Then he declared that task forces existed until the end of the calendar year after it was pointed out that the task force was not approved until February 2005. He then stated that the task force ended after the release of the PENS report in July 2005. None of these responses appear plausible, particularly since this was never mentioned before as the casebook discussions began again in January 2006. Instead, it appears that Koocher declared this on the PENS listserv to create the disingenuous argument that "resignations]" were impossible and non-congizable. |1584|

On February 24, 2006, Arrigo asked whether APA would allow space for her and Wessells to write a letter in a future Monitor magazine to express their views about the PENS Task Force. |1585| Everyone who offered an opinion on the listserv disapproved of Arrigo' actions. The letters were ultimately published in the May 2006 Monitor magazine in response to an earlier Koocher column on the PENS report in February 2006. |1586|

Ultimately, Behnke did virtually nothing to pursue a casebook for years, effectively abandoning an essential element of his (disingenuous) claim that APA's development of ethical guidance on the issue would be a multi-step process. Behnke made the argument to us during his interviews that a casebook was on hold because they lost the subject-matter experts from the PENS Task Force and because the Council began passing resolutions in 2006 that provided more specific guidance for psychologists. |1587| We do not think this is true, since as set out below, Behnke was the lead APA strategist in attempting to manipulate and water down Council resolutions to minimize the effect on DoD. The real reason there was no casebook is that there was never a real desire to create one, because it would necessarily create the same problems that specificity within the PENS report would have had (as APA staff had identified as early as December 2004)–drawing a line that allowed psychologists substantial latitude in supporting interrogations, as DoD desired, created substantial PR problems. The only solution to this dilemma was to keep the guidance non-specific.

That this was actually Behnke's thinking is corroborated by the internal emails he sent in January 2011, when he finally created a draft document that was something well short of a book (a 30-page document) containing 25 "vignettes" and Ethics Committee responses on this topic. |1588| The document, a final version of which was posted on APA's website in June 2011, took no clear stands on whether certain techniques in the Army Field Manual could be unethical. The document instead outlined analytical questions a psychologist could ask to conclude whether a particular technique was ethical. In sending the draft document to Anderson, Honaker, Gilfoyle, Farberman, and two others, he explained that "[o]ur primary focus was to write responses that would not cause us any problems." He expressed satisfaction that there had been almost no discussion of "this piece of the interrogation issue for some time," and said that his plan was "to post this text, quietly, very quietly on the Ethics webpage." |1589| Thus, six years after PENS, the great promise of a casebook as the proper means of providing specificity and resolving the unavoidably (said Behnke) limited nature of the PENS report had shrunk to the form of a 30-page document, intentionally created to avoid any "problems," which was snuck into a corner of the APA website with the fervent hope that it would be entirely ignored.

C. Arrigo and Democracy Now! fallout: August-September 2007

A coda to Arrigo's PENS-related interactions arose in the summer of 2007. On August 20, journalist Amy Goodman broadcast a story on her Democracy Now! program that aired excerpts from a Town Hall meeting at the 2007 APA Convention in San Francisco. The story heavily featured Arrigo's speech from the Convention where she highlighted what she thought were various problems with the PENS Task Force. |1590| In response, Koocher wrote Goodman an open letter in late August 2007 attempting to refute many of Arrigo's claims. Koocher claimed in his letter that Arrigo disclosed her father had committed suicide and that her "troubled upbringing" explained her actions after the PENS process was complete. |1591|

By September 5, also in response to the Democracy Now! story, then-APA President Sharon Brehm ("Brehm") posted to the Council listserv an open letter from Moorehead-Slaughter that defended the work she and the task force members completed on the PENS Task Force. |1592| Behnke helped draft this letter for Moorehead-Slaughter in late August 2007. |1593| It is not clear how much of the letter was drafted by Behnke or by Moorehead-Slaughter. But using the PENS process as a guide, it is likely that Behnke drafted much, if not all, of this letter as well. Notably, both Behnke and Brehm placed final edits on Moorehead-Slaughter's letter before it was publicized. |1594|

Koocher was incorrect in his letter when he stated that Arrigo's father had committed suicide. Arrigo's father was alive during the time of PENS. Koocher has insisted that Arrigo lied during the meeting about this fact, and Arrigo has insisted she never stated her father was deceased or that he committed suicide.

Our interviews on this issue strongly support Arrigo's position. To be sure, all relevant interviewees recalled that Arrigo, in a very personal way, had discussed portions of her father's background and her difficult relationship with him during the Task Force member introductions at the PENS meetings: about his military experiences, his undercover work during World War II, his mafia ties, and his involvement in torture with the CIA/OSS. But only two people we interviewed believed with any certainty that Arrigo stated her father committed suicide at some point during the meetings–Koocher and Kelly, although their memories about when and how Arrigo made the statement differed significantly. |1595| The remaining eleven participants who commented on this issue either did not recall such a statement being made or were unsure whether it was made. |1596| The overwhelming evidence shows that Koocher's assertion that Arrigo said her father had committed suicide–part of a highly personal attack on Arrrigo - was unfounded and unsupported.

Arrigo's experiences during PENS have led her to conclude that the process was part of a larger counterintelligence operation that sought to ensure that the government, particularly the CIA, could continue with its interrogation practices. |1597| Arrigo told Sidley that the process for a favorable PENS report was driven by its closed process and APA observers in the room, especially Newman, and not the DoD members. She believed that the observers were present to check on the DoD members and ensure they did not run afoul of what the government wanted in the report. She cited as an example how certain DoD members in the meeting showed a willingness to add specifics into the report and how Newman, Koocher, and Behnke avoided these discussions. She was also complimentary of Banks since he supported her throughout the meetings and appeared open to many discussion points; she admitted, however, that Banks may have been trying to manipulate her. |1598|

Sidley could not fully confirm these suspicions with our limited power to examine agencies like the CIA. While we observed several aspects that supported Arrigo's theory–the role of Newman, the closed nature of the meetings, and comments from military members about international law or specific techniques–we also observed factors that did not. For one, we have not unearthed any evidence to support the view that other APA staff in the room were present to control the DoD members. The most vocal APA participants–Newman, Koocher, and Behnke–supported the DoD members' position and did not appear to "control" any of them; as the evidence shows, Behnke was essentially following Banks's lead regarding critical portions of the PENS report, not vice versa. Second, Banks appeared to play a leading role in ensuring the PENS report was not specific and did not contradict military policies. His role contravenes the idea that he or other DoD members did not have an influential role during the meetings.

D. APA policy victories in 2006

As has been noted, one of the key benefits that APA sought from its close collaboration with DoD was a positive outcome regarding the official policy DoD was developing on the issue of interrogations and the involvement of psychologists, psychiatrists, and other "behavioral science consultants." And APA received exactly what it wished for, as DoD official doctrine and Medical Command policy explicitly provided a large role for psychologists (and not as much for psychiatrists) in the support of interrogation and detention operations–an outcome that clearly was due in substantial part to what was seen by DoD as the very "supportive" position taken by APA in the PENS report.

Spurred largely by the draft policy document that Morgan Banks (along with other SERE psychologists in Army Special Operations Command and Debra Dunivin) drafted in and around 2004 to provide guidance and instructions to BSCT psychologists regarding interrogations and detention operations, the Army Surgeon General's Office started a formal effort in late 2004 and early 2005 to draft an official Medical Command policy which would apply to all behavioral science consultants involved in interrogations. As the Executive Agent for the administration of DoD detainee policy, the Army Surgeon General's Office's policy would cover the entire military. |1599| The draft document that Banks had drafted by the first half of 2005 (and which he distributed at the PENS meetings) became the official Medical Command policy (almost verbatim in all key respects) in October 2006. |1600|

APA had learned of this policy development effort in early January 2005 as it was starting to configure the PENS task force, and it was clearly one of the lead motivating factors for APA in selecting task force members and producing a task force report that would please DoD. In effect, APA assured that its ethics policy would be completely aligned with DoD's policy by (1) taking the key framework in Banks' draft policy document ("safe, legal, ethical, and effective") and using it as the key framework in the PENS report, and (2) following Banks's lead in all other important policy respects in the PENS report. Banks's draft policy document thus became the basis for both the PENS report and official DoD policy, making it a foregone conclusion that APA and DoD policy were perfectly aligned. If fact, the most recent version of this DoD policy (2013) still contains the full PENS report as a formal part of its policy document. |1601|

While the Surgeon General's Office was finalizing its Medical Command policy, based on Banks's document, and getting approval from various parts of DoD, higher-level DoD doctrine documents were required before the Medical Command policy could be issued. The highest-level of these doctrine documents was a "DoD Directive," (or "DoDD") and in November 2005, the Acting Secretary of Defense issued one on "Intelligence Interrogations, DoD Debriefings, and Tactical Questioning." The eight-page document contained an explicit mention of "behavioral science consultants" assisting interrogations, an inclusion that was seen as a huge victory for SERE and other military psychologists. Right after it was issued, a SERE psychologist with the DoD Joint Personnel Recovery Agency sent a congratulatory note to the team that had helped make this a success–Behnke, Banks, and two Air Force SERE psychologists: "Thanks to all for your hard work, we are now in an official DoDD." |1602|

The next step in DoD doctrine was a "DoD Instruction" on the topic ("DoDI"). In June 2006, the Assistant Secretary of Defense for Health Affairs, William Winkenwerder, issued a DoDI that explicitly prioritized psychologists over psychiatrists in the role of "behavioral science consultants" who supported interrogations and related activities. The document provided that "physicians [i.e., psychiatrists] are not ordinarily assigned duties as [behavior science consultants], but may be so assigned, with the approval of [the Assistant Secretary of Defense], in circumstances when qualified psychologists are unable or unavailable to meet critical mission needs." |1603| And in comments to the media about the new DoDI, Winkenwerder explicitly mentioned that the "clear[] support[]" from the APA regarding the role of psychologists in interrogations (a reference to PENS) "influence[d] our thinking" because, he noted, the American Psychiatric Association had not taken a similarly supportive position. |1604|

This was a very large victory for those who were focused on growing opportunities for employment and influence for psychologists, especially compared to psychiatrists. By winning the primary position with DoD regarding which mental health professionals would provide support for DoD interrogations, APA cemented its position with DoD in a manner that is likely to produce substantial employment and other financially-beneficial opportunities for psychology.


POST-PENS PERIOD

THE POST-PENS PERIOD - LATE 2005 TO EARLY 2009

I. GUANTANAMO BAY TRIP

Levant's trip to Guantanamo Bay was an opportunity for APA to solidify the "good PR," as Newman put it, the organization had gained from the release of the PENS report. APA took this trip very seriously and organized a series of meetings for Levant ahead of his trip, including with Dunivin and Banks. The trip was another example of APA relying on the observations of its key military contacts to educate their views on a particular issue and stay "on message" with what those contacts told them.

A. Beginnings of the Trip

On September 28, 2005, Col. Robert Ireland ("Ireland") of the Office of the Assistant Secretary of Defense, Health Affairs invited Levant to visit Guantanamo Bay on October 19 and see first-hand the "detainee and medical operations areas." |1605| Levant noted to his colleagues at the University of Akron that the offer was a "once in a lifetime opportunity and I should accept." |1606| The University approved of his trip and Levant began coordinating meetings with APA staff and military members to prepare for the trip.

Levant spoke with Banks on September 29 after Behnke suggested Levant reach out to him. |1607| Newman separately emailed APA leadership about the importance of a successful trip for APA:

    I happen to know that there are currently some prickly interprofessional issues that are alive and well in terms of who is doing what at GTMO that will likely surface during a trip of this sort. Handling them optimally will cement the good PR we have gotten with the military and DoD as result of the PENS report; handling them otherwise will potentially [sic] undo some of the Association's good work. |1608|

Newman's allusion to "prickly" issues referred to a conflict between psychology and psychiatry. After Ireland confirmed with Levant that American Psychiatric Association President Steven Sharfstein would attend the trip, Newman informed Levant on October 6 that there were "difficult interprofessional issues with psychiatry" over the issue of BSCT teams that Newman would describe further at a later time. |1609|

A tentative attendee list was sent to Levant on October 7, 2005, and included the following names:

  • Dr. William Winkenwerder, Jr., MD; Assistant Secretary of Defense (Health Affairs)
  • VADM Richard Carmona; Surgeon General of the United States
  • Lt Gen Kevin Kiley; Surgeon General of the Army
  • Maj Gen Joseph Kelley; Joint Staff Surgeon
  • Dr. Audiey Kao; AMA: Vice President, Ethics Group
  • Dr. Ronald Levant; American Psychological Association, President
  • Dr. Larry Mohr; Board of Regents, USUHS; Professor of Medicine, Med Un of So Carolina
  • Dr. Susan Okie; New England Journal of Medicine, Contributing Editor
  • Dr. Steven Sharfstein; American Psychiatric Association, President
  • Dr. Nancy Sherman; Annapolis Inaugural Ethics Chair, Prof of Philosophy, Georgetown Univ.
  • Dr. Priscilla Ray; AMA: Chair, Council on Ethical and Judicial Affairs
  • Anthony Fortune, Col (ret), Detainee Affairs Escort |1610|

Levant and the attendees would be at Guantanamo Bay somewhere between four and five hours. |1611| Levant informed Council of his trip to Guantanamo Bay on October 8, 2005. He received a few messages that worried whether the trip would be a "publicity stunt" for the DoD and that only superficial discussions would occur. |1612| In a separate correspondence, Patrick DeLeon emailed a contact in Surgeon General Kiley's office to inform him that Levant, a "long tine friend," was attending the Guantanamo Bay trip. The contact informed DeLeon, who forwarded her response to Levant, that it was "already done." |1613|

Also during this time in mid-October, Behnke planned to meet with Dunivin and Marshall Goby, an Army Colonel who oversaw training efforts at the time with BSCT teams. |1614| Neither Dunivin nor Behnke believed the meeting related to Levant's Guantanamo Bay trip. |1615| It seems likely, rather, that this meeting and Goby's presence related to Behnke's possible role in helping train BSCT psychologists in the future. This assumption is further corroborated by the fact that in about October 2005, Dunivin began acting as Consultant for the Army Surgeon General's BSCT Policy, Course and Ethics, which dealt with providing training to BSCTs in interrogation and detainee operations. |1616| More on Behnke's BSCT trainings, which began in 2006, is discussed in later in this report.

Separately, on October 17 and 18, Behnke and Kelly discussed concerns raised by Shumate and Fein about Levant's Guantanamo Bay trip. |1617| Shumate thought the visit could be "manipulated duh like no one else is going to figure this out," and added his concerns over how the American Medical and American Psychiatric Associations were "unsupportive" of efforts at Guantanamo Bay. Shumate added that, "[f]rom DoD perspective having APA president at GTMO is a good thing, yet I am concerned that the perception and possible media handling of this visit may turn into a concerning moment for psychologists." Shumate further stated that the DoD should have arranged for a "special visit" by APA since they have been supportive of interrogation efforts. |1618| Fein cryptically responded that there "have been more potentially controversial psychologist activities involved with the island than just the ones in the headlines." |1619|

B. Levant's Meetings Before the Trip

Behnke scheduled a series of meetings for Levant on October 18, |1620| the evening he was scheduled to leave for Andrews Air Force Base (and to Guantanamo Bay thereafter). Specifically, he organized separate meetings for Levant with Dunivin, Kelly, Banks, and APA Staff that day. |1621| Behnke also appended a copy of the American Psychiatric Association's draft position statement on psychiatrist participation in detainee interrogations for Levant's review. In a separate email with APA leadership, Behnke suggested that Farberman provide Levant with talking points from the PENS report in case Levant was asked policy questions. |1622| In addition, Banks shared with Levant, Newman, and Behnke a draft BSCT policy memorandum–what ultimately became Kiley's 2006 MEDCOM/OSTG BSCT policy memorandum–for discussion during their meeting on October 18. |1623| These meetings with Dunivin and Banks were undoubtedly arranged to make sure that Levant remained "on message" during and after his trip.

Sidley collected from Levant six different sets of handwritten notes of his meetings related to his Guantanamo Bay trip, full copies of which are attached to this report. |1624| One set of these notes described the meetings Levant had with Dunivin, Kelly, and Banks on October 18. Several highlights from these meetings, along with additional insights from other documents and interviews, are listed below: |1625|

  • Dunivin meeting: Dunivin's meeting with Levant covered her thoughts about the positive impacts various leaders had on BSCT teams at Guantanamo Bay . She also described the role of BSCTs and named others that she had worked with and who Levant may meet with at Guantanamo Bay. |1626|
    • On Army Surgeon General Kevin Kiley ("Kiley") and General Jay Hood: |1627|
      • "acknowledge [Army Surgeon General Kiley's] support of BSCTs!"
      • On Hood: "Debra- it was a real pleasure to serve with him, really an excellent leader, confident with vital insight, Doing a lot to empower BSCT's bring psychology to high level consultants"
    • On BSCT teams:
      • "BSC Do not have access to med. records"
        • Levant noted that this was a flash point in the public since there were allegations that BSCTs were using records to advise on interrogations. |1628|
      • "[Steve Rodriguez, Dunivin's boss while at Guantanamo Bay ] has helped move to another frontier of psychology"
        • Levant stated that this comment appealed to him. |1629|
      • "Local policy of establishing confidentiality even where there was no need nationally"
      • "Worked out how to share info. comfortable to a proper level" and "Firewall between medical unit"
        • Dunivin noted in an interview with Sidley that BSCTs would only receive medical information to prevent harm to the detainee. An example of this would be if an interrogator thought to offer sweets to a detainee who was diabetic.
  • Kelly meeting: Levant's notes on his meeting with Kelly are sparse. Kelly sent an email after her talk with Levant, however, which described their conversation:
    • [W]e had a good conversation about the congressional atmosphere and legislation regarding detainee issues. He had a good talk with Debra just before ours, especially regarding DoD protocol. I'm attaching a written brief that I went over with Ron and will hand him this afternoon. We also spent some time discussing DoD's likely motivations for the trip and related things to avoid. |1630|
    • Kelly recalled in an interview with Sidley that she did not think it was appropriate for Levant to attend this trip. |1631| She stressed to Levant that he only speak about the PENS report as APA's policy and to not take positions on other issues that may arise during the trip. |1632|
  • Banks meeting: Banks underscored the need for psychologists in these interrogation settings to keep them safe, legal, ethical, and effective.
    • "coerced word used in a way that is not helpful. specific behavior not use that word"
      • Levant believed the point in this note was that the word "coercion" is too ambiguous and that one should talk about specific behaviors that might be right or wrong. |1633|
    • "SERE training. Training for psychologists is that they be SERE qualified."
      • Banks explained to Sidley that he thought it was important for psychologists to receive SERE training in order to learn how to prevent abuse. |1634|
    • "Whole Key–our participation–key phrases–safe legal ethical and effective"
      • Banks stressed to Sidley that psychologists had to participate in interrogations settings in order to make them safe, legal, ethical, and effective. Banks noted that the rate of abuses greatly reduced when psychologists were present in during an interrogation. |1635|

"by their knowledge of individual behavior they make us more effective"

To Banks, psychologists' knowledge of human behavior allowed them not only to prevent behavioral drift in an interrogator, but to make an interrogation more effective. |1636| As discussed, there is a conflict between a BSCTs role as a safety officer and their role in ensuring that an interrogation is effective.

In an earlier message about Banks's meeting, Behnke hoped that Banks could debrief Levant on "on the four investigations regarding detainee treatment, in particular what the investigations said about the role of psychologists." |1637| Banks told Sidley that he suspected Behnke's comment referred to four investigations that had been completed and in the public: |1638| (1) the DAIG Detainee Operations Inspection Report (of which Banks was a member); |1639| (2) the Schlesinger Report; |1640| (3) the 15-6 Investigation into the FBI Allegations of abuses at Guantanamo Bay; (4) the Martinez-Lopez Report into detainee abuses. |1641| Banks explained that he wanted discuss these reports and combat the "misinformation" on detainee abuses and "to get the facts out." |1642|

Levant's trip consisted of meetings with Guantanamo leaders who provided positive information about the facility and detainee treatment. Assistant Secretary of Defense Winkenwerder and Surgeon General Kiley also had a dinner with the group to discuss their observations and any concerns.

On October 23, APA released a statement about Levant's trip. |1643| Following the PENS report's language, the release stated that APA "will continue to help advise DoD to ensure that work by psychologists is safe, legal, ethical, and effective." |1644| The word "effective" was added at Newman's suggestion. |1645| On October 25, Fein emailed Levant stating he had heard from some DoD colleagues this Levant's visit went well. |1646| He also indicated his belief that "psychologists have a lot [to] offer in the national security area, and this is a very complicated time and political climate." |1647| Levant forwarded the message to Behnke, who responded positively: "Ron, this is a very good message. If we stay [on] our thoughtful and reasonable course, I think APA, psychology, and society will benefit in the long run, even if there are a few bumps in between."

In 2007, Levant wrote an article about his Guantanamo Bay trip in the journal Military Psychologist. |1648| Levant wrote that his "goal" for the visit "was to create opportunities for APA to advise DoD in setting up rules and procedures that allow psychologists to work in the national security arena and do so in ways that are legal and ethical and that protect the safety of all participants." |1649| In Sidley's interview with Levant, he reiterated that he wanted to give a "good impression" for psychology during his trip. |1650| One of his goals as APA President, Levant stated, was to expand the scope of the profession; having psychologists in non-healthcare military roles fit that vision. |1651|


II. APA SUPPORT OF THE MCCAIN AMENDMENT

APA has always touted its support of the McCain Amendment in 2005 as an example of its independence from DoD efforts to reinforce its stance against torture and cruel, inhuman, or degrading treatment. But APA's support came only after it effectively received pre-clearance of such support from DoD official, Morgan Banks.

The Physicians for Human Rights ("PHR") approached APA for its support of the McCain Amendment on October 19, 2005, pointing out that the AMA and ApA had already sent letters to Congress expressing their support. |1652| Behnke forwarded the message to Anderson, Honaker, Gilfoyle, Farberman, Newman, and Henry Tomes–and later to Breckler, Kelly, Mumford, and Garrison–and inquired whether APA had a position on the amendment. Behnke saw this as an opportunity to give APA a strong talking point with its critics on the interrogations issue, likely without causing any damage to DoD: "If APA endorsed, I think that could be enormously helpful in addressing concerns of some of the individuals/groups who have been intensely interested in the PENS report." |1653| Behnke added that based on his interactions at a conference at the Naval War College (a confidential conference of national security psychologists with security clearances), he believed that "our colleagues in the military would not have serious objections to APA's doing so." |1654|

On October 21, Behnke emailed Banks to make sure that APA's support of the McCain Amendment would not cause any problems for the military, asking whether he thought any part of the amendment contradicted the PENS report. Behnke pointedly asked, "Is there any reason we should be hesitant about the McCain Amendment?" On October 24, Banks responded to Behnke and stated that he did "not see any inconsistency" between the McCain Amendment and the PENS report, but added that because of the "political nature" of the amendment, he could not comment on it further. Banks then offered to discuss it with Behnke "privately." |1655|

At the same time, members of APA's Education Directorate worried that support for the McCain Amendment might anger the Chairman of the House Defense Appropriations Subcommittee, who was opposed to the McCain Amendment, |1656| and that this, in turn, might cause the Chairman and the Subcommittee to not support a Defense Graduate Psychology Education ("D-GPE") Program that APA had worked hard to initiate and sponsor. |1657| Internally, Nina Levitt explained that the Education Directorate was sponsoring the D-GPE program for training military psychologists and that it would be considered at an upcoming congressional Defense Appropriations Subcommittees Conference.

Despite these concerns about how the subcommittee Chairman and other House Republicans might react, APA supported the McCain Amendment by drafting letters to the House and Senate Appropriations Committees. |1658| However, APA's internal communications show that APA had no fear that this action would anger DoD, or create negative consequences for APA with DoD, especially after Behnke's communication with Banks.

Shortly after the McCain Amendment passed, Behnke received word from DoD of a major achievement stemming from APA's strategy of close collaboration with DoD. On November 14, 2005, SERE psychologist, Kenneth Rollins, sent a congratulatory email to Behnke, Banks, and two Air Force SERE psychologists to thank them for their work in getting DoD psychologists explicitly included in a new DoD Directive on "DoD Intelligence Interrogations, Detainee Debriefings, and Tactical Questioning": "Thanks to all for your hard work, we are now in an official DODD." This Directive, 3155.09, dated November 3, 2005, was a crucial, high-level policy document–the highest level of DoD doctrine–signed by the Acting Secretary of Defense. It contained 11 paragraphs defining the "general principles of interrogation operations." One of them created a role for "behavioral science consultants" such as psychologists, a huge victory for this group of military psychologists. |1659|


III. FEBRUARY-AUGUST 2006: COUNCIL RESOLUTION AND APA'S PUBLIC STATEMENTS

A. February–April 2006: Proposed Council Resolution

On February 18, during the February 2006 Council meeting, Judith Van Hoorn and Corann Okorodudu from Division 48 (the "movers"), submitted a new business item titled "Torture and Cruel, Inhuman, or Degrading Treatment or Punishment." During Sidley's interview with Linda Woolf, who also worked on the resolution, she explained that the resolution arose mainly out of dissatisfaction with the PENS Task Force report and the fact that it did not contain a clear statement about what psychologists could and could not participate in. The item was co-sponsored by the Divisions for Social Justice, and approximately 60 Council representatives co-signed the item.

The stated purpose of the resolution was to update the APA's 1986 Resolution on Torture, and to APA Council's Actions regarding the PENS task force. The 1986 Resolution stated simply that APA "condemns torture wherever it occurs" and supports the UN Convention Against Torture and the UN Principles of Medical Ethics. The language of the resolution, as originally submitted, contained four "be it resolved" paragraphs. The first paragraph provided that it was unethical for "psychologists to apply their knowledge and skills in order to assist in the interrogation of prisoners and detainees in a manner that may adversely affect the physical or mental health or condition of such prisoners or detainees and which is not in accordance with the relevant international instruments." Thus, it would likely have barred psychologists from participating in interrogations using anything other than regular questioning and rapport-building techniques. The second paragraph, depending on how the term "professional relationship" was interpreted, may have prohibited psychologists from participating in any interrogation in any setting. The full text of the draft resolution was as follows:

    WHEREAS, the American psychologists are bound by the Ethical Principles to respect the inherent dignity and worth of the individual and strive for the preservation and protection of fundamental human rights recognizing the equal and inalienable rights of all members of the human family and;

    WHEREAS, the existence of state-sponsored torture and other cruel, inhuman, or degrading treatment or punishment has been documented in many nations around the world and;

    WHEREAS, no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, serve as a justification of torture, and other cruel, inhuman, or degrading treatment or punishment and;

    WHEREAS, torture victims and victims of cruel, inhuman, or degrading treatment or punishment may suffer from long-term, multiple psychological and physical problems:

    BE IT RESOLVED, that the American Psychological Association condemns torture and cruel, inhuman, or degrading treatment or punishment wherever it occurs, and

    BE IT FURTHER RESOLVED, that the American Psychological Association considers it is a contravention of professional ethics for psychologists to be involved in any professional relationship with prisoners or detainees the purpose of which is not solely to evaluate, protect or improve their physical and mental heath, and;

    BE IT FURTHER RESOLVED, that the American Psychological Association considers it is a contravention of professional ethics for psychologists to apply their knowledge and skills in order to assist in the interrogation of prisoners and detainees in a manner that may adversely affect the physical or mental health or condition of such prisoners or detainees and which is not in accordance with the relevant international instruments, and;

    BE IT FURTHER RESOLVED, that the American Psychological Association supports the United Nations (UN) Declaration and Convention Against Torture and Other Cruel, or Degrading Treatment, Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Basic Principles for the Treatment of Prisoners, and Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as well as the joint congressional Resolution opposing torture that was signed into law by President Reagan on October 4, 1984.

Behnke and the Ethics Committee were assigned as the lead committee and staff with respect to the resolution. On March 17, 2006, Van Hoorn emailed Behnke to explain a small change to the resolution and to send him supporting documents, including a 20-page justification statement that included a lengthy bibliography and analyzed types of psychological torture (including sleep deprivation), psychological effects of torture, and treatment of torture survivors. |1660|

At a meeting in March, the Ethics Committee discussed the resolution, although the minutes do not reflect the content of the discussion, other than to indicate that Behnke and Committee Chair Moorehead-Slaughter would lead the Committee's efforts. |1661| Because the Ethics Committee was unable to contact Van Hoorn and Okorodudu during the meeting, Moorehead-Slaughter and Behnke agreed to call them to "convey the Ethics Committee's thoughts about specific language in the resolution that was potentially inconsistent" w