Psyche, Science, and Society

American Psychological Association removes infamous “Nuremberg Defense” from ethics code, leaves other ethics loopholes

Last week, the American Psychological Association (APA) finally revised its ethics code so that it no longer contained the so-called “Nuremberg Defense,” allowing dispensing with professional ethics when they conflicted with “law, regulations, other governing legal authority.” This clause was added in 2002, at the heyday of the Bush administration.  APA dissidents, retired military personnel, ethicists,and human rights advocates have long pushed for its removal.

A number of military psychologists who served in or trained the Behavioral Science Consultation Team at Guantanamo (BSCT) had opposed change in this code. Not coincidentally, this section had been emphasized in the instructions for the BSCTs and in the APA’s report of the 2005 task force on Psychological Ethics and National Security (PENS) where the APA let military-intelligence psychologists create ethics policy for the association.

The ethics code 1.02 has stated since 2002:

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. If the conflict is unresolvable via such means, psychologists may adhere to the requirements of the law, regulations, or other governing legal authority.

When the change goes into effect in June, this clause will essentially revert to the pre-2002 wording:

If psychologists’ ethical responsibilities conflict with law, regulations, or other governing legal authority, psychologists clarify the nature of the conflict, make known their commitment to the Ethics Code and take reasonable steps to resolve the conflict consistent with the General Principles and Ethical Standards of the Ethics Code. Under no circumstances may this standard be used to justify or defend violating human rights

The removal should be a cause for celebration. However, like every change in APA’s policies on psychologists providing interrogation support, this change is too little too late. APA leadership waited till over a year after the end of the Bush regime and its “enhanced interrogation” torture program before changing this clause which provided protection for psychologists aiding the torturers. While the Justice Department’s OLC torture memos provided legal protection, the APA policy complemented that protection by providing protection from future charges that psychologists aiding detainee abuse violated professional ethics.

While the infamous 1.02 is gone from the ethics code, the less well known but equally disturbing section 8.05 governing research without informed consent is still there. It allows dispensing with informed consent, the bedrock of professional ethics, whenever “law or federal or institutional regulations” say it is OK:

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 participants’ employability, and confidentiality is protected or (2) where otherwise permitted by law or federal or institutional regulations. [emphasis added]

Thus, research on detainees would be acceptable as long as institutional regulations (from the CIA or Defense Department, say) gave permission.

If the APA were really interested in removing loopholes in the ethics code, they would have changed this clause without prodding. I have been calling for change in this and another problematic research ethics clause for years. Unfortunately, the battle to remove loopholes in the ethics code allowing abuse will continue into the indefinite future.

March 1st, 2010

Rubenstein-Xenakis: Doctors Without Morals

In a New York Times Op Ed, Leonard Rubenstein and Brig. Gen.  [ret] Stephen Xenakis discuss the contrast between the investigation of the torture lawyers and the lack of any investigation of the torture physicians and psychologists:

Doctors Without Morals

By Leonard S. Rubenstein and Stephen N. Xenakis

After five years of investigation, the Justice Department has released its findings regarding the government lawyers who authorized waterboarding and other forms of torture during the interrogation of suspected terrorists at Guantánamo Bay and elsewhere. The report’s conclusion, that the lawyers exercised poor judgment but were not guilty of professional misconduct, is questionable at best. Still, the review reflects a commitment to a transparent investigation of professional behavior.

In contrast, the government doctors and psychologists who participated in and authorized the torture of detainees have escaped discipline, accountability or even internal investigation.

It is hardly news that medical staff at the C.I.A. and the Pentagon played a critical role in developing and carrying out torture procedures. Psychologists and at least one doctor designed or recommended coercive interrogation methods including sleep deprivation, stress positions, isolation and waterboarding. The military’s Behavioral Science Consultation Teams evaluated detainees, consulted their medical records to ascertain vulnerabilities and advised interrogators when to push harder for intelligence information.

Psychologists designed a program for new arrivals at Guantánamo that kept them in isolation to “enhance and exploit” their “disorientation and disorganization.” Medical officials monitored interrogations and ordered medical interventions so they could continue even when the detainee was in obvious distress. In one case, an interrogation log obtained by Time magazine shows, a medical corpsman ordered intravenous fluids to be administered to a dehydrated detainee even as loud music was played to deprive him of sleep.

When the C.I.A.’s inspector general challenged these “enhanced interrogation” methods, the agency’s Office of Medical Services was brought in to determine, in consultation with the Justice Department, whether the techniques inflicted severe mental pain or suffering, the legal definition of torture. Once again, doctors played a critical role, providing professional opinions that no severe pain or suffering was being inflicted.

According to Justice Department memos released last year, the medical service opined that sleep deprivation up to 180 hours didn’t qualify as torture. It determined that confinement in a dark, small space for 18 hours a day was acceptable. It said detainees could be exposed to cold air or hosed down with cold water for up to two-thirds of the time it takes for hypothermia to set in. And it advised that placing a detainee in handcuffs attached by a chain to a ceiling, then forcing him to stand with his feet shackled to a bolt in the floor, “does not result in significant pain for the subject.”

The service did allow that waterboarding could be dangerous, and that the experience of feeling unable to breathe is extremely frightening. But it noted that the C.I.A. had limited its use to 12 applications over two sessions within 24 hours, and to five days in any 30-day period. As a result, the lawyers noted the office’s “professional judgment that the use of the waterboard on a healthy individual subject to these limitations would be ‘medically acceptable.’”

The medical basis for these opinions was nonexistent. The Office of Medical Services cited no studies of individuals who had been subjected to these techniques. Its sources included a wilderness medical manual, the National Institute of Mental Health Web site and guidelines from the World Health Organization.

The only medical source cited by the service was a book by Dr. James Horne, a sleep expert at Loughborough University in Britain; when Dr. Horne learned that his book had been used as a reference, he said the C.I.A. had distorted his findings and misrepresented his research, and that its conclusions on sleep deprivation were nonsense.

Dr. Horne had used healthy volunteers who were subject to no other stresses and could withdraw at any time, while C.I.A. and Pentagon interrogators used a broad array of stresses in combination on the detainees. Sleep deprivation, he said, mixed with pain-inducing positioning, intimidation and a host of other stresses, would probably exhaust the body’s defense mechanisms, cause physical collapse and worsen existing illness. And that doesn’t begin to acknowledge the dire psychological consequences.

The shabbiness of the medical judgments, though, pales in comparison to the ethical breaches by the doctors and psychologists involved. Health professionals have a responsibility extending well beyond nonparticipation in torture; the historic maxim is, after all, “First do no harm.” These health professionals did the polar opposite.

Nevertheless, no agency — not the Pentagon, the C.I.A., state licensing boards or professional medical societies — has initiated any action to investigate, much less discipline, these individuals. They have ignored the gross and appalling violations by medical personnel. This is an unconscionable disservice to the thousands of ethical doctors and psychologists in the country’s service. It is not too late to begin investigations. They should start now.

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Leonard S. Rubenstein is a visiting scholar at the Johns Hopkins Bloomberg School of Public Health. Stephen N. Xenakis is a psychiatrist and a retired Army brigadier general.

March 1st, 2010