[This is an expanded version of my earlier post, now distributed as an article to CounterPunch and elsewhere.]
If all goes well, Iceland may be about to make history. No, I don’t mean the refusal of the populace to get saddled with Iceland’s $5 billion bad “Icesave” bank debt. Rather, I’m referring to the Icelandic Modern Media Initiative [IMMI], which combines the world’s best legislation to protect press and information freedom into one path-breaking information freedom bill for Iceland.
IMMI attempts to tip the world balance toward press freedom by setting up Iceland as a Mecca of press and information freedom. Key provisions of the IMMI include: whistleblower protections; strong protections for anonymous sources and the journalists and media organizations who deal with them; a strengthening of protections against prior restraint by governments or through use of the courts; and protection for Internet Service Providers [ISPs], preventing them from being held responsible for information passing through their networks.
IMMI also includes provisions against the use of lawsuits to suppress information. Thus, under IMMI, Iceland would not enforce foreign judgments against ISPs and media organizations based in Iceland. Further, Icelandic-based organizations would have the right to file counter-suits in Iceland against attempts to suppress their free speech in other countries.
Additionally contained in IMMI are protections against misuses of court processes to suppress speech, allowing judges to decide that an issue before the court involves freedom of speech and thus trigger protections before those being sued are coerced into settling cases or submitting to abusive subpoenas due to inadequate resources to defend themselves.
If IMMI passes, Iceland’s actions could affect press freedoms elsewhere. Iceland’s internet servers would become available to reporters and bloggers around the world. These servers could hold documents and reports that governments or corporations are attempting to suppress and would come under Icelandic protections. The right to countersue against attempts at suppressing free speech elsewhere will provide some protection for journalists and media organizations in other countries used Icelandic servers.. While there is no guarantee that the right to countersue will deter all abuses, in many cases the threat of litigation, or even criminal penalties, in Iceland will constrain those who might otherwise move to suppress information.
In other cases, attempts to suppress free expression, such as a subpoena seeking the identity of a confidential source in other countries would be in violation of Icelandic laws, providing reporters and other information providers with leverage in their own countries. Thus, a reporter under pressure to reveal a source could argue that these demands would place that reporter afoul of Icelandic law. Some courts may respect this claim, since they would be unable to guarantee immunity for the reporter.
The IMMI arose out of last summer’s outrage at efforts by a Icelandic bank to suppress television reporting on a document leaked to Wikileaks — the internet haven for leaked documents — regarding the bank’s questionable financial dealings. Icelanders were outraged that their television station was enjoined from reporting on a document that was freely available on the web.
Wikileaks editors Julian Assange and Daniel Schmitt originally spearheaded the creation of IMMI and have moved to Iceland to help secure its passage. Wikileaks is well aware of the dangers of censorship as banks and several countries, including Australia and South Africa, have attempted to censor materials posted on Wikileaks. If IMMI passes, Iceland would become the perfect environment for Wikileaks to base its servers. Other media and information providers will likely follow suit and base their servers in Iceland to take advantage of its new protections.
IMMI thus could be a boon to Iceland’s economy, making it a center of the new information economy. But IMMI, because of its strong assist to transparency efforts like Wikileaks, also is seen by many Icelanders as a critical tool in preventing the next economic collapse through shedding light on murky questionable financial and other corporate dealings. As parliamentarian Birgitta Jónsdóttir stated:
“The collapse woke up the nation and by rallying together we pushed through historical changes. The government was forced to resign, the central bank manager was forced to resign, the head of the financial supervisory authority was forced to resign. The people of Iceland realized that by joining forces real change could and would take place.
“People woke up to the fact that the infrastructure they had put their trust in, had failed. Our academics, the government, the parliament, the central bank, and the media had all failed. It made us understand that the media was weak, that there was a lack of transparency and that in order to live in a healthy society, we had take part in shaping it.
“We have come to understand that fundamental changes need to take place to strengthen our democracy and that a new legislative package is needed to that promotes transparency and political accountability.
“Because the world is connected by financial and information flows, suppression of the truth is not only our problem, but everyone’s problem. The right of the people to understand what is happening to their societies needs to be strengthened. I believe in supporting the world’s most courageous journalists and writers with the best legislation possible. That is why I am proud to be a part of the Icelandic Modern Media Initiative”
IMMI was introduced into parliament February 17 by 19 parliamentary representatives from all parties in parliament, almost a third of the 63 MPs. It will be voted on in April or May of this year. Passage will constitute one of the most important blows for democracy and transparency anywhere in years. It will also be a rare rebuke to the growing power of corporations and governments to restrict information flow world-wide.
David Cole, in a New York Review of Booksblog post, raises an issue missing in most commentary on the OPR report, that responsibility for providing cover for the Bush administration torture program extends far beyond John Yoo and Jay Bybee. Their successors at the Office of Legal Counsel, while sanctimoniously criticizing their slipshod legal reasoning, similarly applied their legal skills to justify hitherto illegal activities.
Cole suggests that both OPR and David Margolis ignored the question as to whether the torture memos arrived at the correct conclusion — that torture was legal — because to raise it posed danger to the other OLC torture lawyers, Jack Goldsmith, Daniel Levin, and Stephen Bradbury. Addressing the legality of torture also posed dangers to the Attorneys General who signed off on these decisions.
Thus, in essence, the OPR report, despite its condemnation of Yoo and Bybee, is a systematic cover-up of the torture lawyering providing protection for the torturers.
Here is the heart of Cole’s argument:
In a more fundamental sense, however, both the OPR and Margolis failed to confront the real wrong at issue. They focused exclusively on the manner by which Yoo and Bybee arrived at their result, rather than the result itself. What is most disturbing about the torture memos is not that they employ strained reasoning or fail to cite this or that authority, but that they do so in the name of authorizing torture and cruel, inhuman, and degrading treatment of human beings. Remarkably, neither the OPR nor Margolis directly considered the illegality of the conduct that was authorized by the memos. The OPR stated that it “did not attempt to determine and did not base our findings on whether…the Memos arrived at a correct result.” Margolis also did not address whether the conduct authorized was illegal. But surely that is the central issue.
Why, then, did the OPR and Margolis fail to take up the question of the legality of the brutality itself? Almost certainly because doing so would have implicated not only John Yoo and Jay Bybee, but all of the lawyers who approved these methods over the five-year course of their application, including, within the Justice Department, Jack Goldsmith, Daniel Levin, and Stephen Bradbury, Bybee’s successors as head of the Office of Legal Counsel, and the two attorneys general, John Ashcroft and Alberto Gonzales. Notwithstanding their criticism of Yoo’s errors, all of these men concurred with the basic conclusion of the Yoo and Bybee memos that the tactics being used by the CIA were legitimate.
Goldsmith, Levin, and Bradbury could have reversed the authority that Yoo and Bybee gave the CIA. They each actively participated in rewriting memos to replace or supplement the initial 2002 memos—but while the subsequent memos were written more carefully, they reached the same bottom line and continued to allow the CIA to inflict waterboarding, sleep deprivation, stress positions, and other illegal tactics on detainees.
Margolis sought to excuse Yoo and Bybee in part on the basis of the extraordinary circumstances in which they wrote their initial memos, within one year after September 11. It’s not clear why this consideration would warrant approval of torture. In any case, Yoo and Bybee’s successors in the Justice Department wrote their memos not in the heat of the moment, but after the program had been in place for years, and had been the subject of substantial criticism by the CIA’s own inspector general. He found, among other things, no evidence that the practices in fact obtained useful information that lawful, noncoercive tactics would not have obtained. Yet the OLC continued to approve of the practices.
Responsibility for the illegal brutality inflicted on CIA and Guantánamo detainees cannot be limited to Yoo and Bybee. It extends to all those who approved the tactics—even those so eager later to condemn Yoo’s reasoning. And unless we as citizens demand that these lawyers be held to answer for the wrongs done in our name, responsibility extends to all of us, too. We must continue to insist on accountability—whether in congressional hearings, citizens’ commissions, civil lawsuits, or the marketplace of ideas. The essential lesson must be that torture and cruel treatment are not policy options—even when a lawyer is willing to write an opinion blessing illegality.
Lt. Col. David Frakt, JAG attorney, finally comes clean about his al-Qaida sympathies:
Confessions of a terrorist sympathizer
A volunteer attorney for Guantanamo detainees comes clean: You got me, I’m shilling for al-Qaida
By David Frakt
What you might have seen: Last Thursday night, Rachel Maddowexposeda group of al-Qaida sympathizers who had served as lawyers on behalf of Guantánamo detainees, revealing that these pro-terrorist attorneys have not only taken over the Department of Jihad (previously known as the Department of Justice) but have even infiltrated our armed forces. One of the military lawyers identified on the broadcast was Air Force Reserve Lt. Col. David Frakt, who served as a defense lawyer for Guantánamo detainees in 2008 and 2009.
What you missed: On Friday, Lt. Col. Frakt agreed to an exclusive interview with Maddow. But shortly after the interview was taped, federal agents, sporting a secret warrant from the FISA Court, forced their way onto the set and confiscated the video footage, citing national security. Fortunately, one of the technicians secretly recorded the interview on his iPhone, which is how Salon obtained the following transcript:
Maddow: Lt. Col. David Frakt is a JAG officer in the U.S. Air Force Reserve and a law professor in California. Professor Frakt, welcome back to the program.
Frakt: Happy to be here, Rachel.
Maddow: Is it true that you’re a terrorist sympathizer?
Frakt: Yes, Rachel. That’s why, in 2008, I volunteered to represent detainees at Guantánamo. The chance to actually be a U.S. government-paid spokesperson for al-Qaida under the guise of “promoting fairness, justice and the rule of law” was just too delicious an opportunity to pass up. I figured the military commissions at Guantánamo would be the perfect soapbox for me to espouse my terrorist ideology.
Maddow: And did your position as a defense counsel give you the opportunities that you were seeking?
Frakt: Not exactly, Rachel. The whole experience was a bit disappointing. Initially, things looked very positive. The first detainee I was assigned to represent, Ali Hamza al Bahlul, was a member of Osama bin Laden’s inner circle and a very committed al-Qaida member. In fact, he has been frequently referred to as the al-Qaida minister of propaganda. So, I thought I’d hit the jackpot.
Maddow: So why didn’t it work out?
Frakt: Well, sadly, Mr. al Bahlul wouldn’t cooperate. He refused to let me represent him in court or speak on his behalf. He said he didn’t trust me because I was an American military officer. In fact, he basically boycotted the proceedings and ordered me to do the same. Can you believe that?
Maddow: That must have been very frustrating for you. Didn’t you also represent another client, a juvenile?
Frakt: Yes, I did represent another young Afghan named Mohammed Jawad, but he was a big disappointment also.
Maddow: How so?
Frakt: Well, as it turned out, he wasn’t a member of al-Qaida, or even the Taliban. In fact, he wasn’t a terrorist at all. He didn’t even know any terrorists! The only real consolation with Mohammed was that the United States had tortured him, so I was able to exploit that for substantial propaganda value, but otherwise, he was a dud.
Maddow: What happened to him?
Frakt: Unfortunately, after I proved that his confession was the product of torture and that he was innocent, he was ordered released by a federal judge. I’m pretty sure she is a terrorist sympathizer as well. In fact, your viewers may be interested to learn that all the judges on the Federal District Court bench in Washington are part of one big al-Qaida sleeper cell.
Maddow: How do you know this?
Frakt: Well, it’s obvious, Rachel. What other explanation is there for the fact that they’ve granted habeas corpus petitions and ordered the release of 33 detainees out of the 44 cases they’ve heard?
Maddow: Could it be that the government didn’t have sufficient evidence?
Frakt: Don’t be naive, Rachel. They’re obviously fellow al-Qaida sympathizers. The only reason they don’t let them all go is they don’t want to blow their cover.
Maddow: I see. One final question, professor Frakt. In your previous appearances on the program, you were in uniform; why aren’t you in uniform today?
Frakt: Well, after I actually won a case at Guantánamo, the Pentagon didn’t want to give me any more cases, so I was forced to leave active duty and return to my civilian position as a law professor.
Maddow: And how is that going?
Frakt: It’s not so bad. At least in this position, I can indoctrinate the impressionable young minds of the next generation of lawyers with my pro-terrorist views, while getting paid to churn out pro-terrorism “scholarship.” Academic freedom has its advantages, although I’m obviously opposed to it for those with differing viewpoints. If I didn’t have to grade papers, this would be the perfect job. Fortunately, I have teaching assistants for that.
Maddow: Well, we appreciate your taking the time to be on our program this evening.
Frakt: Any time, Rachel. I’m always glad to have any opportunity to advance my pro-terrorist agenda.
David Frakt is a lieutenant colonel in the Air Force Reserve who has defended Guantanamo detainees Mohammed Jawad and Ali Hamza al-Bahlul in front of military commissions.
I missed this at the time. Great. [Neal Katyal was attorney in the Hamdan case. Ge is now the Principal Deputy Solicitor General of the United States. He is one of the attorneys being smeared by Liz Cheney.]
Physicians for Human Rights has issued a statement on the American Psychological Association’s dropping of the infamous 1.02 “Nuremberg Defense” from its ethics code:
American Psychological Association Closes Loophole in Ethics Code, but More Code Reforms Needed
Media Contacts:
Stephen Greene sgreene [at] phrusa [dot] org 617-909-9160
Benjamin Greenberg bgreenberg [at] phrusa [dot] org
617-510-3417
Physicians for Human Rights (PHR) applauds last week’s action by the American Psychological Association (APA) amending section 1.02 of its 2002 code of professional ethics. Since 2006, PHR and the Coalition for Ethical Psychology have been campaigning for the APA to remove language from its ethics code allowing a psychologist to violate other provisions of the code if done to comply with “law, regulations, or other governing legal authority.” The new language restores the 1992 version of the code, which prohibits use of the standard “to justify or defend violating human rights.”"This move by the APA is an important step towards meaningful ethics reform, and PHR’s constituents and allies made it happen,” states Frank Donaghue, Chief Executive Officer of PHR. “However, the APA has more to do before its standards of professional ethics are fully restored.”
Section 1.02 was inserted into the APA ethics code in August 2002, and was used by both the APA and the Bush Administration to allow the participation of psychologists in the “enhanced interrogation” program, in which detainees were systematically abused and tortured under the supervision of health professionals. PHR is calling for the APA to also reform section 8.05 of the 2002 ethics code, which allows research on human subjects without their consent if such research comports with law or regulations.
I just posted an appeal for protest of the Washington Post’s hiring of torture promoter Mark Thiessen. In a Slatepiece today, former Air Force interrogator Matthew Alexander dissects Thiessen’s dangerous nonsense. Read Alexander’s article and then sign the Media Matters for America petition:
Courting Fear
A former military interrogator unpacks the errors and fear-mongering in Marc Thiessen’s Courting Disaster.
By Mattew Alexander
My gut reaction on reading Marc Thiessen’s new book, Courting Disaster, was: “Why is a speechwriter who’s never served in the military or intelligence community acting as an expert on interrogation and national security?” Certainly, everyone is entitled to a voice in the debate over the lawfulness and efficacy of President Bush’s abusive interrogation program, regardless of qualifications. But if you’re not an expert on a subject, shouldn’t you interview experts before expressing an opinion? Instead, Thiessen relies solely on the opinions of the CIA interrogators who used torture and abuse and are thus most vulnerable to prosecution for war crimes. That makes his book less a serious discussion of interrogation policy than a literary defense of war criminals. Nowhere in this book will you find the opinions of experienced military interrogators who successfully interrogated Islamic extremists. Not once does he cite Army Doctrine—which warns of the negative consequences of torture and abuse. Courting Disaster is nothing more than the defense’s opening statement in a war crimes trial.
While many of Thiessen’s opinions are appalling from a moral perspective (he justifies torture and abuse through the religious writings of St. Thomas Aquinas), the book is comprised of errors, omissions, and a whopping dose of fear-mongering. I’ll concentrate here on his worst misstatements and why his conclusions ultimately make us less safe.
First, Thiessen promulgates a theory that Islamic extremists are uniquely deserving of torture because they are doctrinally obligated to resist cooperating, after which they may disclose information. Of course this isn’t unique to Islamic extremists. The U.S. military’s own Code of Conduct and the resistance training given American soldiers impose the exact same requirements. Article V, pertaining to interrogations states: I will evade answering further questions to the utmost of my ability. Moreover, regardless of our enemy’s resistance philosophy, we have legal obligations to treat them humanely. If an American soldier is captured, would we want his obligation to resist turned into a justification that allows him to be water-boarded into cooperating?
Thiessen also asserts that Khalid Sheikh Mohammed was not rendered ineffective after his capture (and was still an active combatant) because he had knowledge of future attacks. The CIA was thus justified in torturing him. But every captured enemy has information of future plans or other valuable information about capabilities. Thiessen’s justification could be used to water-board everyone we capture. The standard for detainee treatment is not a sliding scale based on a particular captive’s knowledge. It’s a constant based on law and our principles.
Thiessen also argues that we will never know what other information we would have gotten out of KSM had we not used torture and abuse. But we do know. We need only examine the success of numerous professional interrogators against high-ranking members of al-Qaida. There is Eric Maddox, the U.S. Army interrogator who located Saddam Hussein (as told in his excellent book Mission: Black List #1).There is also Ali Soufan, the FBI agent who successfully interrogated Abu Zubaydah. In Iraq, my own team successfully interrogated many mid- and high-level leaders of al-Qaida while hunting Abu Musab Al Zarqawi. Serious interrogators have little doubt that we would have gotten better information from KSM, and sooner, had the interrogations been conducted by professional interrogators using noncoercive techniques.
Another mischaracterization in Courting Disaster is Thiessen’s claim that CIA water-boarding is identical to the water-boarding given American troops in training. Thiessen calls it “absurd” to believe we would torture our own troops. But if it were the same as the training given American troops, detainees would be told beforehand that it’s temporary and voluntary; they’d have a codeword to make it stop at any time; and be reassured that it would not harm them permanently. Real water-boarding—unlike resistance training—exploits the real fear of death. The detainee does not know when, or if, it will stop. This is no different than charging the slide of a pistol and pointing it at a prisoner’s head. The soldier holding the pistol may have taken precautions (removing the bullets from the magazine and/or getting the Justice Department to produce memos calling it legal), but it’s still illegal, as the military courts determined when an American soldier did just this in Afghanistan. Threatening prisoners with death or physical harm is torture. That’s precisely why the Geneva Conventions, the U.N. Conventions Against Torture, U.S. law, and military regulations prohibit it.
The many omissions from Thiessen’s book are also telling. For instance, in citing case law regarding water-boarding as torture, he fails to mention the case of a Texas sheriff and his deputies who were convicted and sentenced to four years in prison for water-boarding prisoners. (The John Yoo torture memos conveniently disregarded this precedent as well.) Thiessen states that water-boarding depicted at Tuol Sleng Prison in Cambodia is different because it involved dunking a prisoner’s head in a tub of water. But there is a painting at Tuol Sleng of a victim being tortured in the same position CIA interrogators used. For a man so obsessed with tiny details that define away and excuse torture, Thiessen should have caught a large detail that spotlights it.
Throughout his book, Thiessen comes back to a single argument: Abusing prisoners is acceptable because it saves lives. But Army regulations prohibit coercion without exception. Thiessen never bothers to cite military doctrine in his research. Had he read the Army Field Manual’s instructions, he would have to answer for the fact that it cautions:“Revelation of use of torture by US personnel will bring discredit upon the US and its armed forces while undermining domestic and international support for the war effort. It may also place US and allied personnel in enemy hands at greater risk of abuse by their captors.”Torture makes Americans less safe, not more so. The fact that al-Qaida would use Bush’s abusive interrogation policy to recruit new fighters was not a surprise that cropped up after Abu Ghraib and Guantanamo. It was anticipated and codified into Army doctrine long before.
Thiessen argues fatuously that KSM had to be water-boarded because another attack could have been imminent. Thiessen’s juvenile metaphor of KSM giving us the “cover of the puzzle box” to which we had only the pieces displays his ignorance about assembling intelligence clues. His source for this oversimplified view of the intelligence collection process? Michael Hayden, the former CIA director, who is at the top of the list of culpability for war crimes. We already knew what the “puzzle box cover” looked liked after the first World Trade Center bombing. In fact, military intelligence analysts knew what it looked like after the bombing of the Beirut barracks, Khobar Towers, the USS Cole, and the U.S. Embassies in Africa. We didn’t need the puzzle cover box. What we did need was the location of Osama Bin Laden, but KSM never gave that up. Every al-Qaida operational commander knows he can give up details already known by U.S. intelligence or information about operations below them and their organization will survive. Their objective is to protect those above them on the ladder, which KSM did astoundingly well. So much for the effectiveness of water-boarding.
Throughout this book, Thiessen argues that the number of detainees water-boarded is just three. He claims that because very few prisoners were ever subjected to enhanced interrogation techniques, we are not inquisitors. But we don’t know the exact numbers because there’s never been an independent commission to investigate. The best we can do is an FBI inspector general report released in May 2008 that found FBI agents witnessed hundreds of cases of torture and abuse in Iraq, Afghanistan, and Guantanamo Bay. Since FBI agents are only present for, at most, 3 percent of all interrogations, you can extrapolate that U.S. torture victims number in the thousands. That’s assuming we know all the prisons. The FBI I.G. report and other released documents suggest through their redactions that we do not, as does other recent journalistic reporting. Maybe our numbers are lower than the inquisition, but the law is blind to such metrics. After reading Thiessen’s insider revelations, we do know that the rationales were the same.
Thiessen and the torture apologists mock every American soldier who has followed the rules of law and ethical warfare. He insults every interrogator who has learned to elicit information without resorting to medieval abuses. The America that I know and signed up to defend does not stand exclusively for security. It also stands for freedom, justice, and liberty. It stands for universal rights afforded to every human being (even unlawful combatants or “detained persons”). America, as Thiessen surely has written into many a presidential speech, is a beacon of light precisely because it represents the protection of basic human rights. Yet, in Courting Disaster, Thiessen thoroughly villainizes those who defend individual rights against the state (such as members of the Center for Constitutional Rights). Thiessen’s ideology represents exactly what we are fighting against in the battle with Islamic extremism—the regression of human rights and the sacrifice of individual protections to the state.
Our current president is keeping us safe by denying al-Qaida the ability to recruit. President Obama, unlike Thiessen or his former boss, understands that you don’t win this conflict by stopping individual terrorist attacks. You win it by choking off the terrorists’ lifeblood: new fighters. We will never be able to measure how many American lives are saved because of President Obama’s leadership on this issue. But even if lives saved were the only justification for brutal interrogation, more Americans will be endangered by this experiment with torture than saved. This, like so many others, is a fact Thiessen conveniently ignores. Or, perhaps, his book has less to do with courting disaster than courting fear.
Former Bush speachwriter Mark Thiessen is making up stories again. Now, in a new book [please do not buy] and in numerous media appearances and speeches, he is promoting spurious claims that torture is essential to protect the country. Alas, the Washington Post has recently hired this torture promoter as an Op Ed columnist. Media Matters For America has launched a petition campaign to ask the Post to stop promoting war crimes on its pages.
Take Action Tell The Washington Post: Stop Promoting Torture
The Washington Post just hired Marc Thiessen, who now becomes the second former George W. Bush speechwriter-turned-columnist at the paper. Thiessen isn’t just any right-wing shill: he’s an unapologetic advocate for torture. And he isn’t alone. Charles Krauthammer, Michael Scheuer, and Richard Cohen have all used the editorial pages of the Post to defend torture.
How much longer can the Post give writers its pages as a platform to promote torture before it starts to look like the paper’s official position?
When the Post gives a platform to torture supporters, it shapes — and distorts — the national debate on security and human rights, especially if those advocates are making a misleading case. The paper must stop promoting torture — and they need to hear that from you.
In his book, and even on the pages of the Post, Marc Thiessen has repeatedly made dishonest and dubious statements in support of torture. For example:
1. He falsely claimed that, since CIA interrogation of terror suspects began after 9-11, there were no attacks by Al Qaeda on U.S. interests at home or abroad. (1)
2. He also claimed, falsely, that Bush oversaw “2,688 days without a terrorist attack on [American] soil,” ignoring the anthrax mail attacks, the El Al shooting in Los Angeles and other domestic terrorist attacks. (2)
3. In a Post op-ed, he called President Obama’s decision to release Bush administration torture memos “irresponsible” and claimed that “Americans may die as a result.” (2)
The Washington Post needs to be held accountable for the ethics of the writers it hires and features, especially on such a crucial issue. We need to let the Post know that giving a platform to dishonest advocates of torture is unacceptable. They must stop promoting torture.
In the Post, columnist Richard Cohen claimed that torture works and criticized the refusal to waterboard terrorists as naive, while columnist Krauthammer used his column to attack opponents of torture and promote Bush administration talking points.
But hiring Thiessen as a weekly columnist is a new low. Thiessen is not a reliable voice on national security, and the Post’s credibility will be hurt by Thiessen’s advocacy of inhumane and unnecessary torture techniques.
The Washington Post and editorial page editor Fred Hiatt need to say no to torture apologists, and stop promoting torture.
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.