Psyche, Science, and Society

Referendum FAQ

August 12th, 2008

The authors of the APA referendum on participation in Bush detention centers have created an FAQ which they have just revised to address questions being raised about the wording and the intent of the referendum [see also my Vote Against Torture Collusion]:

Q. In regard to the U.S. Constitution, the referendum says, “(where appropriate)”, why was that put in there, and what does “(where appropriate)” mean?

Where appropriate means settings where the U.S. Constitution forms the law of the land and settings in which the Supreme Court has decided it applies.  It therefore applies to the 50 states, embassies, and areas within the U.S.’ maritime and territorial jurisdiction - it also applies to U.S. citizens everywhere.  It does not apply in, say, Canada.  So a Canadian psychologist working in Canada is working ‘outside’ of the U.S. Constitution but ‘inside’ of international law.

Q. I have been told that this language will affect the work of psychologists working in jails, prisons and hospitals.

See our August 6 letter to APA members on the Psychologists for an Ethical APA homepage.  www.ethicalapa.com

Q. This is a complex answer.  Why don’t just answer that question with a simple and definitive ‘no’?

Because this is a complex situation.  If and when Guantanamo and the black sites are closed down the ‘detainees’ could be brought to the U.S. and held under similar conditions.  If Guantanamo, the facility, is ‘closed’, the equivalent of Guantanamo, the policy, could be re-established on U.S. soil. In these, and other possible cases, the referendum policy could and should still apply.

Q. If you didn’t mean to target existing U.S. prisons and jails why did you include the words ‘U.S. Constitution’ in the referendum?

We had two main reasons for doing so:

1. As we have already mentioned, we are concerned that U.S. torture policy will be brought home.

2. To make it clear that we are endorsing both the U.S. Constitution and international law, as outlined in the Convention Against Torture and the Geneva Conventions, directly and without qualification.

Q.  Why is that important?

Some people strongly support and value international law.  However, the United States has taken an ambivalent stance towards international law by adding “reservations” to some international treaties it has ratified.  For example, when it ratified the Convention against Torture, the U.S. added “reservations” that exclude the law’s ban on most forms of psychological torture:

“In its reservations to the Convention against Torture, the United States claims to be bound by the obligation to prevent “cruel, inhuman or degrading treatment or punishment” only insofar as the term means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution. Furthermore, U.S. reservations say that mental pain or suffering only refers to prolonged mental harm from: (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) the use or threat of mind altering substances; (3) the threat of imminent death; or (4) that another person will imminently be subjected to the above mistreatment. (Human Rights Watch, http://hrw.org/english/docs/2004/05/24/usint8614.htm)

We find it unfortunate that the APA has reproduced the language of the U.S. “reservations” in its official statements. Since we believe these “reservations” deserve no additional legitimacy from our organization, this referendum unequivocally endorses both international and constitutional law.

Q. Why haven’t you provided a definition of torture?

A. Our first citation includes the internationally accepted definition of torture as well as an extensive discussion of the scope and applicability of international law.  It is important to note that this definition - like many legal definitions - is in a state of flux, it changes as courts consider new cases. The jurisprudence surrounding this definition is as important as the definition itself.  Further, the definition may change as new treaties are adopted.  We would ask the question - why would we accept anything other than the internationally accepted definition?

Q. What do you mean by international law? Which treaties? What courts? Which cases?

A. The APA is a UN- recognized nongovernmental organization (NGO) and therefore is subject to the U.N.’s interpretation of international law. We believe that the question is not to which portions of international law should psychologists adhere, but rather why would we be seeking to opt out of some portions of the law?

Q. Isn’t this language vague?

A. That depends on what you mean by “vague.”  If, by “vague,” you mean badly or inadequately defined, the answer is “no.” We do not believe we have offered poor or partial definitions.  If you mean ‘unspecified’, then it is true that we have not specified what portions of international law to which the APA should adhere; nor do we believe that we should do so.

By way of analogy, if we had written a referendum that said: “psychologists shall at all times obey the speed limit,” we could be charged with failing to specify what speed limit psychologists should follow. In this hypothetical and admittedly absurd example it would be appropriate to respond by saying: “that information is easily found and need not be included in the referendum - it is not for us to say”. We would ask why would psychologists attempt to define torture when they could simply refer to internationally accepted definitions?

Q. I understand this referendum, but doesn’t this seem a little simple? Why have you chosen to write this in such ordinary language?

A. Two reasons:

1.           We wanted the referendum be easily read and understandable by everyone.

2.           Because the Bush administration has redefined everyday terms in ways that completely subvert the original meanings of the words. Take, for example, ‘participation’:

“For purposes of this recommendation the term “participating in interrogations” refers to the active participation by medical personnel during an interrogation. For example, asking questions would be active participation. Medical personnel who assist in developing the plan of interrogation are not deemed to be “participating in an interrogation.” Likewise, actual presence in the interrogation room may not constitute “participating in an interrogation.” For example, direct observation by medical personnel to ensure the health and welfare of the detainee is not deemed to be “participation in the interrogation.” (  http://www.defenselink.mil/news/detainee_investigations.html )

Further, we know that many of these definitions - including the current definition of torture - are secret.  We do not know what other terms have been secretly redefined.  Thus, rather than engage in an effort to define each word we were using, we chose language that is easily understood with use of a dictionary or the references we provide.

Entry Filed under: APA, Constitutional Law, Guantanamo, International Law, Interrogation, Law, Psychology, Torture