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Will the American Psychological Association finally renounce the Nuremberg Defense?

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The long-standing struggle within the American Psychological Association over involvement of psychologists in potentially abusive national security interrogations is heating up again, this time with a dispute over its ethics code. In 2002, the APA added the infamous standard 1.02 to its code. This standard allows psychologists to ignore the other provisions of the code when it conflicts with "law, regulations, or other governing legal authority."

With its echoes of the universally reviled Nuremberg Defense "I was just following orders" of the Nazi doctors and others tried for war crimes after World War II, this standard has been deeply disturbing to many APA members and others. This code is binding upon all APA members and upon most licensed psychologists in the country as most, perhaps all, states require those receiving licenses to adhere to the APA code. Standard 1.02 built a loophole into the ethics code that allowed any unethical behavior by those following military or other governmental orders.

Interestingly, in an unenforceable aspirational section of the ethics code, the wording is different:

"If the conflict is unresolvable via such means, psychologists may adhere to the requirements of the law, regulations, or other governing authority in keeping with basic principles of human rights." [Emphasis added.]

After World War II, as the allies planned the prosecution of Germans for crimes committed during the war, they anticipated the possibility that defendants would use the defense that they were "just following orders" and were thus not morally culpable for their actions. The rules governing the Nuremberg trials stated:

"The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him."

This defense of following orders has been known ever since as the "Nuremberg defense" and has been regularly rejected in both U.S. and international law. In fact, the very term "Nuremberg defense" is often derided as the attempt of scoundrels to avoid moral and criminal responsibility.

In the wake of reports of psychologists aiding the Bush regime program of torture and detainee abuse, having the Nuremberg Defense in the APA's ethics code took on added significance. Potentially, it could allow psychologists involved in detainee abuse or torture to escape future liability for these abuses before the APA or state ethics committees. Further, since violating professional ethics could be introduced as evidence in the unlikely possibility of future war crimes trials, 1.02 could provide some protection in potential future trials.

Human rights advocates within the APA have experienced revulsion at an ethics code that is effectively gutted by including the Nuremberg Defense. As Ken Pope, a former Chair of the APA Ethics Committee who has since resigned from the association wrote in a statement sent to thousands of psychologists:

"Nuremberg's message of inescapable ethical responsibility and accountability came at an unfathomable price. It should never be set aside and forgotten, especially in a profession's formal statement of its ethical values."

The APA Council directed as early as 2005 that the association's Ethics Committee evaluate and recommend an alternative to this standard; some discussions were held, but year after year, no action was taken. At its August 2008 meeting, Council again directed the Ethics Committee to make a recommendation regarding changes that would resolve the discrepancy between the aspirational "in keeping with basic principles of human rights" and the absence of any human rights restriction to following orders in the enforceable section of the code. This recommendation was to be presented to the August 2008 Council meeting.

During the year there was an open comment period during which over 80 psychologists posted comments on the APA web site. Interestingly, a number of military psychologists objected strongly to changing this standard. Among these were Morgan Banks and Larry James, both of the APA's infamous PENS [Psychological Ethics and National Security] task force that, dominated as it was by military psychologists, gave the stamp of approval to psychologists participating in Bush-era interrogations. Also among those against changing 1.02 was Debra Dunivin, a Former BSCT psychologist at Guantanamo and wife of a former top APA official, Russ Newman, who played a major behind the scenes role in guiding the PENS task force. All three of these commentators served in chains of command that have been accused of abuses.

Joining the military psychologists in rejecting change were virtually all of the most powerful committees within the APA's governance structure. Thus, the powerful Committee on Legal Issues, the Board for the Advancement of Psychology in the Public Interest, the Board of educational Affairs, the Board of Professional Affairs, and the Board of Scientific Affairs recommended against any change in 1.02. several, more peripheral committees, including the Committee on Aging, the Committee on Disability Issues in Psychology, the Committee on International Relations in Psychology, and the Committee on Animal research and Ethics did support change.

One month before this August's Council meeting, the Ethics Committee made its recommendation. After four years of deliberations, they recommended no change in standard 1.02, but, rather, an additional lengthy period of discussion.. They did issue an apparently hastily-written statement that they would not accept a defense of "following orders" to ethics violations involving torture. This statement, however, is totally inadequate for several reasons:

  • First, it is of dubious legality, as it directly conflicts with the code (1.02) itself.
  • Second, such a statement is not binding on future Ethics Committees.
  • Third, it has no status with state licensing boards that adopt the APA code.
  • Finally, and most important, there are many other human rights abuses that may be authorized by law or orders that the EC statement will not cover.

The Ethics Committee recommendation follows on the heels of a letter from the APA Board on the torture-interrogations issues that was deemed woefully inadequate by association critics and activists seeking change. This Board letter recently was criticized in an Open Letter from a broad range of psychological, health, and human rights organizations. This Letter called for five actions by the APA, including change in 1.02 and other problematic sections of the ethics code. In particular, it calls upon the APA to:

"Develop a clear and rapid timetable to remove Sections 1.02 and 1.03 [the 'Nuremberg defense' of following orders] from the APA Code of Ethics. [We note that the APA Ethics Committee has stated that they will not accept a defense of following orders to complaints regarding torture; this statement is a welcome improvement but it is clearly inadequate as it is not necessarily binding on future committees nor does it cover abuses falling under the category of cruel, inhuman, or degrading treatment.] Revoke the equally problematic Section 8.05 of the Code, which dispenses with informed consent 'where otherwise permitted by law or federal or institutional regulations,' and Section 8.07, which sets an unacceptably high threshold of 'severe emotional distress' for not using deception in the ethics of research design."

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Stephen Soldz is psychoanalyst, psychologist, public health researcher, and faculty member at the Boston Graduate School of Psychoanalysis. He is co-founder of the Coalition for an Ethical Psychology and is President of Psychologists for Social Responsibility. He was a psychological consultant on two of (more...)

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