Psyche, Science, and Society

NYT: Investigate those who planned abuse

The New York Times editorializes today that Obama should appoint a an independent counsel to investigate crimes by the Bush administration in its torture program:

A prosecutor should be appointed to consider criminal charges against top officials at the Pentagon and others involved in planning the abuse.

Unfortunately, the Times joins those who don’t actually expect Obama to carry out his duty.

Given his other problems — and how far he has moved from the powerful stands he took on these issues early in the campaign — we do not hold out real hope that Barack Obama, as president, will take such a politically fraught step.

We shouldn’t give up so easily before the struggle has even begun. We must keep the pressure on.

Here is the complete editorial:

The Torture Report

New York Times Editorial

Most Americans have long known that the horrors of Abu Ghraib were not the work of a few low-ranking sociopaths. All but President Bush’s most unquestioning supporters recognized the chain of unprincipled decisions that led to the abuse, torture and death in prisons run by the American military and intelligence services.

Now, a bipartisan report by the Senate Armed Services Committee has made what amounts to a strong case for bringing criminal charges against former Defense Secretary Donald Rumsfeld; his legal counsel, William J. Haynes; and potentially other top officials, including the former White House counsel Alberto Gonzales and David Addington, Vice President Dick Cheney’s former chief of staff.

The report shows how actions by these men “led directly” to what happened at Abu Ghraib, in Afghanistan, in Guantánamo Bay, Cuba, and in secret C.I.A. prisons.

It said these top officials, charged with defending the Constitution and America’s standing in the world, methodically introduced interrogation practices based on illegal tortures devised by Chinese agents during the Korean War. Until the Bush administration, their only use in the United States was to train soldiers to resist what might be done to them if they were captured by a lawless enemy.

The officials then issued legally and morally bankrupt documents to justify their actions, starting with a presidential order saying that the Geneva Conventions did not apply to prisoners of the “war on terror” — the first time any democratic nation had unilaterally reinterpreted the conventions.

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That order set the stage for the infamous redefinition of torture at the Justice Department, and then Mr. Rumsfeld’s authorization of “aggressive” interrogation methods. Some of those methods were torture by any rational definition and many of them violate laws and treaties against abusive and degrading treatment.

These top officials ignored warnings from lawyers in every branch of the armed forces that they were breaking the law, subjecting uniformed soldiers to possible criminal charges and authorizing abuses that were not only considered by experts to be ineffective, but were actually counterproductive.

One page of the report lists the repeated objections that President Bush and his aides so blithely and arrogantly ignored: The Air Force had “serious concerns regarding the legality of many of the proposed techniques”; the chief legal adviser to the military’s criminal investigative task force said they were of dubious value and may subject soldiers to prosecution; one of the Army’s top lawyers said some techniques that stopped well short of the horrifying practice of waterboarding “may violate the torture statute.” The Marines said they “arguably violate federal law.” The Navy pleaded for a real review.

The legal counsel to the chairman of the Joint Chiefs of Staff at the time started that review but told the Senate committee that her boss, Gen. Richard Myers, ordered her to stop on the instructions of Mr. Rumsfeld’s legal counsel, Mr. Haynes.

The report indicates that Mr. Haynes was an early proponent of the idea of using the agency that trains soldiers to withstand torture to devise plans for the interrogation of prisoners held by the American military. These trainers — who are not interrogators but experts only on how physical and mental pain is inflicted and may be endured — were sent to work with interrogators in Afghanistan, in Guantánamo and in Iraq.

On Dec. 2, 2002, Mr. Rumsfeld authorized the interrogators at Guantánamo to use a range of abusive techniques that were already widespread in Afghanistan, enshrining them as official policy. Instead of a painstaking legal review, Mr. Rumsfeld based that authorization on a one-page memo from Mr. Haynes. The Senate panel noted that senior military lawyers considered the memo “ ‘legally insufficient’ and ‘woefully inadequate.’ ”

Mr. Rumsfeld rescinded his order a month later, and narrowed the number of “aggressive techniques” that could be used at Guantánamo. But he did so only after the Navy’s chief lawyer threatened to formally protest the illegal treatment of prisoners. By then, at least one prisoner, Mohammed al-Qahtani, had been threatened with military dogs, deprived of sleep for weeks, stripped naked and made to wear a leash and perform dog tricks. This year, a military tribunal at Guantánamo dismissed the charges against Mr. Qahtani.

The abuse and torture of prisoners continued at prisons run by the C.I.A. and specialists from the torture-resistance program remained involved in the military detention system until 2004. Some of the practices Mr. Rumsfeld left in place seem illegal, like prolonged sleep deprivation.

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These policies have deeply harmed America’s image as a nation of laws and may make it impossible to bring dangerous men to real justice. The report said the interrogation techniques were ineffective, despite the administration’s repeated claims to the contrary.

Alberto Mora, the former Navy general counsel who protested the abuses, told the Senate committee that “there are serving U.S. flag-rank officers who maintain that the first and second identifiable causes of U.S. combat deaths in Iraq — as judged by their effectiveness in recruiting insurgent fighters into combat — are, respectively, the symbols of Abu Ghraib and Guantánamo.”

We can understand that Americans may be eager to put these dark chapters behind them, but it would be irresponsible for the nation and a new administration to ignore what has happened — and may still be happening in secret C.I.A. prisons that are not covered by the military’s current ban on activities like waterboarding.

A prosecutor should be appointed to consider criminal charges against top officials at the Pentagon and others involved in planning the abuse.

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Given his other problems — and how far he has moved from the powerful stands he took on these issues early in the campaign — we do not hold out real hope that Barack Obama, as president, will take such a politically fraught step.

At the least, Mr. Obama should, as the organization Human Rights First suggested, order his attorney general to review more than two dozen prisoner-abuse cases that reportedly were referred to the Justice Department by the Pentagon and the C.I.A. — and declined by Mr. Bush’s lawyers.

Mr. Obama should consider proposals from groups like Human Rights Watch and the Brennan Center for Justice to appoint an independent panel to look into these and other egregious violations of the law. Like the 9/11 commission, it would examine in depth the decisions on prisoner treatment, as well as warrantless wiretapping, that eroded the rule of law and violated Americans’ most basic rights. Unless the nation and its leaders know precisely what went wrong in the last seven years, it will be impossible to fix it and make sure those terrible mistakes are not repeated.

We expect Mr. Obama to keep the promise he made over and over in the campaign — to cheering crowds at campaign rallies and in other places, including our office in New York. He said one of his first acts as president would be to order a review of all of Mr. Bush’s executive orders and reverse those that eroded civil liberties and the rule of law.

That job will fall to Eric Holder, a veteran prosecutor who has been chosen as attorney general, and Gregory Craig, a lawyer with extensive national security experience who has been selected as Mr. Obama’s White House counsel.

A good place for them to start would be to reverse Mr. Bush’s disastrous order of Feb. 7, 2002, declaring that the United States was no longer legally committed to comply with the Geneva Conventions.

December 18th, 2008

Psychiatric diagnostic manual revision spawns controversy

The New York Times covers the controversy around the revision of the American Psychiatric Association’s official diagnostic manual. For the first time, participants were required to sign a nondisclosure agreement.  Perhaps the psychiatric association hopes to hide the extent to which their deliberations are driven by the exigencies of the pharmaceutical industry. In the past, studies have shown that the majority of developers of the manuals were paid as consultants to the drug companies. Not surprisingly, critics have complained that the diagnostic categories have been influenced more than they should be the desire of these companies to sell drugs for virtually every human condition.

It is already outrageous that the official diagnostic manual is developed by only one of the mental health professions. and it is a profession in which the average member receives liitle or no training in psychotherapy, no training in research design and methods, and a profession with all too many scandals of top researchers hiding tens or hundreds of thousands of dollars in drug company consulting fees. Thus, the manual is largely designed to promote the idea of biologically-based “illnesses” requiring biological (often pharmacological) treatment, administered by medical doctor psychiatrists. Psychotherapy and other treatments administered largely by social workers, psychologists, psychoanalysts, and counselors are treated largely as ancillary to the “real” pharmacological treatment. This view is a perversion of the research base which is increasingly showing psychotherapy as having good outcomes for many conditions considered “biologically based” by the DSM.

Nondisclosure is yet an additional effort to stifle serious dialog and debate as to the real nature of psychological problems and their appropriate treatment.

Here is the Times article:

Psychiatrists Revising the Book of Human Troubles
By Benedict Carey

The book is at least three years away from publication, but it is already stirring bitter debates over a new set of possible psychiatric disorders.

Is compulsive shopping a mental problem? Do children who continually recoil from sights and sounds suffer from sensory problems — or just need extra attention? Should a fetish be considered a mental disorder, as many now are?

Panels of psychiatrists are hashing out just such questions, and their answers — to be published in the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders — will have consequences for insurance reimbursement, research and individuals’ psychological identity for years to come.

The process has become such a contentious social and scientific exercise that for the first time the book’s publisher, the American Psychiatric Association, has required its contributors to sign a nondisclosure agreement.

The debate is particularly intense because the manual is both a medical guidebook and a cultural institution. It helps doctors make a diagnosis and provides insurance companies with diagnostic codes without which the insurers will not reimburse patients’ claims for treatment.

The manual — known by its initials and edition number, DSM-V — often organizes symptoms under an evocative name. Labels like obsessive-compulsive disorder have connotations in the wider culture and for an individual’s self-perception.

“This is not cardiology or nephrology, where the basic diseases are well known,” said Edward Shorter, a leading historian of psychiatry whose latest book, “Before Prozac,” is critical of the manual. “In psychiatry no one knows the causes of anything, so classification can be driven by all sorts of factors” — political, social and financial.

“What you have in the end,” Mr. Shorter said, “is this process of sorting the deck of symptoms into syndromes, and the outcome all depends on how the cards fall.”

Psychiatrists involved in preparing the new manual contend that it is too early to say for sure which cards will be added and which dropped.

The current edition of the manual, which was published in 2000, describes 283 disorders — about triple the number in the first edition, published in 1952.

The scientists updating the manual have been meeting in small groups focusing on categories like mood disorders and substance abuse — poring over the latest scientific studies to clarify what qualifies as a disorder and what might distinguish one disorder from another. They have much more work to do, members say, before providing recommendations to a 28-member panel that will gather in closed meetings to make the final editorial changes.

Experts say that some of the most crucial debates are likely to include gender identity, diagnoses of illness involving children, and addictions like shopping and eating.

“Many of these are going to involve huge fights, I expect,” said Dr. Michael First, a professor of psychiatry at Columbia who edited the fourth edition of the manual but is not involved in the fifth.

One example, Dr. First said, is binge eating, now in the manual’s appendix as a tentative category.

“A lot of people want that included in the manual,” Dr. First said, “and there’s some research out there, some evidence that drugs are helpful. But binge eating is also a normal behavior, and you run the risk of labeling up to 30 percent of people with a disorder they don’t really have.”

The debate over gender identity, characterized in the manual as “strong and persistent cross-gender identification,” is already burning hot among transgender people. Soon after the psychiatric association named the group of researchers working on sexual and gender identity, advocates circulated online petitions objecting to two members whose work they considered demeaning.

Transgender people are themselves divided about their place in the manual. Some transgender men and women want nothing to do with psychiatry and demand that the diagnosis be dropped. Others prefer that it remain, in some form, because a doctor’s written diagnosis is needed to obtain insurance coverage for treatment or surgery.

“The language needs to be reformed, at a minimum,” said Mara Keisling, executive director of the National Center for Transgender Equity. “Right now, the manual implies that you cannot be a happy transgender person, that you have to be a social wreck.”

Dr. Jack Drescher, a New York psychoanalyst and member of the sexual disorders work group, said that, in some ways, the gender identity debate echoed efforts to remove homosexuality from the manual in the 1970s.

After protests by gay activists provoked a scientific review, the “homosexuality” diagnosis was dropped in 1973. It was replaced by “sexual orientation disturbance” and then “ego-dystonic homosexuality” before being dropped in 1987.

“You had, in my opinion, what was a social issue, not a medical one; and, in some sense, psychiatry evolved through interaction with the wider culture,” Dr. Drescher said.

The American Psychiatric Association says the contributors’ nondisclosure agreement is meant to allow the revisions to begin without distraction and to prevent authors from making deals to write casebooks or engage in other projects based on the deliberations without working through the association.

In a phone interview, Dr. Darrel A. Regier, the psychiatric association’s research director, who with Dr. David Kupfer of the University of Pittsburgh is co-chairman of the task force, said that experts working on the manual had presented much of their work in scientific conferences.

“But you need to synthesize what you’re doing and make it coherent before having that discussion,” Dr. Regier said. “Nobody wants to put a rough draft or raw data up on the Web.”

Some critics, however, say the secrecy is inappropriate.

“When I first heard about this agreement, I just went bonkers,” said Dr. Robert Spitzer, a psychiatry professor at Columbia and the architect of the third edition of the manual. “Transparency is necessary if the document is to have credibility, and, in time, you’re going to have people complaining all over the place that they didn’t have the opportunity to challenge anything.”

Scientists who accepted the invitation to work on the new manual — a prestigious assignment — agreed to limit their income from drug makers and other sources to $10,000 a year for the duration of the job. “That’s more conservative” than the rules at many agencies and universities, Dr. Regier said.

This being the diagnostic manual, where virtually every sentence is likely to be scrutinized, critics have said that the policy is not strict enough. They have long suspected that pharmaceutical money subtly influences authors’ decisions.

Industry influence was questioned after a surge in diagnoses of bipolar disorder in young children. Once thought to affect only adults and adolescents, the disorder in children was recently promoted by psychiatrists on drug makers’ payrolls.

The team working on childhood disorders is expected to debate the merits of adding pediatric bipolar as a distinct diagnosis, experts say. It is also expected to discuss whether Asperger’s syndrome, a developmental disorder, should be merged with high-functioning autism. The two are virtually identical, but bear different social connotations.

The same team is likely to make a recommendation on so-called sensory processing disorder, a vague label for a poorly understood but disabling childhood behavior. Parent groups and some researchers want recognition in the manual in order to help raise money for research and obtain insurance coverage of expensive treatments.

“I know that some are pushing very hard to get that in,” Dr. First said, “and they believe they have been warmly received. But you just never know for sure, of course, until the thing is published.”

In all, it is a combination of suspense, mystery and prepublication controversy that many publishers would die for. The psychiatric association knows it has a corner on the market and a blockbuster series. The last two editions sold more than 830,000 copies each.

December 18th, 2008

Accountability: Markovic — Investigate torture lawyers

Milan Markovic argues in Slate that John Yoo and the other torture lawyers can, and should, be prosecuted:

Lawyers Aren’t Special
Why it’s legitimate to investigate the Bush lawyers who may have approved war crimes

By Milan Markovic

John Yoo and other lawyers who were involved in developing the Bush administration’s interrogation policies have been roundly criticized for the shoddy and controversial nature of their legal advice. And yet even some of the critics have rejected the notion that Yoo and his former colleagues should be investigated for their role in the commission of torture and other war crimes. Writing recently in the Washington Post, Jack Goldsmith, the lawyer (and now law professor) who repudiated much of Yoo’s work at the Office of the Legal Counsel, dismissed calls for further probes for fear that government lawyers would become excessively cautious in offering legal advice. The country is better served by moving on, Goldsmith suggested.

Lawyers are often asked to offer their views on complicated questions with significant real-world consequences, and the idea that offering the wrong answer could implicate an attorney in criminal wrongdoing is a frightening prospect to many in the profession. It is not surprising, therefore, that lawyers are reluctant to condemn fellow lawyers on the basis of the advice that they give.

But attorneys are hardly the only ones who must make difficult decisions in times of war. American soldiers, under the Uniform Code of Military Justice, are duty-bound to obey only lawful orders. Indeed, since the Nuremberg trials, it has been a fundamental precept of international law that soldiers must disobey orders to commit war crimes. If soldiers are supposed to differentiate between lawful and unlawful orders, why should lawyers, who are trained to know the law, have the privilege of never being held accountable if they advise unlawful conduct?

That stance seems especially unwarranted since lawyers can offer legal advice in such a way as to account for differing points of view when addressing controversial legal issues. In fact, lawyers are mandated to at least consider opposing points of view. They may, moreover, refer to moral and political considerations when advising clients, not purely legal ones. And yet John Yoo and other administration attorneys wrote one-sided arguments about crucial aspects of the coercive interrogation policy. It is perfectly legitimate to ask, given the controversial nature of their conclusions and the importance of their work, why they crafted their arguments in the way that they did.

The United States used to not only investigate attorneys for their role in the perpetuation of war crimes—it used to prosecute them. After World War II, as part of the Nuremberg trials, the United States prosecuted 16 German attorneys and judges for war crimes and crimes against humanity for their role in implementing the “Night and Fog” decree. Three of the defendants in the so-called “Justice Case” held positions in the Ministry of Justice and directly advised the justice minister. These attorneys also drafted laws and rules for the administration of German-occupied lands and the operations of certain special courts. Many of these laws—and the courts themselves—ran afoul of the Geneva Conventions. The German lawyers argued, in their defense, that the Conventions did not apply because their enemies did not subscribe to them. They were ultimately convicted of war crimes and were each sentenced to 10 years in prison. (A more complete discussion of these cases is available here.)

The crimes with which Yoo and others are alleged to have been involved are clearly not of the magnitude of those in wartime Germany. Another key difference between the convicted German attorneys and the Bush lawyers is that the former specifically authorized the commission of war crimes. Nevertheless, British jurist Philippe Sands has plausibly alleged that Yoo and others went beyond advising and specifically approved certain interrogation tactics for use at Guantanamo Bay. Without knowing the full details of the interrogation program, it seems premature to conclude, as Attorney General Michael Mukasey apparently has, that Yoo and others were simply attempting to answer difficult questions about interrogation policy.

We have domestic cases on the books that allow for an attorney to be found criminally liable solely for the legal advice he offers to a client. In 1919, in Firpo v. United States, the United States Court of Appeals for the 2^nd Circuit instructed: “To advise a client to commit an act which is a crime makes the lawyer an accomplice and at common law he would be an accessory.” Georgetown law professor David Luban has noted an analogous recent precedent from the 7^th Circuit, in which an attorney’s disruptive litigation tactics implicated him in criminal wrongdoing.

Firpo involved an attorney who was charged as an accomplice in the desertion of a young soldier. The lawyer had advised the soldier to leave New York to live with relatives while he worked to secure the soldier’s release on the grounds that the soldier had been too young to enlist. The 2^nd Circuit ultimately reversed the attorney’s conviction because the prosecution had not proved that the attorney was aware that the soldier was already a deserter when he advised the soldier to flee—the lawyer’s knowledge mattered for criminal culpability. But the court as a whole agreed that the key consideration was whether the attorney’s advice was intended to assist the soldier in violating the law. It is certainly possible to see the work of Yoo and others in this light—as legal cover for interrogators.

Goldsmith worries that if they fear criminal sanction, government lawyers will shy away from offering potentially controversial legal advice when novel issues arise. But that would misread the role of a government lawyer. Nor is the fear of political division sufficient reason to dismiss the idea of an investigation as counterproductive. If allegations of torture and other crimes against Yoo and other lawyers are handled soberly and responsibly, there is the possibility that the United States will not only be able to heal internal divisions regarding the war on terror but will earn much-needed good will from abroad. Lawyers should be leading the call for a full investigation, not seeking amnesty for their peers before any meaningful attempt to determine the scope of their misconduct.

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Milan Markovic was formerly a law clerk in the Chambers of the International Criminal Court in the Hague, Netherlands.

December 18th, 2008

Senator Levin on bush administration torture

Rachel Maddow interviews Senate Armed Services Committee Chair Carl Levin on Bush administration torture and accountability in the wake of last week’s SASC report. He endorses an independent “Truth” Commission, and does not rule out indictments of bush administration officials:

December 18th, 2008