Revising Anti-torture Statement to Reduce Influence of International Law
At the APA Convention this August, the Association's Peace Psychology Division introduced a resolution to reaffirm long-standing APA opposition to torture. At the same time, this Division and the Association's Divisions for Social Justice (a coalition of 10 divisions supporting social justice initiatives) declined to put forward a resolution banning psychologists' participation in coercive interrogations, at least partially out of concern that such a resolution would be defeated. Between the final draft version of the anti-torture resolution prepared by proponents and the version that was actually adopted and published, crucial wording defining proscribed behavior was changed in a subtle, but profound way.
The original Final Draft clearly defined torture and abuse using the United Nations Declaration and Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. It contained the following language:
The inclusion of this statement would seem to be a clear and unambiguous acceptance by the Association of international law and understandings as to what constitutes torture.
However, in the published version the following paragraph defining "cruel, inhuman, or degrading treatment of punishment" was added:
This all sounds relatively benign. But the phrase "United States Reservations" should raise one's interest. Just what are these Reservations and what are they doing in the Association's resolution? It turns out that, when the United States ratified this UN Convention, the U.S. government took steps to significantly reduce or even eliminate its potential impact. (Several countries, namely Sweden, the Netherlands, and Finland took exception to the U.S. Reservations at the time.) As I, a non-lawyer, read these Reservations, there are two potentially relevant clauses (Daily Kos diarist Valtin provides a somewhat different discussion of the impact of the second of these clauses but seems to have missed the first). The first of these clauses states:
That is, for behavior not rising to the level of "torture," U.S. ratification of this Convention did not make anything illegal that was not already illegal according to U.S. law. No international understandings will be binding. Interpretations of "cruel, inhuman, or degrading treatment of punishment" by other countries, by the United Nations, or by other international organizations and institutions are irrelevant. By this means, also, the U.S. made its obligations under the Convention subject to the vagaries of U.S. law in this area. If U.S. courts interpret U.S. law as constitutionally allowing a certain type of behavior, that behavior would then by definition not be banned by U.S. adherence to the Convention. As long as that behavior was not quite "torture," it wouldn't matter if it was proscribed by every other country on earth. Unfortunately, it is not at all clear that the "psychological torture" techniques used by U.S. interrogators are violations of the U.S. Constitution.
As John Shifton argued in a recent article in Slate (Criminal, Immunize Thyself: The Bush administration's get out of jail card for torturers; see also Marty Lederman: The CIA Cruelty Authorization Act of 2006), the Bush administration is currently pushing to amend the U.S. War Crimes Act to legalize all abusive behavior that fails to meet the legal definition of torture. The added paragraph in the Association resolution will thus pass any new immunity down to psychologists engaged in interrogations. As U.S. law changes with regard to "cruel, inhuman, or degrading treatment," so potentially will the ethical obligations of psychologists.
The second potentially relevant clause in the U.S. Reservations is concerned with limiting the definition of the most severe behaviors, those that are clearly proscribed by U.S. ratification of the UN Convention:
Interestingly for psychologists, this, the longest clause in the U.S. Reservations, is explicitly designed to circumscribe the definition of torture so as to exclude most psychological torture. With the exception of attempts to create a "profound" disruption of "senses or the personality" or of threats to self or others of death or severe physical pain, the prolonged mental harm has to arise from the infliction of "severe physical pain or suffering." Further, the requirement of "prolonged mental harm" allows for great interpretive creativity. If a person recovers in a year, or in five years, was the harm "prolonged?" Is it OK to subject resilient individuals to more severe treatment? Further, as psychologists should know well, proving that a given behavior was the cause of a given negative psychological outcome can prove difficult, if not impossible?
The clever phrasing of this Reservation makes sure that the types of psychological torture that have historically been employed by the CIA and have been utilized by the American military in Guanta'namo, Abu Ghraib, and elsewhere are not considered to be torture. (Alfred McCoy has detailed the critical role of psychologists in developing these techniques.) Thus, much of the treatment al-Dossari describes receiving or that described in the interrogation log for al-Qahtani would likely not be considered torture under this definition. In fact, it appears that, according to the US reservations, Saddam Hussein's technique of having a man's daughter raped in front of him would not constitute torture as long as the daughter didn't suffer severe physical pain.
If one reads the Association resolution very literally, it appears that this second Reservation may not apply to the resolution, as the document only includes the phrase "U.S. Reservations" in the section defining "cruel, inhuman, or degrading treatment or punishment." Thus, a lawyer might reasonably argue that these Reservations may not apply to the definition of torture and thus the exclusion of many forms of psychological torture may not apply. However, this interpretation is not certain. As Nat Hentoff points out, the recent McCain Amendment supposedly banning torture and cruel, inhuman, or degrading treatment provides that the standard applicable to accused interrogators is that a "person of ordinary sense and understanding would not know the practices were unlawful." Any aspects of the new resolution which muddy its interpretation increase the chances of such a successful defense. At a minimum, it is extremely disturbing that the Association would include in its resolution any reference to the U.S. Reservations, a document which attempts to protect the right to use psychological torture.
The Association's Press Release, entitled "American Psychological Association Reaffirms Unequivocal Position Against Torture and Abuse" states:
Unfortunately, as we have seen, this new Resolution is anything but an unequivocal position against torture and abuse. Further, "United Nations human rights documents," except in the most literal sense, were decidedly not the basis of the resolution's policy toward "cruel, inhuman, or degrading treatment." Not surprisingly, the Association's Military Psychology Division, which had reportedly succeeded in defeating a related resolution the previous year supported this one. Further, the Association's leadership, which has steadfastly acted to protect psychologists' participation in national security interrogations, threw no roadblocks in the path to passage of this resolution. Presumably they realized that the new resolution was, at best, an abstract and very equivocal public relations effort with little or no actual impact on interrogations.
Steven Reisner, an activist against involvement of psychologists in coercive national security interrogations who addressed the Association Council meeting on the issue, was mortified when he became aware of the addition of the U.S. Reservations to the resolution. He asserts that he and others at the Association Council meeting became aware of the absence of a definition of "cruel, inhuman, or degrading treatment" and that he, in consultation with others, drafted a "friendly amendment" tying the definition of these behaviors to the May 2006 report of the United Nations Committee Against Torture. When he tried to describe it to the Council, he was cut off by Association President Gerald Koocher, allegedly because he was not a Council member, even though he had earlier, by invitation, addressed the Council on the interrogation issue. Dr. Reisner then sought a Council member to introduce the amendment, but was turned down by three members.
As Dr. Reisner relates in an email, there was then a short break, "during which time a small group changed some minor wording based on the Council debate, which had focused on the words 'knowingly' and 'punishment.' During the break, the resolution was revised, a new version was typed up and printed, and placed on a table for people who wanted to read [it]. No one raised the idea of more specific definitions of CID ["cruel, inhuman, or degrading treatment"] and I thought the point was lost. The Council members reconvened, were told about additions of one 'knowingly' and two 'or punishment's. A vote was called and the resolution passed unanimously." Only later did Reisner discover to his horror that, apparently during that break, the resolution was revised by the addition of the U.S. Reservations, thus severely weakening it. A number of others involved in anti-torture efforts were similarly horrified.
Others associated with the development of the resolution from the leadership of the Association's Peace Division have asserted that the reference to the U.S. Reservations was included because the Reservations contain the only definition of "cruel, inhuman or degrading treatment or punishment" in international law. It appears that this absence may be intentional as some in the human rights community feel that there should not be an explicit definition of these behaviors. The Peace Division leadership has not explained how references to the American Constitution, which has been subject to over two hundred years of complex and ever changing interpretation provides any kind of clear definition for the resolution. They also have not explained why, if they valued clarity so much, they did not include a clear list of proscribed behaviors in the resolution.
Both the Association President, Gerald Koocher, and its Ethics Director, Stephen Behnke, have denied, in emails to me, having any knowledge of these revisions or any view as to their interpretation. Both declined to respond, claiming lack of knowledge, to explicit questions as to which of the clauses in the United States Reservations were relevant to interpreting the Association resolution. Both also denied any intent to weaken the prohibition against torture.
If they and other Association leaders are indeed correct that the inclusion of the U.S. Reservations does not weaken the Resolution and that the Association stands "unequivocally" against torture and abusive interrogation, they can demonstrate this by swiftly adopting new ethics code statements that specify exactly which interrogation techniques (e.g. waterboarding, sleep deprivation, loud music, heat and cold, exploitation of phobias, forced nudity, sexual abuse, etc.) are actually proscribed. If it was critical to include a definition of "cruel, inhuman or degrading treatment or punishment" in the resolution, then surely it is even more important to clearly state what is proscribed. If Association leaders refuse to issue such a list we should presume that the new resolution was just a public relations gambit and the U.S. Reservations were included to weaken, not to strengthen it.
While the Association Council overwhelmingly adopted the equivocal anti-torture resolution that makes no mention, in its text or in its Justification Statement, of the reports of psychologist participation in torture at Guanta'namo and elsewhere, only a few members of the Association Council were willing to stand up and propose a moratorium on psychologists' participation in national security interrogations. Without a bending of the rules, any such proposal now will require at least another year to be considered by the Association Council. At that point it will have been almost five years since psychologist Maj. Leso took part in the torture of Mohammed al-Qahtani, Detainee 063. The unwillingness of the Association leadership to unambiguously cut the ties to the torturers runs deep.
Distorting the Position of Other Organizations
As the criticism of the Association has mounted, its leadership has engaged in a concerted public relations effort. Allowing the passage at their recent Convention of the abstract and seriously weakened anti-torture resolution that made no mention of the claims of psychologist participation in abuses was one part of this effort. Another was the repeated claim that the Association's position did not substantively differ from that of the American Medical Association. This claim was asserted by Association President Gerald Koocher in a June 16, 2006 debate on Democracy Now! But its most full statement came in the form of an extended comparison of the position of the Association with those of the American Medical and Psychiatric Associations (Ethics and interrogations: Comparing and contrasting the American Psychological, American Medical and American Psychiatric Association positions) by Stephen Behnke, Director of the Association's Ethics Office.
"Every torturing government tries to apply a patina of law to these crimes. Any government can find lawyers or legislators to renounce, suspend, or define away the world's settled opinion opposing torture, expressed in documents like the Geneva Conventions." -- Steven Miles, M.D., Oath Betrayed: Torture, Medical Complicity, and the War on Terror
At the APA Convention this August, the Association's Peace Psychology Division introduced a resolution to reaffirm long-standing APA opposition to torture. At the same time, this Division and the Association's Divisions for Social Justice (a coalition of 10 divisions supporting social justice initiatives) declined to put forward a resolution banning psychologists' participation in coercive interrogations, at least partially out of concern that such a resolution would be defeated. Between the final draft version of the anti-torture resolution prepared by proponents and the version that was actually adopted and published, crucial wording defining proscribed behavior was changed in a subtle, but profound way.
The original Final Draft clearly defined torture and abuse using the United Nations Declaration and Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. It contained the following language:
"[T]he term 'torture' means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted upon a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official [e.g., governmental, religious, political, organizational] capacity. It does not include pain or suffering arising only from, inherent in, or incidental to lawful sanctions [in accordance with both domestic and international law]."
The inclusion of this statement would seem to be a clear and unambiguous acceptance by the Association of international law and understandings as to what constitutes torture.
However, in the published version the following paragraph defining "cruel, inhuman, or degrading treatment of punishment" was added:
"BE IT RESOLVED, that the term 'cruel, inhuman, or degrading treatment or punishment' means treatment or punishment by any psychologist that is of a kind that, in accordance with the McCain Amendment, would be prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984."
This all sounds relatively benign. But the phrase "United States Reservations" should raise one's interest. Just what are these Reservations and what are they doing in the Association's resolution? It turns out that, when the United States ratified this UN Convention, the U.S. government took steps to significantly reduce or even eliminate its potential impact. (Several countries, namely Sweden, the Netherlands, and Finland took exception to the U.S. Reservations at the time.) As I, a non-lawyer, read these Reservations, there are two potentially relevant clauses (Daily Kos diarist Valtin provides a somewhat different discussion of the impact of the second of these clauses but seems to have missed the first). The first of these clauses states:
"That the United States considers itself bound by the obligation under article 16 to prevent 'cruel, inhuman or degrading treatment or punishment', only insofar as the term 'cruel, inhuman or degrading treatment or punishment' means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States."
That is, for behavior not rising to the level of "torture," U.S. ratification of this Convention did not make anything illegal that was not already illegal according to U.S. law. No international understandings will be binding. Interpretations of "cruel, inhuman, or degrading treatment of punishment" by other countries, by the United Nations, or by other international organizations and institutions are irrelevant. By this means, also, the U.S. made its obligations under the Convention subject to the vagaries of U.S. law in this area. If U.S. courts interpret U.S. law as constitutionally allowing a certain type of behavior, that behavior would then by definition not be banned by U.S. adherence to the Convention. As long as that behavior was not quite "torture," it wouldn't matter if it was proscribed by every other country on earth. Unfortunately, it is not at all clear that the "psychological torture" techniques used by U.S. interrogators are violations of the U.S. Constitution.
The second potentially relevant clause in the U.S. Reservations is concerned with limiting the definition of the most severe behaviors, those that are clearly proscribed by U.S. ratification of the UN Convention:
"That with reference to article 1, the United States understands that, in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting from (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (3) the threat of imminent death; or (4) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality." (Emphases added)
Interestingly for psychologists, this, the longest clause in the U.S. Reservations, is explicitly designed to circumscribe the definition of torture so as to exclude most psychological torture. With the exception of attempts to create a "profound" disruption of "senses or the personality" or of threats to self or others of death or severe physical pain, the prolonged mental harm has to arise from the infliction of "severe physical pain or suffering." Further, the requirement of "prolonged mental harm" allows for great interpretive creativity. If a person recovers in a year, or in five years, was the harm "prolonged?" Is it OK to subject resilient individuals to more severe treatment? Further, as psychologists should know well, proving that a given behavior was the cause of a given negative psychological outcome can prove difficult, if not impossible?
The clever phrasing of this Reservation makes sure that the types of psychological torture that have historically been employed by the CIA and have been utilized by the American military in Guanta'namo, Abu Ghraib, and elsewhere are not considered to be torture. (Alfred McCoy has detailed the critical role of psychologists in developing these techniques.) Thus, much of the treatment al-Dossari describes receiving or that described in the interrogation log for al-Qahtani would likely not be considered torture under this definition. In fact, it appears that, according to the US reservations, Saddam Hussein's technique of having a man's daughter raped in front of him would not constitute torture as long as the daughter didn't suffer severe physical pain.
If one reads the Association resolution very literally, it appears that this second Reservation may not apply to the resolution, as the document only includes the phrase "U.S. Reservations" in the section defining "cruel, inhuman, or degrading treatment or punishment." Thus, a lawyer might reasonably argue that these Reservations may not apply to the definition of torture and thus the exclusion of many forms of psychological torture may not apply. However, this interpretation is not certain. As Nat Hentoff points out, the recent McCain Amendment supposedly banning torture and cruel, inhuman, or degrading treatment provides that the standard applicable to accused interrogators is that a "person of ordinary sense and understanding would not know the practices were unlawful." Any aspects of the new resolution which muddy its interpretation increase the chances of such a successful defense. At a minimum, it is extremely disturbing that the Association would include in its resolution any reference to the U.S. Reservations, a document which attempts to protect the right to use psychological torture.
The Association's Press Release, entitled "American Psychological Association Reaffirms Unequivocal Position Against Torture and Abuse" states:
"The Council of Representatives of the American Psychological Association (APA) has approved a resolution reaffirming the organization's absolute opposition to all forms of torture and abuse, regardless of the circumstance. The resolution furthermore affirmed United Nations human rights documents and conventions as the basis for APA policy."
Unfortunately, as we have seen, this new Resolution is anything but an unequivocal position against torture and abuse. Further, "United Nations human rights documents," except in the most literal sense, were decidedly not the basis of the resolution's policy toward "cruel, inhuman, or degrading treatment." Not surprisingly, the Association's Military Psychology Division, which had reportedly succeeded in defeating a related resolution the previous year supported this one. Further, the Association's leadership, which has steadfastly acted to protect psychologists' participation in national security interrogations, threw no roadblocks in the path to passage of this resolution. Presumably they realized that the new resolution was, at best, an abstract and very equivocal public relations effort with little or no actual impact on interrogations.
Steven Reisner, an activist against involvement of psychologists in coercive national security interrogations who addressed the Association Council meeting on the issue, was mortified when he became aware of the addition of the U.S. Reservations to the resolution. He asserts that he and others at the Association Council meeting became aware of the absence of a definition of "cruel, inhuman, or degrading treatment" and that he, in consultation with others, drafted a "friendly amendment" tying the definition of these behaviors to the May 2006 report of the United Nations Committee Against Torture. When he tried to describe it to the Council, he was cut off by Association President Gerald Koocher, allegedly because he was not a Council member, even though he had earlier, by invitation, addressed the Council on the interrogation issue. Dr. Reisner then sought a Council member to introduce the amendment, but was turned down by three members.
As Dr. Reisner relates in an email, there was then a short break, "during which time a small group changed some minor wording based on the Council debate, which had focused on the words 'knowingly' and 'punishment.' During the break, the resolution was revised, a new version was typed up and printed, and placed on a table for people who wanted to read [it]. No one raised the idea of more specific definitions of CID ["cruel, inhuman, or degrading treatment"] and I thought the point was lost. The Council members reconvened, were told about additions of one 'knowingly' and two 'or punishment's. A vote was called and the resolution passed unanimously." Only later did Reisner discover to his horror that, apparently during that break, the resolution was revised by the addition of the U.S. Reservations, thus severely weakening it. A number of others involved in anti-torture efforts were similarly horrified.
Others associated with the development of the resolution from the leadership of the Association's Peace Division have asserted that the reference to the U.S. Reservations was included because the Reservations contain the only definition of "cruel, inhuman or degrading treatment or punishment" in international law. It appears that this absence may be intentional as some in the human rights community feel that there should not be an explicit definition of these behaviors. The Peace Division leadership has not explained how references to the American Constitution, which has been subject to over two hundred years of complex and ever changing interpretation provides any kind of clear definition for the resolution. They also have not explained why, if they valued clarity so much, they did not include a clear list of proscribed behaviors in the resolution.
Both the Association President, Gerald Koocher, and its Ethics Director, Stephen Behnke, have denied, in emails to me, having any knowledge of these revisions or any view as to their interpretation. Both declined to respond, claiming lack of knowledge, to explicit questions as to which of the clauses in the United States Reservations were relevant to interpreting the Association resolution. Both also denied any intent to weaken the prohibition against torture.
If they and other Association leaders are indeed correct that the inclusion of the U.S. Reservations does not weaken the Resolution and that the Association stands "unequivocally" against torture and abusive interrogation, they can demonstrate this by swiftly adopting new ethics code statements that specify exactly which interrogation techniques (e.g. waterboarding, sleep deprivation, loud music, heat and cold, exploitation of phobias, forced nudity, sexual abuse, etc.) are actually proscribed. If it was critical to include a definition of "cruel, inhuman or degrading treatment or punishment" in the resolution, then surely it is even more important to clearly state what is proscribed. If Association leaders refuse to issue such a list we should presume that the new resolution was just a public relations gambit and the U.S. Reservations were included to weaken, not to strengthen it.
While the Association Council overwhelmingly adopted the equivocal anti-torture resolution that makes no mention, in its text or in its Justification Statement, of the reports of psychologist participation in torture at Guanta'namo and elsewhere, only a few members of the Association Council were willing to stand up and propose a moratorium on psychologists' participation in national security interrogations. Without a bending of the rules, any such proposal now will require at least another year to be considered by the Association Council. At that point it will have been almost five years since psychologist Maj. Leso took part in the torture of Mohammed al-Qahtani, Detainee 063. The unwillingness of the Association leadership to unambiguously cut the ties to the torturers runs deep.
Distorting the Position of Other Organizations
"Psychologists seek to promote accuracy, honesty, and truthfulness in the science, teaching, and practice of psychology." -- American Psychological Association Ethical Principles of Psychologists and Code of Conduct
As the criticism of the Association has mounted, its leadership has engaged in a concerted public relations effort. Allowing the passage at their recent Convention of the abstract and seriously weakened anti-torture resolution that made no mention of the claims of psychologist participation in abuses was one part of this effort. Another was the repeated claim that the Association's position did not substantively differ from that of the American Medical Association. This claim was asserted by Association President Gerald Koocher in a June 16, 2006 debate on Democracy Now! But its most full statement came in the form of an extended comparison of the position of the Association with those of the American Medical and Psychiatric Associations (Ethics and interrogations: Comparing and contrasting the American Psychological, American Medical and American Psychiatric Association positions) by Stephen Behnke, Director of the Association's Ethics Office.
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