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Review of APA Ethics Guidelines, National Security Interrogations & Torture, Sidley, 2015

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REPORT TO THE SPECIAL COMMITTEE OF THE BOARD OF DIRECTORS
OF THE AMERICAN PSYCHOLOGICAL ASSOCIATION
INDEPENDENT REVIEW
RELATING TO APA ETHICS GUIDELINES,
NATIONAL SECURITY INTERROGATIONS, AND TORTURE
==================================================================

David H. Hoffman, Esq.
Danielle J. Carter, Esq.
Cara R. Viglucci Lopez, Esq.
Heather L. Benzmiller, Esq.
Ava X. Guo, Esq.
S. Yasir Latifi, Esq.
Daniel C. Craig, Esq.
SIDLEY AUSTIN LLP
One South Dearborn Street
Chicago, IL 60603
1501 K Street, N.W.
Washington, DC 20005

July 2, 2015

INDEPENDENT REVIEW REPORT TO APA

TABLE OF CONTENTS

SUMMARY TABLE OF CONTENTS
Page
EXECUTIVE SUMMARY.................................................................................................................1
I.

INTRODUCTION ...................................................................................................1

II.

INVESTIGATION PROCESS AND LIMITATIONS............................................5

III.

SUMMARY OF THE INVESTIGATION’S CONCLUSIONS .............................9
A.

Conclusions Regarding PENS Task Force and APA/Defense
Department Collusion (2005 - 2008) .........................................................10

B.

Conclusions Regarding Secret Joint Venture Between APA and DoD
Officials In Years After PENS...................................................................36

C.

Conclusions Regarding APA’s and Psychology’s Ties with the CIA,
2001 - 2004 ................................................................................................44

D.

Conclusions Regarding Changes to Ethics Code Task Force in 2002,
Including “Nuremberg Defense” ...............................................................55

E.

Conclusions Regarding Improper Application of APA Ethics
Disciplinary System to Protect CIA and DoD Psychologists ....................58

IV.

ANSWERS TO THE QUESTIONS POSED BY THE CHARGE........................64

V.

CONCLUDING COMMENTS .............................................................................70

BACKGROUND ON PSYCHOLOGISTS AND NATIONAL SECURITY ......................................73
THE 2002 ETHICS CODE REVISION ..........................................................................................86
APA INTERACTIONS WITH CIA AND DoD: 2001—2004 ........................................................124
THE PRESIDENTIAL TASK FORCE ON ETHICS AND NATIONAL SECURITY
(“PENS”) AND INITIAL AFTERMATH .........................................................................206
THE POST-PENS PERIOD – LATE 2005 TO EARLY 2009....................................................347
APA’S HANDLING OF DISCIPLINARY CASES AGAINST NATIONAL SECURITY
PSYCHOLOGISTS...........................................................................................................464
FINANCIAL REVIEW..................................................................................................................523
GLOSSARY ..................................................................................................................................529
ATTACHMENT A (INTERVIEWS CONDUCTED OR ATTEMPTED) .......................................533

INDEPENDENT REVIEW REPORT TO APA

TABLE OF CONTENTS

TABLE OF CONTENTS
Page
EXECUTIVE SUMMARY ...........................................................................................................1
I.

INTRODUCTION...................................................................................................1

II.

INVESTIGATION PROCESS AND LIMITATIONS...........................................5

III.

SUMMARY OF THE INVESTIGATION’S CONCLUSIONS.............................9
A.

Conclusions Regarding PENS Task Force and APA/Defense
Department Collusion (2005 - 2008) .........................................................10
1.

Key players ....................................................................................12

2.

Conflict of interest .........................................................................13

3.

APA’s motive to please DoD.........................................................14

4.

Other motivations...........................................................................15

5.

Subordination of ethics analysis ....................................................15

6.

The creation of the Task Force and selection of its members........16

7.

Discussions before the meeting .....................................................18

8.

Task Force meeting and report ......................................................20

9.

a)

Key DoD Task Force members..........................................20

b)

Efforts by non-DoD Task Force members.........................21

c)

Ultimate “approval” by non-DoD Task Force members ...25

d)

“Safety Monitor” argument................................................26

Other issues in the Task Force report ............................................29
a)

Application of Ethics Code................................................29

b)

Ethical obligation to detainee.............................................29

c)

Access/use of medical data ................................................30

d)

Research.............................................................................31

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B.

C.

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10.

“Emergency” action by the Board .................................................32

11.

Quick transformation of PENS into strict human rights
document through misleading public statements as PR strategy ...35

Conclusions Regarding Secret Joint Venture Between APA and DoD
Officials In Years After PENS...................................................................36
1.

APA/DoD close and secret collaboration on public
statements and media strategy .......................................................36

2.

Behnke as DoD contractor providing training as part of BSCT
psychologist interrogation training program..................................37

3.

Actual and attempted trips to Guantanamo....................................38

4.

Policy victory.................................................................................39

5.

Abandonment of PENS “casebook” plan ......................................40

6.

Obstruction on amending Ethics Code Standard 1.02 ...................41

7.

Behind-the-scenes attempts to manipulate Council of
Representatives actions in collusion with, and to remain aligned
with DoD........................................................................................42

Conclusions Regarding APA’s and Psychology’s Ties with the CIA,
2001 - 2004 ................................................................................................44
1.

Overview........................................................................................44

2.

Initial contacts and 2002 Conference.............................................48

3.

Martin Seligman.............................................................................48

4.

Joseph Matarazzo...........................................................................49

5.

Melvin Gravitz and his opinion for James Mitchell on ethics
and interrogations...........................................................................50

6.

Philip Zimbardo .............................................................................52

7.

Robert Sternberg ............................................................................53

8.

2003 and 2004 conferences............................................................53

9.

Role of Susan Brandon ..................................................................54

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D.

Conclusions Regarding Changes to Ethics Code Task Force in 2002,
Including “Nuremberg Defense” ...............................................................55

E.

Conclusions Regarding Improper Application of APA Ethics Disciplinary
System to Protect CIA and DoD Psychologists.........................................58

IV.

ANSWERS TO THE QUESTIONS POSED BY THE CHARGE ......................64

V.

CONCLUDING COMMENTS .............................................................................70

BACKGROUND ON PSYCHOLOGISTS AND NATIONAL SECURITY ..........................73
I.

THE EARLY HISTORY OF PSYCHOLOGY .....................................................73

II.

THE WORLD WARS............................................................................................73

III.

IV.

V.

A.

World War I ...............................................................................................73

B.

World War II..............................................................................................74

PSYCHOLOGY AND NATIONAL SECURITY DURING THE COLD WAR..76
A.

The CIA .....................................................................................................76

B.

The U.S. Military .......................................................................................79

PSYCHOLOGY AND THE MILITARY AFTER THE COLD WAR .................80
A.

Ties Between Psychologists and the Military............................................80

B.

APA’s 1991-2004 Ban on Military Advertising........................................82

PRESCRIPTIVE AUTHORITY...........................................................................83

THE 2002 ETHICS CODE REVISION.....................................................................................86
I.

II.

BACKGROUND....................................................................................................86
A.

Participants and Process.............................................................................86

B.

Meeting Discussions ..................................................................................89

ISSUES RAISED IN ECTF DISCUSSIONS ......................................................91
A.

Nuremberg Defense ...................................................................................91

B.

Dispensing with Informed Consent for Research ......................................94

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C.

Creation of Police & Public Safety Psychology, Correctional Psychology,
and Military Psychology Seat ....................................................................98

D.

Conflict Between Ethics and Law – Standard 1.02 .................................102
1.

Concerns from correctional and military psychologists ..............104

2.

Concerns from private practitioners and forensic psychologists .110

3.

Nuremberg not discussed.............................................................113

E.

Human Rights Standards..........................................................................116

F.

Seligman comment...................................................................................117

G.

October 2001 meeting..............................................................................118

H.

Nightingale concern .................................................................................118

I.

Changes to Principles After September 11, 2001 ....................................120

J.

Do No Harm.............................................................................................121

APA INTERACTIONS WITH CIA AND DoD: 2001—2004 ................................................124
I.

BACKGROUND: GOVERNMENT POLICY AND PRACTICE......................124
A.

Origins of Enhanced Interrogation Techniques .......................................125

B.

The First Application of Enhanced Interrogation Techniques.................127

C.

Legal Guidance ........................................................................................129

D.

Behavioral Science Consultation Teams .................................................130

E.

Guantanamo Request for Authorization to Use SERE-Based
Interrogation Techniques .........................................................................132

F.

Enhanced Interrogations at Guantanamo .................................................135

G.

Growing Opposition to the Enhanced Interrogation Program .................136

H.

Continued Involvement of Mitchell and Jessen.......................................138

I.

Evolution of the BSCT Role ....................................................................142

J.

Department of Defense Research Policy .................................................144

K.

Public Awareness of Abusive Interrogations...........................................149

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II.

III.

IV.

V.

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APA’S INITIAL COUNTERTERRORISM RESPONSE: SEPTEMBER 2001–
NOVEMBER 2001..............................................................................................153
A.

The Board of Directors’ Response...........................................................153

B.

Relationships with the Department of Defense .......................................154

C.

Developing Contacts with the FBI...........................................................155

D.

Broadening Relationships with the CIA ..................................................156
1.

Professional Standards Advisory Committee ..............................156

2.

Operational Assessment Division’s role in interrogations...........157

3.

Advisory Committee members’ inquiries to APA members
and staff........................................................................................159

GROWING RELATIONSHIPS WITH GOVERNMENT AGENCIES:
DECEMBER 2001 – FEBRUARY 2002............................................................161
A.

Continued Science Directorate Outreach.................................................161

B.

Seligman Gathering .................................................................................162

C.

Meeting of the CIA Advisory Committee ...............................................165

D.

FBI Conference: “Countering Terrorism: Integration of Theory and
Practice”...................................................................................................166

BROADENING AND STRENGTHENING CONNECTIONS:
MARCH 2002 – MARCH 2004 ..........................................................................169
A.

Congressional Outreach ...........................................................................169

B.

Continued Interactions with Executive Agencies ....................................171

C.

Meetings with APA Presidents at the CIA ..............................................172

D.

CIA Conference: “The Science of Deception: Integration of
Practice and Theory”................................................................................173

E.

Continued Interactions with CIA Contractors .........................................180

F.

Awareness of Abusive Interrogations......................................................182

ETHICAL RUMBLINGS: MARCH 2004 – JULY 2004 ..................................183
A.

Ethical Inquiries from CIA ......................................................................183

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VI.

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B.

FBI and NIJ Conference: “The Nature and Influence of Intuition
in Law Enforcement: Integration of Theory and Practice”......................186

C.

CIA Conference: “Interpersonal Deception: Integration of Theory
and Practice” ............................................................................................188

D.

The Task Force on the Psychological Effects of Efforts to Prevent
Terrorism..................................................................................................189

E.

Abu Ghraib Media and Internal Response...............................................191

F.

The Legal Framework..............................................................................193

G.

Requests for Ethical Guidance.................................................................194

H.

Additional Interactions with Mitchell and Jessen....................................196

ETHICS AND NATIONAL SECURITY: JULY 2004 – NOVEMBER 2004...197
A.

July 20, 2004 APA Ethics and National Security Forum ........................198

B.

Follow Up to the National Security Forum..............................................203

THE PRESIDENTIAL TASK FORCE ON ETHICS AND NATIONAL SECURITY
(“PENS”) AND INITIAL AFTERMATH ...................................................................206
I.

CREATION OF PENS TASK FORCE AND SELECTION OF MEMBERS .206
A.

B.

November 29, 2004–January 4, 2005: Neil Lewis’s New York
Times Article and Early Discussions of a Task Force.............................206
1.

The November 30 article and resulting internal APA
discussions and reaction...............................................................206

2.

Follow up discussions, including of Newman/Dunivin
conflict of interest ........................................................................211

3.

Initial Board discussion of the Task Force ..................................213

Preliminary Suggestions for Task Force Members, and Russ
Newman’s Involvement: January 4 – 18, 2005 .......................................215
1.

Strategic discussions about lack of “evidence”; Mumford’s
unsuccessful attempt to raise the Newman/Dunivin conflict
of interest .....................................................................................215

2.

Staff recommendations regarding task force nominees,
and initial involvement of Morgan Banks ...................................219

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C.

D.

E.
II.

APA-Defense Department interactions, and Board Approval of Task
Force: January 19 – February 17, 2005 ...................................................223
1.

APA attempt to influence DoD policy, and link to task force
member selection process ............................................................223

2.

Involvement of Russ Newman and Morgan Banks .....................225

3.

Board approval of task force........................................................230

February 17 - March 18, 2005: Influence of Debra Dunivin; task
force finalized ..........................................................................................231
1.

Some early communications about task force nominees .............231

2.

Influence of Debra Dunivin .........................................................233

3.

Final selection of task force members .........................................237

4.

Overall observations ....................................................................242

Task force Members Announced and Concerns Arise: April 2005.........243

PENS LISTSERV AND RELATED DISCUSSIONS .......................................247
A.

Listserv begins: Gelles’s Opening Thoughts, Behnke’s Handling of
Moorehead-Slaughter, Tensions between Gelles and Shumate...............247

B.

Banks and Others Weigh-In, Arrigo Raises Issues, Koocher-Arrigo
Exchanges: May 2005..............................................................................249

C.

Observers Considered, Newman’s Conflict of Interest,
Choosing “Safe, Legal, Ethical, and Effective”: June 2005 ....................253

D.
III.

TABLE OF CONTENTS

1.

Task force observers ...................................................................253

2.

Newman’s conflict of interest......................................................256

3.

Failed observers ...........................................................................258

4.

Using “safe, legal, ethical, and effective”....................................260

5.

Shumate’s and Mumford’s messages...........................................261

Overall Observations ...............................................................................262

PENS MEETINGS AND REPORT ...................................................................264
A.

Overall Impressions of Task Force Members..........................................264

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B.

C.

IV.

V.

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1.

DoD Task Force members ...........................................................264

2.

Non-DoD Task Force members ...................................................266

Day One: June 24, 2005...........................................................................268
1.

Day one conversations .................................................................268

2.

International law ..........................................................................273

3.

Confidentiality of meetings..........................................................278

Day Two: June 25, 2005 ..........................................................................280
1.

Discussions about research ..........................................................280

2.

PENS second draft report.............................................................286

3.

Other day two conversations........................................................291

D.

Day Three: June 26, 2005 ........................................................................292

E.

PENS Report Analysis.............................................................................293
1.

Psychologists as “safety officers”................................................293

2.

Need for specificity and limits.....................................................296

3.

Other report issues: do no harm, medical records,
mixing roles, confidentiality, enforceability................................302

4.

Positive aspects of the report .......................................................306

5.

Need for robust ethics analysis ....................................................307

REPORT APPROVAL........................................................................................308
A.

Internal discussions and military pressures..............................................309

B.

Ethics Committee and Task Force Re-Approval .....................................311

C.

Board takes emergency action .................................................................312

PENS INITIAL AFTERMATH AND RELATED ISSUES..............................317
A.

Immediate Aftermath: July 2005–September 2005 .................................317
1.

Banks-Behnke exchange on answering psychological distress ...317

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B.

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2.

Another Neil Lewis article, overstating the utility of the
PENS report .................................................................................318

3.

Listserv discussions .....................................................................323

4.

Notable military/government conversations ................................326

5.

Responses to Physician for Human Rights and Division 48........330

6.

Council actions and Standard 1.02...............................................334

Casebook failure: January 2006–February 2006 .....................................336
1.

Wessells’s resignation from task force ........................................336

2.

Shumate’s casebook concerns, other DoD members follow .......337

C.

Arrigo and Democracy Now! fallout: August–September 2007 .............342

D.

APA policy victories in 2006...................................................................344

THE POST-PENS PERIOD – LATE 2005 TO EARLY 2009...............................................347
I.

GUANTANAMO BAY TRIP ..............................................................................347
A.

Beginnings of the Trip .............................................................................347

B.

Levant’s Meetings Before the Trip ..........................................................349

II.

APA SUPPORT OF THE MCCAIN AMENDMENT.......................................353

III.

FEBRUARY-AUGUST 2006: COUNCIL RESOLUTION AND APA’S
PUBLIC STATEMENTS....................................................................................355
A.

February–April 2006: Proposed Council Resolution...............................355

B.

March–June 2006: DoD Training, APA Media Strategy, and
Other Issues..............................................................................................358

C.
IV.

1.

Behnke As DoD Training Instructor............................................358

2.

Close collaboration on media strategy and related issues............361

Manipulation of the August 2006 Council Meeting:
June 2006 - August 2006 .........................................................................371

CONTINUING CLOSE COORDINATION BETWEEN APA AND DoD
OFFICIALS: AUGUST 2006 - JANUARY 2007 ..............................................381

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V.

CONTINUING COORDINATION ON MEDIA STRATEGY AND
PUBLIC STATEMENTS: JULY 2006 - JULY 2007 ........................................388

VI.

BEHIND-THE-SCENES COORDINATION WITH DoD REGARDING
THE 2007 COUNCIL RESOLUTION: AUGUST 2006 - AUGUST 2007 .......396

VII.

LATE 2007–EARLY 2008: MORE CLOSE COORDINATION BETWEEN
APA AND DoD OFFICIALS ON PUBLIC STATEMENTS............................428

VIII. THE 2008 PETITION RESOLUTION AND THE 2009 PRESIDENTIAL
ADVISORY GROUP REPORT ..........................................................................429
IX.

APA’S RESISTANCE TO REVISIONS TO STANDARD 1.02, LED BY
BEHNKE.............................................................................................................450

X.

APA’S SHIFT IN COURSE DURING THE TRANSITION BETWEEN
ADMINISTRATIONS ........................................................................................461

APA’S HANDLING OF DISCIPLINARY CASES AGAINST NATIONAL
SECURITY PSYCHOLOGISTS..................................................................................464
I.

ETHICS ADJUDICATIONS..............................................................................464
A.

Adjudications Program Overview............................................................464
1.

B.

C.

Ethics Office and the Ethics Committee......................................464

Type of Matters Adjudicated ...................................................................466
1.

Show cause matters......................................................................466

2.

Sua sponte matters .......................................................................467

3.

Complainant matters ....................................................................467
a)

Filing a complaint ............................................................467

b)

Preliminary Evaluation ....................................................468

c)

Preliminary Investigation.................................................469

d)

Case Investigation............................................................471

e)

Review and Resolution by the Committee.......................471

Limitations of the Adjudication Process..................................................472
1.

Paper Only Review ......................................................................472

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2.
D.

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Confusion Regarding Scope ........................................................473

Complaints Regarding Psychologists Involved in Interrogations............475
1.

Michael Gelles .............................................................................475

2.

James Mitchell .............................................................................486

3.

John Leso .....................................................................................494

4.

a)

Sua sponte matter.............................................................495

b)

Complaints from Alice Shaw and Trudy Bond................496

c)

Closing of the Leso complaints........................................514

d)

Reactions to the closing of the Leso complaint ...............519

Larry James..................................................................................520

FINANCIAL REVIEW .............................................................................................................523
I.

APA FINANCIAL BACKGROUND ..................................................................523

II.

ANALYSIS OF CERTAIN REVENUE TYPES ................................................524
A.

Advertising Revenue................................................................................524

B.

Licensing, Royalties and Rights ..............................................................525

C.

Grant and Contract Activity.....................................................................526

D.

Rental Income ..........................................................................................528

E.

Other Revenue .........................................................................................528

GLOSSARY................................................................................................................................529
ATTACHMENT A (INTERVIEWS CONDUCTED OR ATTEMPTED)...........................533

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EXECUTIVE SUMMARY

INDEPENDENT REVIEW REPORT TO APA

EXECUTIVE SUMMARY

EXECUTIVE SUMMARY
I.

INTRODUCTION

In November 2014, the Board of Directors of the American Psychological Association
engaged our Firm to conduct an independent review of allegations that had been made regarding
APA’s issuance of ethical guidelines in 2002 and 2005, and related actions. These ethical
guidelines determined whether and under what circumstances psychologists who were APA
members could ethically participate in national security interrogations.
The gist of the allegations was that APA made these ethics policy decisions as a
substantial result of influence from and close relationships with the U.S. Department of Defense
(DoD), the Central Intelligence Agency (CIA), and other government entities, which purportedly
wanted permissive ethical guidelines so that their psychologists could continue to participate in
harsh and abusive interrogation techniques being used by these agencies after the September 11
attacks on the United States. Critics pointed to alleged procedural irregularities and suspicious
outcomes regarding APA’s ethics policy decisions and said they resulted from this improper
coordination, collaboration, or collusion. Some said APA’s decisions were intentionally made to
assist the government in engaging in these “enhanced interrogation techniques.” Some said they
were intentionally made to help the government commit torture.
Allegations along these lines had been most recently and most prominently made in a
book by New York Times reporter James Risen, published in October 2014, based in part on new
evidence he had obtained. Such allegations had also been made for many years—since APA’s
issuance of ethical guidelines in 2005—by numerous APA critics both within and without APA.
APA engaged us to look back at these events that occurred years ago, to conduct a
“definitive” and “thorough” investigation into the allegations and all relevant evidence, and to
report what happened and why. The APA Board instructed us to go “wherever the evidence
leads” and to be completely independent, and we have been. A Special Committee of the APA
Board of Directors was formed, which stressed to us that our inquiry should be broad, so that the
allegations could be addressed in a full and complete manner. We have done our best within the
past seven months to fulfill that mandate.
The specific question APA has asked us to consider and answer is whether APA officials
colluded with DoD, CIA, or other government officials “to support torture.” The allegations we
have been asked to address frame the question more broadly at times. As a result of our
investigation, we can report what happened and why. And as part of that description, we answer
whether there was collusion between APA and government officials, and if so, what its purpose
was.
**********************************************
Fourteen years later, the attacks of 9/11 remain seared in the memories of all Americans
old enough to recall them. Beyond the 2,977 killed, many others were personally and
permanently affected by the attacks. All of us can remember where we were, and the horrific
and shocking images of the attacks’ immediate consequences.

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EXECUTIVE SUMMARY

The attacks resulted in the nation going to war in Afghanistan and, later, Iraq, and at
home created virtually universal feelings of anger, patriotism, and unity of purpose against those
who had committed the attacks. There was a common, shared desire to help our national and
local governments respond, either specifically with regard to the attacks or generally with regard
to the threat of terrorism.
As we engaged in our task of looking back at important events relating to APA that
occurred in the years after 9/11, we have kept firmly in mind the strong and widespread feelings
and perceptions from that time regarding the attacks themselves and the threat of future harm.
Certainly, those feelings and perceptions were different one week, one year, four years, and ten
years after 9/11. Being appropriately sensitive to the mindset of the time would therefore require
some precision about which time is at issue. But in general, we remain aware that the passage of
time may cause one to forget the sharpness of the feelings immediately after 9/11. And as we
have engaged in our historical task, we have done our best to remember with clarity the feelings
of these times.
One critical part of the national government’s response to the attacks was an attempt to
obtain information about how the attacks occurred, whether future attacks were being planned,
and where future threats might come from. An important part of that attempt was the
interrogation of individuals who had been captured in Afghanistan and elsewhere and were in
U.S. custody at Guantanamo Bay and other locations, to determine if they had relevant
information. The heart of our inquiry relates to APA’s issuance of ethical guidelines that
determined when psychologists could ethically participate in such interrogations.
In June 2005, APA convened a task force on the topic. The task force issued a report,
largely drafted during the three-day meeting by the APA Ethics Director in consultation with the
task force. The report concluded that psychologists could ethically play a role in such
interrogations and articulated some ethical guidelines regarding their participation. Less than
one week later, the APA Board of Directors, in an emergency session, adopted the report as APA
policy and publicized it.
Almost immediately, and for the next ten years, the report and APA’s actions in
convening the task force, selecting its members, conducting the meeting, drafting the report, and
reacting to attempts to change the report’s policy have created widespread and intense
controversy within APA and the broader psychology community. Among other things, the
critics have charged that the policy set few meaningful limits on the participation of
psychologists in interrogations, despite widespread concerns about abusive conduct in such
interrogations, and must therefore have been closely coordinated with the government (perhaps
principally the Defense Department and the CIA) and motivated by a desire to curry favor with
the government.
The defenders of the task force report and APA’s actions, inside and outside APA, say
that the criticism is baseless, and denounce the actions of the critics as bullying and their words
as false and defamatory. They have accused the critics of recklessly damaging reputations and
told us that the critics must be acting out of a political and financial motivation unrelated to the
merits of their position. Others have accused the critics of being automatically anti-military,
such that any involvement by psychologists in national security endeavors would be considered

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EXECUTIVE SUMMARY

unethical. To these defenders, the APA staff and members who worked most closely on APA’s
ethics policies are (as they have told us) American heroes, and the fact that they have been
attacked rather than thanked for their service to their profession and the country is a tragedy.
**********************************************
Within about a year after 9/11, information began to emerge publicly about the manner in
which individuals taken into U.S. custody abroad in the war on terror were being treated.
Fourteen years later, a great deal of information has become publicly available about this
treatment, including from reports by the Senate Select Committee on Intelligence (2014) and the
Senate Armed Services Committee (2008), although more information emerges on an ongoing
basis.
This information establishes that in the months following 9/11, the President authorized
the CIA to engage in “enhanced interrogation techniques.” These techniques were not methods
of asking questions of a detainee, but were rather ways of attempting to break the will of
uncooperative detainees so that they would answer the interrogators’ questions and provide
intelligence information. These “techniques” included waterboarding, harsh physical actions
such as “walling,” forced “stress positions,” and the intentional deprivation of necessities, such
as sleep and a temperature-controlled environment. The Secretary of Defense authorized the
Defense Department to engage in a similar set of “enhanced interrogation techniques,” although
waterboarding was excluded.
The Justice Department office in charge of authoritatively interpreting U.S. law, the
Office of Legal Counsel, wrote memos to the CIA in 2002 defining “torture” in a very narrow
way. Acts intentionally causing pain to individuals in U.S. custody abroad could only rise to the
level of torture, they said, if the effect was equivalent to the pain of a “serious physical injury
such as organ failure, impairment of bodily function or even death.” Acts intentionally causing
psychological harm to such captives would only count as torture if they caused “significant
psychological harm” that lasted “for months or even years,” such as the development of an actual
mental disorder. The memos emphasized that understanding “the context” of the act was
important, and that “it is difficult to take a specific act out of context and conclude that the act in
isolation would constitute torture.” The memos added that, regardless of what actions causing
psychological harm were taken by interrogators, the actions could not be considered torture if the
interrogator could show that he “did not intend to cause severe mental pain.” Interrogators could
show that they lacked this intent by “consulting with experts or reviewing evidence gained in
past experience.”
In 2003, based in part on these Justice Department memos, Defense Department attorneys
wrote a report concluding that a U.S. law barring torture by military personnel was inapplicable
to interrogations of detainees, and that causing harm to an individual in U.S. custody abroad
could be justified “in order to prevent further attacks” on the United States by terrorists. The
report, which essentially repeated the conclusions of the DOJ memos regarding the narrow
definition of torture, and became the basis for an authorization to the military command at
Guantanamo Bay to use certain interrogation techniques not included in the Army Field Manual.
The authorization repeated that the Geneva Conventions were not applicable to the detainees
held at Guantanamo.

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By June 2005, much of this information had been made public, including the analysis of
the Justice Department memos and the Defense Department report. In addition, numerous
detailed allegations and accounts of abusive interrogation practices had been made public,
including from the International Committee for the Red Cross, which monitored activity at
Guantanamo Bay, and from media reports, which quoted military interrogation logs and
government officials who described abusive interrogation practices at CIA “black sites.”
As we write this report, the CIA’s use of “enhanced interrogation techniques” is well
documented, including in the Senate Intelligence Committee’s 2014 report. Among other things,
psychologist and CIA contractor Jim Mitchell described in a recent, nationally-broadcast TV
interview how he engaged in waterboarding detainees—including how he decided whether to
pour water over the strapped-down and blindfolded detainee’s face for 10 seconds, 20 seconds,
or 40 seconds. The Defense Department’s use of enhanced interrogation techniques has also
been documented to some degree, including in the Senate Armed Services Committee’s 2008
report.
The critics of APA’s actions, decisions, and statements relating to this issue, including
the 2005 task force report, say that they are horrified by the involvement of psychologists in
these types of abusive interrogation methods, and find APA’s actions that facilitated or allowed
such involvement to be atrocious. They are most critical of the 2005 task force report, but also
sharply criticize subsequent APA policy actions on this issue, its handling of related disciplinary
complaints against certain members, and some of the key ethics code revisions that APA made in
2002.
Based on the evidence available to them of important interactions between APA and parts
of the government, they believe that the only logical explanation for APA’s action is collusion or
close coordination with the government. They describe APA’s apparent motive and intent in
different ways, from a desire to curry favor with the government to an intent to help government
officials engage in torture. And some are convinced that a comparison of the timing of APA’s
actions and the timing of the Bush Administration’s actions establishes that APA was acting in
explicit and close coordination with high-level Administration officials. Some label APA’s
actions “criminal,” and have called out by name the APA officials and employees most involved
with this issue, with a request that they be prosecuted. They have said that APA’s refusal to
strictly limit—if not prohibit—the involvement of psychologists in national security
interrogations on ethical grounds created an indelible stain on the entire profession, and a warped
and improper definition of what it means to be a psychologist.

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II.

EXECUTIVE SUMMARY

INVESTIGATION PROCESS AND LIMITATIONS

We recognize the substantial limitations on our ability to definitively inquire into this
extraordinarily intense dispute. First, we are not psychologists and, until this matter, were not
familiar with the people, processes, organization or history of APA. Gaining this familiarity has
not been quick or easy. Psychology is a very large profession of great importance to the well
being of our citizens, our nation, and the world. And APA, one of psychology’s leading
professional organizations, is a 122-year-old body with 54 divisions and over 120,000 members.
As attorneys and members of our own professional associations, we of course appreciate the
importance of what it means to be a profession, and the importance to psychology of APA as its
principal professional organization. But we cannot promise that we have been able to conduct
this inquiry with the same insights into human behavior that psychologists may have as a result
of their professional training and experience. And it took us some time to learn and appreciate
the manner in which APA operates, how it is organized, and who the key people are and were—
all essential insights in order to investigate the matter.
Second, we are not government investigators, and do not have the powers (such as
subpoena power) or the same access to government information that such investigators typically
have. Although most individuals were quite cooperative and willing to meet with us, that
sentiment was not universal, and there were several individuals who declined to meet with us or
did not respond to our requests. Since this topic relates in part to the activities of the military and
the intelligence community, attempts to obtain information about these activities can be
complicated by the fact that some information may be classified. And as non-government
investigators, we do not have a security clearance. In addition, our ability to assess whether we
are receiving accurate information from former government officials trained in intelligence
operations may be limited, especially when combined with the limits on our ability to gather
government information on this topic. Some of the best investigators in this area, from the
government or otherwise, are people who have been doing so for some time and who therefore
have developed sources, among other things. We are obviously not in the same position.
This inquiry is made more difficult by the amount of time that has elapsed since the
important events occurred. The key events relating to the APA task force report occurred 10 to
11 years ago, and the events relating to the ethics code revision occurred 13 to 19 years ago.
Both because memories fade (and change, as psychologists tell us) and because fewer documents
remain available as time goes on, any investigation into events this long ago will have inherent
limitations.
In addition, this report simply reflects a summary of our knowledge on this topic at a
moment in time. Among other things, there is more investigative work that could be done. New
information was continuing to come into our investigation up to the time of our drafting of this
report, while some attempts to gather information remain pending (for instance, from witnesses
who have to date refused to speak with us or have yet to respond to our request, or from
government agencies with whom we still have pending document requests). Being able to call
an investigation of this magnitude truly “comprehensive” would likely require many additional
months. And in light of the inherent limitations described above, attempting to gather definitive
information from government resources may be a very time-consuming process. Our
descriptions in this report, especially of the actions and potential motives of government actors,
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must therefore be seen not as necessarily complete, definitive descriptions, but as a summary of
our best effort to find facts and draw conclusions based on the time we have been provided and
the evidence we have been able to review.1
Nevertheless, after actively investigating this matter for nearly eight months with a team
of six attorneys and conducting investigative activity that we think is fairly characterized as
thorough, we have been able to reach conclusions about most of the key issues under dispute
based on the extensive evidence we have reviewed.
**********************************************
At the outset of our investigation, we established a special email address
(apareview@sidley.com) and phone line that anyone could use to share information with Sidley.
We received nearly 300 emails to the special email address and more than 30 phone calls to the
phone line from individuals who wanted to provide us with information.
We have reviewed over 50,000 documents, the most important of which were a very high
volume of emails from APA that remained from many years ago. At the beginning of the
investigation, we did not know whether APA’s computer systems would contain substantial
email or other documentary evidence from 10 to 15 years ago. We were pleasantly surprised to
learn that a very large volume of emails and other documents remained based on voluntary
decisions to save emails and documents, especially from 2004 forward, although we know that
we have a necessarily incomplete set because of deletions over time and the loss of data
associated with departed employees.
From APA, we received an immense volume of emails, electronic files, and hard copy
documents, including contemporaneous handwritten notes. These documents consisted of files
collected from the Executive Management Group, the Ethics Office, the Ethics Committee, the
Executive Office, the Science Directorate, the Office of General Counsel, the CFO, the Board of
Directors, and the Council of Representatives. The files contained, among other things, Board
meeting materials, Council meeting materials, Ethics Code Task Force materials, PENS Task
Force materials, APA financial statements, information on APA grants and contracts, APA rules
1

To be clear, APA has not placed a time limit on our investigation. On the other hand, the Special
Committee of the APA Board has made it clear to us that APA has a very strong preference that it be able
to send our report, along with recommendation from the Board, to the APA Council of Representatives in
advance of that body’s August 2015 meeting so that the matter can be considered by the Council at its
meeting. And in order to meet that time frame, the Special Committee requested that we provide our
report to the APA Board by late June 2015. As set out below, our extensive investigation has allowed us
to reach certain clear conclusions relating to the actions, decisions, and motivations of APA and its key
officials and employees on this topic. While further investigation may provide fuller information
regarding these conclusions, and could conceivably lead to new conclusions regarding these APA actors
or others, we are clearly able to reach the conclusions set out in this report based on the evidence we
reviewed, conclusions which address the principal questions at the heart of our inquiry. Any decisions
about whether to disseminate this report beyond the APA Board of Directors are being made by the
Board. We are providing our report to the APA Board, and then they will take whatever actions regarding
our report they believe are appropriate.

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and policies, Ethics Committee Rules and Procedures, and adjudications files. In addition, we
reviewed data from seven APA listservs. 2
We have also received electronic files, hard copy files, and contemporaneous handwritten
notes from a wide variety of individuals outside APA, ranging from former APA officials, to
former government officials, to important APA critics who have collected a huge volume of
information on this topic over the years. We sent document requests to government agencies
under FOIA (some of which remain pending at the time of this report), as well as former APA
Presidents, Ethics Code Task Force members, PENS Task Force members and observers, former
Board members, and former APA employees. Many of these individuals searched their files and
sent us relevant documents, which we reviewed. We also met with a former APA President at his
home in Ohio and searched his electronic and hard copy files to collect relevant documents.
We received numerous helpful documents from the files of APA critics, including Steven
Reisner, Stephen Soldz, and Nathaniel Raymond, including the collection of emails from the late
RAND Corporation analyst and CIA contractor, Scott Gerwehr, which formed the basis for some
of the analysis in Risen’s book, and for a subsequent report issued by these three critics. In
addition, we received and reviewed documents from the PENS Archives established by Jean
Maria Arrigo at the University of Colorado-Boulder.
We have conducted well over 200 interviews of 148 people. 3 Many of these were in
person, and we conducted interviews in 14 different cities and 10 different states, including
California, Illinois, Massachusetts, Michigan, Montana, New York, North Carolina, Ohio,
Oregon, and Pennsylvania. We interviewed individuals from virtually every perspective on these
issues, including all the principal APA critics; many current and former APA employees,
officers, Presidents, Board members, committee members, and task force members; numerous
former government officials including key individuals from the CIA and Defense Department;
and outside experts on ethics.
A small number of important witnesses refused our requests for an interview. One
especially important witness with strong links to the CIA, prominent psychologist Mel Gravitz,
declined to meet with us. Gravitz, who worked for many years with the CIA as a contractor, is
nearing 90 and politely informed us by phone that he did not think he recalled anything from this
time. But Gravitz, an expert in memory and hypnosis, also declined to meet with us to see if
documents he either wrote or was named on would refresh his recollection. In addition, a former
member of the 2002 APA task force on the revision of the ethics code (and former CEO of the
APA Insurance Trust), Bruce Bennett, refused to meet with us, although he said he would make
himself available for written questions. (After our third request, Bennett said he would not be
2

We reviewed the following listservs: PENS Task Force, COR (Council of Representatives), COLI
(Committee on Legal Issues), DIV13SECURITYSIG (Division 13 - Members in National Security
Settings), DIV24ETH (Discussions concerning ethics education and ethical issues), EMG (Executive
Management Group), SPIN (Science Policy Insider News) (on file with Sidley).

3

Attachment A to this report is a list of the individuals we interviewed during our investigation, as well as
those individuals we attempted to interview but were unable to either because they declined our request or
did not respond.

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available for an in-person interview until September, and would not make himself available for a
phone or video interview.) As of the date of this report, we have not received Bennett’s written
answers. Dr. Martin Seligman also insisted on answering only written questions, although he
proactively made himself available to us and answered our questions promptly. Virtually all
CIA and DoD officials for whom we have evidence of interaction with APA agreed to our
requests for an interview, though some of the other CIA and DoD officials we sought to
interview declined or did not respond to our interview requests.
Other witnesses significantly delayed meeting with us. Scott Shumate, an important
PENS Task Force member and former CIA and DoD official (Director of Behavioral Science at
DoD’s Counter Intelligence Field Activity agency), refused to speak with us for months. He
retained an attorney to negotiate meeting with us, and only made himself available for a grudging
interview toward the very end of our investigation after numerous attempts at contacting him.
And the chair of the 2002 Ethics Code revision task force, Celia Fisher, the most important
witness regarding the ethics code revision, refused to speak with us for several months, slowing
down our investigation on this topic substantially. Ultimately, however, she was very
cooperative and answered fully and promptly all our inquiries in person and in writing.
We received complete cooperation from APA, which opened up all its electronic and
hard-copy files to us, gave direct instructions to all its employees to cooperate fully with regard
to interviews and documents, and acted promptly to fulfill our numerous requests. All APA
employees made themselves available to us promptly and for extensive periods of time,
sometimes at substantial sacrifice to personal commitments, and always acted professionally
despite sometimes feeling very challenged in uncomfortable ways by our questions. Many
people who formerly served in important APA positions or important government positions
generously gave us much of their time, despite having no obligation to do so, including many
who welcomed us into their homes to be interviewed.
**********************************************
We are cognizant that our report and its findings cannot and will not resolve all the
intense disputes on this issue; but it is not meant to. We provided conclusions where the
evidence allowed us to reach them, but otherwise we described the evidence thoroughly so as to
present as many facts as we were able to discover. In this way, we attempted to stay true to our
task to go where the evidence would lead us. Sometimes it led us to answers, but sometimes it
led us to more questions. As a result, our report and its findings will not be considered satisfying
or sufficient to all who read it. But we are also confident that it represents conclusions about
what happened, and why, that are based on and squarely supported by the extensive evidence we
have reviewed.

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III.

EXECUTIVE SUMMARY

SUMMARY OF THE INVESTIGATION’S CONCLUSIONS

Our principal findings relate to the 2005 task force, which was formally empanelled by
the APA President and was called the Presidential Task Force on Ethics and National Security,
or “PENS.” The task force finalized a report on June 26, 2005 containing 12 ethical guidelines
that were adopted as official APA ethics policy by the APA Board on an emergency basis less
than one week later.
Our investigation determined that key APA officials, principally the APA Ethics Director
joined and supported at times by other APA officials, colluded with important DoD officials to
have APA issue loose, high-level ethical guidelines that did not constrain DoD in any greater
fashion than existing DoD interrogation guidelines. We concluded that APA’s principal motive
in doing so was to align APA and curry favor with DoD. There were two other important
motives: to create a good public-relations response, and to keep the growth of psychology
unrestrained in this area.
We also found that in the three years following the adoption of the 2005 PENS Task
Force report as APA policy, APA officials engaged in a pattern of secret collaboration with DoD
officials to defeat efforts by the APA Council of Representatives to introduce and pass
resolutions that would have definitively prohibited psychologists from participating in
interrogations at Guantanamo Bay and other U.S. detention centers abroad. The principal APA
official involved in these efforts was once again the APA Ethics Director, who effectively
formed an undisclosed joint venture with a small number of DoD officials to ensure that APA’s
statements and actions fell squarely in line with DoD’s goals and preferences. In numerous
confidential email exchanges and conversations, the APA Ethics Director regularly sought and
received pre-clearance from an influential, senior psychology leader in the U.S. Army Special
Operations Command before determining what APA’s position should be, what its public
statements should say, and what strategy to pursue on this issue.
We did not find evidence to support the conclusion that APA officials actually knew
about the existence of an interrogation program using “enhanced interrogation techniques.” But
we did find evidence that during the time that APA officials were colluding with DoD officials to
create and maintain loose APA ethics policies that did not significantly constrain DoD, APA
officials had strong reasons to suspect that abusive interrogations had occurred. In addition,
APA officials intentionally and strategically avoided taking steps to learn information to confirm
those suspicions. Thus, we conclude that in colluding with DoD officials, APA officials acted (i)
to support the implementation by DoD of the interrogation techniques that DoD wanted to
implement without substantial constraints from APA; and (ii) with knowledge that there likely
had been abusive interrogation techniques used and that there remained a substantial risk, that
without strict constraints, such abusive interrogation techniques would continue; and (iii) with
substantial indifference to the actual facts regarding the potential for ongoing abusive
interrogations techniques.
While we found many emails and discussions regarding how best to position APA to
maximize its influence with and build its positive relationship with the Defense Department, and
many emails and discussions regarding what APA’s messaging should be in a media
environment it perceived as hostile, we found little evidence of analyses or discussions about the

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best or right ethical position to take in light of the nature of the profession and the special skill
that psychologists possess regarding how our minds and emotions work—a special skill that
presumably allows psychologists to be especially good at both healing and harming.
We found that current and former APA officials had very substantial interactions with the
CIA in the 2001 to 2004 time period, including on topics relating to interrogations, and were
motivated to curry favor with the CIA in a similar fashion to DoD. But we did not find evidence
that the relationship with the CIA contributed to the outcome of the PENS Task Force,
apparently because APA’s key CIA contact for the APA retired in 2005 before the PENS Task
Force met, and perhaps because the CIA’s enhanced interrogation technique program was on the
wane in 2005, as reported by the Senate Intelligence Committee in its 2014 report.
With regard to the revisions of the Ethics Code in 2002—and most notably a revision to
Standard 1.02, providing that psychologists who experienced a conflict between an APA ethical
obligation and a law or order from a superior could follow the law or the order without
committing an ethical violation, if the conflict could not be resolved (labeled a “Nuremberg
defense” by critics)—we found that the meaningful changes occurred prior to 9/11 and were not
influenced by an effort to help the government’s interrogation efforts. We did find, however,
that the “Nuremberg defense” issue was raised to APA officials during the Ethics Code revision
process, but that they failed to follow up on it.
Finally, we found that the handling of ethics complaints against prominent national
security psychologists was handled in an improper fashion, in an attempt to protect these
psychologists from censure.
We set out a summary of the evidence and our findings below. We then turn, in Section
IV of this Executive Summary, to answers to the questions presented in the charge, in light of the
evidence and our findings. And in Section V of this Executive Summary, we provide some
closing comments.
A.

Conclusions Regarding PENS Task Force and APA/Defense Department
Collusion (2005 - 2008)

The evidence establishes that the composition of the PENS Task Force, the key ethical
statements in the task force report, and many related APA public statements and policy positions
were the result of close and confidential collaboration with certain Defense Department officials
before, during, and after the task force met. The details and level of this coordination varied over
time, ranging from some coordination to a very close partnership, in which key APA officials
were operating in a virtual joint venture with key Defense Department officials. Their joint
objective was to, at a minimum, create APA ethics guidelines that went no farther than—and
were in fact virtually identical to—the internal guidelines that were already in place at DoD or
that the key DoD officials wanted to put in place. Thus, their joint objective was to create APA
ethics guidelines that placed no significant additional constraints on DoD interrogation practices.
For the APA officials who played the lead role in these actions, their principal motive
was to curry favor with the Defense Department for two main reasons: because of the very
substantial benefits that DoD had conferred and continued to confer on psychology as a

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profession, and because APA wanted a favorable result from the critical policy DoD was in the
midst of developing that would determine whether and how deeply psychologists could remain
involved in intelligence activities. APA’s motive to curry favor with DoD was enhanced by
personal relationships between APA staff and DoD personnel, an important conflict of interest
that was intentionally ignored; as a result, —powerful executive leaders—who was married to
one of the military’s lead psychologists who supported interrogations at Guantanamo Bay—
became involved in important ways in the development of both the task force itself and the
ethical guidelines it issued.
APA officials had two important secondary motives: First, APA wished to implement a
media communications strategy in which APA could portray itself as very engaged in the issue
and very concerned about ethical issues, as a reaction to APA’s perception that it was receiving
and would otherwise continue to receive negative press coverage on this issue. And second,
APA wanted to foster the growth of the profession of psychology by supporting military and
operational psychologists, rather than restricting their work in any way.
The evidence supports the conclusion that APA officials colluded with DoD officials to,
at the least, adopt and maintain APA ethics policies that were not more restrictive than the
guidelines that key DoD officials wanted, and that were as closely aligned as possible with DoD
policies, guidelines, practices, or preferences, as articulated to APA by these DoD officials.
Notably, APA officials made their decisions based on these motives, and in collaboration with
DoD officials, without serious regard for the concerns raised that harsh and abusive techniques
were occurring, and that they might occur in the future. APA chose its ethics policy based on its
goals of helping DoD, managing its PR, and maximizing the growth of the profession. APA
simply took the word of DoD officials with whom it was trying to curry favor that no such abuse
was occurring, and that future DoD policies and training would ensure that no such abuse would
occur. APA officials did so even in the face of clear and strong indications that such abuse had
in fact occurred (and APA did not even inquire with CIA officials on the topic, despite public
allegations that the CIA had engaged in abusive interrogation techniques). Based on strategic
goals, APA intentionally decided not to make inquires into or express concern regarding abuses
that were occurring, thus effectively hiding its head in the sand.
APA remained deliberately ignorant even in light of obvious countervailing concerns that
counseled in favor of crafting clear policies: Strict ethics rules that clearly and specifically
constrain undesirable behavior can be critical in preserving the integrity of a profession,
especially in situations when other methods of constraining such behavior (e.g., consultation,
adjudication) are less feasible, as here. Being involved in the intentional harming of detainees in
a manner that would never be justified in the U.S. criminal justice system could do lasting
damage to the integrity and reputation of psychology, a profession that purports to “do no harm.”
And engaging in harsh interrogation techniques is inconsistent with our fundamental values as a
nation and harms our national security and influence in the world. These countervailing
concerns were simply not considered or were highly subordinated to APA’s strategic goals.
Although APA officials insisted at the time, and for years after, that all their actions were
based on independent ethics and policy judgments about how to provide appropriate ethical
guidance for psychologists who worked in this area, we found that this was not the case. Instead,
key APA officials were operating in close, confidential coordination with key Defense
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Department officials to set up a task force and produce an outcome that would please DoD, and
to produce ethical guidelines that were the same as, or not more restrictive than, the DoD
guidelines for interrogation activities.
On the most important issue the PENS Task Force was asked to consider—where to draw
the line for psychologists between unethical and ethical interrogation practices—the key APA
official who drafted the report (the APA Ethics Director) intentionally crafted ethics guidelines
that were high-level and non-specific so as to not restrict the flexibility of DoD in this regard,
and proposed key language that was either drafted by DoD officials or was carefully constructed
not to conflict with DoD policies or policy goals.
The leading ethical constraint in the report was that psychologists could not be involved
in any way in torture or cruel, inhuman or degrading treatment. But it was well known to APA
officials at the time of the report that the Bush Administration had defined “torture” in a very
narrow fashion, and was using the word “humane” to describe its treatment of detainees despite
the clear indications that abusive interrogation techniques had been approved and used. Thus,
APA knew that the mere use of words like “torture,” “inhuman,” or “degrading” was not
sufficient to provide guidance or draw any sort of meaningful line under the circumstances.
Although the relatively small number of non-DoD voting members of the task force made
some efforts to push for greater specificity and for definitions based on the Geneva Conventions,
their efforts were rejected by the DoD members of the task force, the APA Ethics Director, and
the other key APA officials who were included in the meeting. And a key passage of an earlier
draft that would have created an ethical prohibition on psychologists being involved in
interrogation techniques that intentionally caused psychological distress (albeit with a big
loophole) was replaced in the final version by language handwritten by the key DoD official on
the panel that created no such prohibition whatsoever.
1.

Key players

The APA official who led this behind-the-scenes coordination with the DoD officials was
the Ethics Director, Stephen Behnke, and the key DoD official he partnered with was Morgan
Banks, the chief of psychological operations for the U.S. Army Special Operations Command
and the head of the Army SERE Training program at Ft. Bragg. During the task force’s premeeting communications, during its three-day meetings, and in preparing the task force report,
Behnke and Banks closely collaborated to emphasize points that followed then-existing DoD
guidance (which used high-level concepts and did not prohibit techniques such as stress positions
and sleep deprivation), to suppress contrary points, and to keep the task force’s ethical statements
at a very general level in order to avoid creating additional constraints on DoD. They were aided
in that regard by the other DoD members of the task force (who, for the most part, also did not
want ethical guidance that was more restrictive than existing DoD guidance), and by high-level
APA officials who participated in the meeting.
Other leading APA officials intimately involved in the coordinated effort to align APA
actions with DoD preferences at the time of PENS were then-APA President Ron Levant, thenAPA President-Elect Gerald Koocher, and then-APA Practice Directorate chief Russ Newman.
Then-APA Board member Barry Anton participated in the selection of the task force members

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along with Levant, Koocher, and Behnke and in the task force meeting, but was involved
substantially less than the others. Other members of the APA executive management group—
namely, CEO Norman Anderson, Deputy CEO Michael Honaker, General Counsel Nathalie
Gilfoyle, and communications director Rhea Farberman were involved in relevant
communications, as described below.
The other DoD official who was significantly involved in the confidential coordination
effort was Debra Dunivin, the lead psychologist supporting interrogation operations at
Guantanamo Bay at the time who worked closely with Banks on the issue of psychologist
involvement in interrogations. At times, they were coordinating their activities with the Army
Surgeon General’s Office. There is evidence that Banks was consulting with other military
leaders, likely in the Army Special Operations Command and the Joint Task Force –
Guantanamo, although this was not the focus of our investigation, in part because of our limited
ability to access DoD documents and personnel. Another important DoD official involved in
some coordination with Behnke was PENS task force member Scott Shumate, a former CIA
official who was head of behavioral sciences for a newly-created counter intelligence unit
(CIFA) within DoD, which reported to the Under Secretary of Defense for Intelligence.
For Banks, Dunivin, and others at DoD, the attention on the abusive treatment of
detainees as a result of the media disclosures of Abu Ghraib, the torture memos, the DoD
working group report, and other related events created uncertainty and worry about whether the
involvement of psychologists in interrogations would be deemed unethical. Some in DoD, such
as civilians Shumate and Kirk Kennedy at CIFA, were pushing APA to move forward with
action that would show support for national security psychologists and help end the uncertainty
by declaring that psychologists’ participation in interrogations (with some then-undefined limits)
was ethical. Others, like military officers Banks and Dunivin, reacted to APA’s movement
toward the creation of the task force with concern that APA could head in a negative direction if
the task force was not properly set up and controlled, and with awareness that this was an
opportunity for DoD.
2.

Conflict of interest

One of the key APA officials who participated in the task force meeting was Russ
Newman, the powerful head of the APA Practice Directorate, the most influential unit within
APA headquarters. Newman also participated in numerous internal discussions, at the Board and
staff levels, involving the creation of the task force, and had apparently consulted with Banks
regarding the language of the task force proposal prior to the Board meeting at which the
creation of the PENS Task Force was approved.
Newman had an obvious conflict of interest, since his wife, Debra Dunivin, was highly
interested in the outcome of this policy decision by APA and was one of the DoD psychologists
who would be most affected, positively or negatively, by the ethical position about which APA
was supposed to be deliberating. Newman owed a duty of loyalty to APA, which was in the
midst of determining its ethical position on this critical issue. In doing so, APA needed to
determine how to balance at least two important values: (i) the importance of psychologists
assisting the government in getting accurate intelligence information about potential future
attacks in order to protect the public; and (ii) the importance of psychologists not intentionally

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doing physical or psychological harm to individuals, perhaps especially in the situation in which
the individual is in custody and is outside the protections of the criminal justice system. In
determining its position, APA also needed to balance the views and positions of military and
national security psychologists with the views and positions of those outside the military, and
national security systems.
Because of Dunivin’s obvious and strong interest and bias on these points, Newman had
a classic conflict of interest. It was therefore incumbent upon him and APA to keep him out of
the discussions and deliberations on this topic, and to disclose the conflict. In fact, the opposite
occurred. No disclosure was made. Newman and Dunivin were included at many of the key
points of the process, including the task force selection process and the task force deliberations;
and both Newman and Dunivin inserted themselves and influenced the process and outcome in
important ways. The various APA officials who were aware of the conflict and of all or some of
Newman’s and Dunivin’s involvement—including principally Ethics Director Behnke, Deputy
CEO Michael Honaker, APA President Ron Levant, and APA President-Elect Gerald Koocher,
and also including to a lesser extent CEO Norman Anderson and General Counsel Nathalie
Gilfoyle—took no steps to disclose or resolve the conflict.
3.

APA’s motive to please DoD

The very substantial benefits APA obtained from DoD help explain APA’s motive to
please DoD, and show that APA likely had an organizational conflict of interest, which it needed
to take steps to guard against. DoD is one of the largest employers of psychologists and provides
many millions of dollars in grants or contracts for psychologists around the country. The history
of DoD providing critical assistance to the advancement and growth of psychology as a
profession is well documented, and includes DoD’s creation of a prescription-privileges
“demonstration project” in which psychologists were certified to prescribe psychiatric drugs
within DoD after going through a two-year training course. While APA took one significant step
in 1991 that disappointed many military psychologists—refusing to allow DoD ads in APA’s
publications because of DoD’s discriminatory position regarding gays and lesbians in the
military—APA had lifted its advertising ban in 2004. And by the time of the PENS Task Force,
contemporaneous internal discussions show that improving APA’s already strong relationship
with DoD was a clear priority for those APA officials working on the PENS Task Force.
In addition, at the time of the task force’s creation, DoD was in the midst of developing
policy about how psychologists and psychiatrists could participate in interrogations and other
intelligence-collection activities. APA wanted to positively influence DoD regarding this policy
so that psychologists would be included to the maximum degree possible, and psychologists
would not lose the lead role to psychiatrists. APA used the pro-DoD task force composition and
report to show its strong support to DoD, with the hope or expectation that APA would be
rewarded with a very prominent role for psychologists in this new policy. And in fact, the policy
did provide a very prominent role for psychologists, a fact celebrated by the APA officials who
had worked most closely on the task force.

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EXECUTIVE SUMMARY

Other motivations

The other two principal motivations of the lead APA officials—PR strategy and growing
the profession of psychology—also played an important role in the way APA handled the PENS
Task Force process and outcome. As some in the APA leadership group discussed candidly,
well in advance of the PENS process, advancing these goals created a dilemma: on the one hand,
they wanted to take a position that allowed psychologists to be as involved as possible in
interrogations, including in some of the less extreme efforts to “break down” uncooperative
detainees; but on the other hand, they knew that to articulate this publicly in any sort of detail
would look horrible. They also worried about what they saw as negative press reports that made
APA appear to be stumbling and unsure about this issue. The only solution that met all these
goals was an outcome that allowed them to take a public position that pleased DoD, that did not
significantly restrict an important group of psychologists, and that avoided the difficult issue by
keeping ethical guidelines at a high level.
5.

Subordination of ethics analysis

What is also clear from the evidence is that the decisions from the key APA officials
about how to proceed regarding the PENS Task Force—its composition, the substance of the
report, how to adopt it as policy, what public explanations to make, and whether and how to
change the policy once there was pressure to do so—were not based in any meaningful way on
ethics analysis.
To advance its PR strategy, APA issued numerous misleading statements that hid its true
motives, in an attempt to explain and justify its ethics policy and the PENS Task Force report in
positive terms. At times, APA’s statements stressed a pro-human-rights message: the task force
report and APA policy were issued to provide “strict ethical boundaries” that carefully protected
human rights and ensured that psychologists were not involved in harsh and abusive techniques.
At the same time, the misleading public statements stressed that APA could not be expected to
be more detailed than it had been: they said APA needed to respect that the issue was
complicated, that they did not have all the facts or context necessary to make ethical judgments,
that the issue needed more time to develop, and that the task force report was just an initial step.
At other times, APA said that they were just following the will of a diverse group of task force
members who had adopted the report in either a unanimous or consensus fashion.
We found that none of these explanations accurately reflected APA’s true reasons for
proceeding as it did. The fact that a robust ethics analysis was not part of this ethics process led
by the Ethics Director was surprising to us, but is consistent with two additional observations
revealed by our investigation.
First, Ethics Director Behnke often acted as APA’s chief of staff on this issue, taking the
lead in recommending and drafting virtually all APA decisions and statements on this issue,
whether relating to Board strategy, PR, Capitol Hill lobbying, or APA Council of
Representatives management and strategy, among others. As we have learned in this
investigation, Behnke is a brilliant and highly educated psychologist and lawyer, a nice and
charming person, a highly gifted and fast writer, and a very sophisticated and nuanced strategist
and communicator. Whatever organizational or personality dynamic led to APA allowing him

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to play this remarkably expansive role, well beyond the expected duties of APA Ethics Director,
the result was a highly permissive APA ethics policy based on strategy and PR, not ethics
analysis.
Second, APA leaders had decided in the 1990s (before Behnke’s arrival at APA in 2000)
that APA’s ethics policies and practices had been too aggressive against psychologists, and that a
more protective and less antagonistic ethics program was appropriate. They wanted a greater
focus on ethics education and consultation, and much less emphasis on strict rules and robust
enforcement of disciplinary complaints. Revisions to the Ethics Code focused in part on making
the rules more precise to ensure that psychologists had proper notice about what behavior was
considered unethical, and to minimize APA’s litigation risk from lawsuits by sanctioned
psychologists. A provision about how to handle conflicts between legal and ethical obligations
(Ethics Code Standard 1.02) was expanded so that psychologists could follow court orders or
military orders requiring them to engage in conduct otherwise prohibited by the Ethics Code, as
long as they attempted to resolve the conflict first. Behnke was hired specifically to pursue an
ethics program that was more “educative,” and he fulfilled these goals. During his tenure, APA
disciplinary adjudications plummeted, and the focus shifted to “supporting” psychologists, not
getting them in trouble—a strategy consistent with the ultimate mission of growing psychology.
Thus, when the time became ripe to consider what ethical constraints to put on an
important group of psychologists, two factors that could conceivably have created internal
pressure in APA for those ethical constraints to be strong—an Ethics Director focused
principally on an analysis of ethics, torture, and psychological distress by those in captivity, and
an ethics approach that had a robust focus on the integrity of the profession and the protection of
the public – were not present.
6.

The creation of the Task Force and selection of its members

The idea of the PENS Task Force arose from the intersection of two forces: First, one of
the CIA’s lead psychologists (Kirk Hubbard), who had been working closely with the APA
Science Directorate (as summarized in section III.C below), emailed APA in March 2004 to say
that he and CIA contractor psychiatrist Andy Morgan had concerns that psychologists were
assisting interrogations in ways that contradicted the APA Ethics Code. (There is reason to
doubt whether Hubbard actually shared this concern; the more likely explanation appears to be
that Hubbard was passing on a concern shared by Morgan and one of Hubbard’s colleagues, Kirk
Kennedy, who was undercover at the time and is now at the FBI.) This email prompted internal
discussions that led to a July 2004 confidential meeting at APA for CIA, DoD, FBI, and
academic psychologists and psychiatrists to discuss the issue. Second, the April 2004 media
disclosure of the Abu Ghraib abuses led to intense media coverage on this issue, which led to
requests from APA members to APA leadership that it address the issue. Behnke took the lead
on the issue and, in internal emails and meetings in May 2004, suggested that APA take a
“cautious” approach (perhaps by studying the issue through a task force), and that the approach
be “forward looking, positive, [and] supportive” to national security psychologists and not “cast
a shadow” on such psychologists or suggest that they were under suspicion.
Little happened after this July 2004 confidential meeting, despite some attempts by two
DoD (and former CIA) psychologists, Kirk Kennedy and Scott Shumate, to push APA to take

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some concrete steps on the issue. Then, on November 30, 2004, the New York Times published
an article revealing allegations from a leaked report by the International Committee of the Red
Cross that psychologists at Guantanamo had been involved in psychological and physical
coercion that was “tantamount to torture.”
The article prompted an immediate and sustained effort by APA executives, including
Behnke, to figure out how to address the issue from a messaging perspective. Within days, the
idea of a task force—suggested at that time by President-Elect Koocher, clearly in part as a
reaction to the threat that a pro-human-rights division in APA would push for an aggressive
resolution in the Council of Representatives that would likely be very negative for DoD and
intelligence psychologists—was discussed, and internal steps were taken to implement it. The
Board tentatively approved the idea at its December 2004 meeting, and work on selecting
potential task force members began in early January (accelerated by another concerning article
on the topic by Gregg Bloche and Jonathan Marks in the New England Journal of Medicine).
Although the ultimate PENS Task Force was intentionally weighted in favor of the DoD
(a critical factor in its outcome), the initial staff-recommended task force members were more
equally divided. By mid-January, Behnke and staffers in the APA Science Directorate had
chosen ten recommended task force members and about ten to fifteen back up candidates. The
ten recommended names included five non-military/government psychologists (including three
who wound up on the task force—Jean Maria Arrigo, Olivia Moorehead-Slaughter, and Michael
Wessells), one non-military/government psychologist who had conducted trainings for the
military and FBI, and four military/DoD psychologists (including Debra Dunivin, and one who
wound up on the task force—Michael Gelles).
However, things had changed by the February 2005 Board meeting. Prior to the Board
meeting and vote, APA (apparently through Russ Newman) confidentially consulted with
Morgan Banks about the language of the actual Board agenda item defining the fask force
proposal before the APA Board voted on it, and Banks provided written comments. At the
Board meeting, with Levant, Koocher, and Newman participating in the discussion on this item,
the Board authorized the creation of the task force but decided not to accept the staff
recommendations and decided instead to solicit task force nominations from APA divisions and
members.
Almost immediately, Dunivin intervened in the process, insisting to Levant and Behnke
that Banks must be included in the task force, and that the composition of the task force was
“critical to accomplishing its mission.” Dunivin then delivered a strongly-worded letter to
Behnke the day before the March 2005 meeting of the task force selection committee (Levant,
Koocher, APA Board member Barry Anton, and Behnke), in which she identified all but one of
the six DoD members initially chosen for the task force. This letter was the sole outside
document present before the selection committee during its deliberations. The other document
was a thick binder of the 111 prominent psychologists who had been nominated for the task
force, about 70% of whom were non-military/government psychologists.
Nevertheless, the selection committee chose six (out of the 10) military/DoD
psychologists. They were Banks, Shumate, Larry James (an Army Colonel who was deployed to
Guantanamo as the lead BSCT psychologist prior to Dunivin, and was also deployed to Iraq after

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the Abu Ghraib controversy to help address the problem), Michael Gelles (a Navy Criminal
Investigative Services psychologist), Bryce Lefever (a Navy psychologist who previously had
been a SERE instructor), and Robert Fein (a DoD contractor who worked in CIFA with Shumate,
and also had been appointed by the Director of Intelligence to the Intelligenc Science Board). Of
the other four, one (Moorehead-Slaughter, the Vice-Chair of the APA Ethics Committee) was
made the non-voting chair of the task force by the selection committee, and she later went along
with the direction that the military/DoD psychologists and Behnke pursued at the meeting. The
others were Jean Maria Arrigo, Nina Thomas, and Michael Wessells. The result was a task force
tilted 6 - 3 in favor of DoD officials. In addition, Koocher and Anton were named Board liaisons
to the task force, and Koocher, in particular, took aggressive and vocal positions against the three
non-DoD members: thus, the split was effectively 7 - 3 while Koocher was at the meeting.
These importantly-timed and confidential consultations with Banks and Dunivin appear
to have been unique—we did not find evidence of APA having similar consultations with other
individuals or constituencies. And they were highly influential.
7.

Discussions before the meeting

A task force listserv for TF members and key APA officials (Behnke, Koocher, and
Anton) was established in April 2005. At least four important things occurred during the
discussions on the listserv between April and June, leading up to the task force meeting. First,
the behind-the-scenes communications show that Behnke was actively managing the direction of
the discussions on the listserv, in part by drafting emails in which decisions were made or topics
suggested for the task force chair (Moorehead-Slaughter), who would then send them to the
listserv verbatim. An analysis of her emails on the listserv shows that virtually all of
Moorehead-Slaughter’s postings were written by Behnke, which Moorehead-Slaughter and
Behnke conceded to us.
Second, Banks and Behnke collaborated behind the scenes about the eventual content of
the task force’s report, with the result that the key high-level framework set out in the then-draft
DoD policy regarding the participation of psychologists in interrogations was (i) proposed by
Banks on the listserv as a good framework for the task force, and then (ii) recommended by
Behnke (through Moorehead-Slaughter) as a good framework for the task force. (This draft DoD
policy was written by Banks and Dunivin and later converted almost verbatim to official DoD
policy.) The framework—interrogation practices must be “safe, legal, ethical and effective”
(“SLEE”) —was touted by Banks as a safeguard that would somehow ensure the humane
treatment of detainees. In reality, however, it was a malleable, high-level formula that easily
allowed for subjective judgments to be made, including by people such as Banks who interpreted
the formula to permit stress positions and sleep deprivation in some circumstances. The
evidence shows that minutes before Behnke sent Moorehead-Slaughter a draft email from his
computer laying out the argument for the SLEE framework (which she posted verbatim minutes
later), Banks had made the final edits on a document on his computer highlighting some of the
same arguments for the SLEE framework (a document that was then likely shared with Behnke).
And the SLEE framework became one key portion of the task force’s report.
Third, the meeting group was expanded in a careful way by adding two “observers” who
were affiliated with the military and intelligence community. After several days of internal staff

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consultation and planning about how to add observers to the task force meeting, Behnke (through
Moorehead-Slaughter) posted an email on the listserv inviting observer recommendations. In a
coordinated fashion, twenty minutes after Moorehead-Slaughter’s post, Barry Anton
recommended APA Practice Directorate chief Russ Newman as an observer (despite Newman’s
conflict arising from his marriage to Dunivin, the Army’s lead interrogation-support psychologist
at Guantanamo, described above). Ten minutes later, Banks posted that he agreed. And a short
time later, Moorehead-Slaughter declared that Newman would be included. Michael Gelles
subsequently recommended long-time CIA contractor/psychologist Mel Gravitz (sometimes
called the “father of operational psychology”), and he was quickly “confirmed” by MooreheadSlaughter. Our investigation uncovered that Gravitz had played an important role inside the CIA
in clearing the way for CIA contract psychologist Jim Mitchell to continue participating in CIA
interrogations in 2003 after some within the CIA protested that his work was unethical, and had
also attempted to influence an APA 2002 disciplinary proceeding against Michael Gelles. 4
In contrast to the quick approval of Newman and Gravitz as observers, suggestions by
others (such as the suggestion from non-DoD task force member Jean Maria Arrigo that the
medical ethicist for the American Medical Association be invited) were ignored. 5 Both Gravitz
(who was there for the second and third days of the meeting) and Newman spoke during the
meeting in ways that supported the military/DoD psychologists. And Newman spoke forcefully
about the importance of achieving APA’s PR goals in a manner that was inconsistent with the
efforts by some of the non-DoD psychologists to push for stricter, more specific ethical
guidelines.
Fourth, efforts by Jean Maria Arrigo to set a broad agenda for the discussion and to ask
whether certain assumptions behind the task force were correct (for instance, whether it was
4

In 2003, in response to an internal dispute within the CIA about whether it was ethical for CIA contract
psychologist Jim Mitchell to continue to participate in interrogations, Gravitz provided a written ethics
opinion to Mitchell and the CIA in which he concluded that the APA Ethics Code should be “flexibly”
interpreted and important weight given to the “ethical obligation” to protect the nation from harm. As a
result of Gravitz’s opinion, we were informed, Mitchell was able to continue his participation in the
interrogation program. This is discussed in Section III.C of the Executive Summary, below. We also
learned that in 2002, when Gelles was being investigated by the Ethics Office for a disciplinary complaint
(as has been publicly reported) relating to his interaction with a soldier under criminal investigation for
espionage, Gravitz made a point of speaking to Behnke about the case and warning him that action
against Gelles could harm national security. Behnke said that this had no effect on him, but he later took
over the investigation from the assigned investigator (who strongly believed that Gelles had committed an
ethical violation) in an unusual fashion during her temporary absence, causing the investigator to say that
Behnke was manipulating the situation and taking advantage of her absence. After Behnke’s
involvement, the APA Ethics Committee voted unanimously to find no violation against Gelles. This is
discussed in Section III.E of the Executive Summary, below.

5

Behnke invited two FBI psychologists to attend as observers, but they declined. While Newman,
Gravitz, Koocher, and Levant sat at the table with the task force members, other observers sat in chairs
along the side of the room. These were all APA staffers, including Science Directorate staffers Mumford
and Kelly, but also included former APA Science Fellow and then White House science staffer Susan
Brandon. Brandon did not speak at the meeting but contributed language to part of the report, as
discussed below.

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realistic to create a system of enforceable ethical guidelines for psychologists operating in a
classified environment, since enforcement by a professional association would likely be
impossible), were quickly rebuffed by Koocher in aggressive listserv posts. This was an
intentional effort to curb dissent to the frame of reference APA had already decided upon—that
the task force would issue a report at the end of three-day meeting that would conclude that
psychologists could ethically support interrogations, thus pleasing DoD, and that would be
written in a manner that would provide APA with a good media statement to respond to the
perceived negative press.
8.

Task Force meeting and report

Our understanding of what occurred at the task force meeting and the behind-the-scenes
drafting of the report was aided by interviews with every task force member and all but one
observer, and the review of many documents and previously-undisclosed contemporaneous
handwritten notes.
The 2 ½ day meeting on June 24-26 in the APA board room resulted in a report drafted
by Steve Behnke over those three days that, with two minor changes by the APA Ethics
Committee a few days later, became the PENS Task Force Report. The report said that
psychologists could serve as consultants to national security interrogations consistently with the
Ethics Code, and articulated two high-level limitations on that activity, without further
significant definition: psychologists could not be involved in torture or cruel, inhuman or
degrading treatment, and psychologists should attempt to ensure that interrogation methods were
safe, legal, ethical and effective.
As one of the DoD task force members who thought the report should have gone farther
told us, this language was “loose” and “not defined.”As he noted, key issues – whether a
psychologist could cause psychological distress or physical pain to a detainee; if so, whether it
was important to differentiate between “harm” and distress / pain; and if so, how one drew the
line—were not addressed in the report despite the fact that an early draft of the report did attempt
to cover those issues. (At Banks’s request, and to a lesser extent James’s, the report did not
restrict psychologists from continuing to access detainee medical records, and instead prohibited
psychologists from using them to the detriment of the detainee’s safety and well-being.) As this
DoD task force member said and a wide variety of evidence confirms, these “loose” limitations
were intentionally chosen by Behnke because they reflected what Morgan Banks and key parts of
DoD wanted.
a)

Key DoD Task Force members

Of the six DoD task force members, Banks and Scott Shumate appeared to have the most
prominent positions within DoD, and Banks worked integrally on interrogation support issues.
(Shumate, apparently, did not, although he apparently had done so while at the CIA.) As
Command Psychologist for the Army Special Operations Command and the senior Army SERE
psychologist, Banks worked closely with and was involved with the Army psychologists at
Guantanamo Bay and elsewhere who supported interrogations, including Dunivin. Banks came
into the task force with a concrete idea of what the task force report should say, and should not
say, as he and Dunivin had already drafted what would become Army (and therefore DoD)

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policy regarding the details and limitations on using psychologists in interrogations (a
confidential internal Army document that he distributed at the meeting).
The evidence shows that at the meeting, Banks was “persistent” about his agenda, in the
words of a DoD task force member. His agenda was to get the APA’s “good housekeeping” seal
of approval for the involvement of psychologists in interrogations, and to otherwise keep the
status quo and avoid limits or constraints beyond the ones the Army or DoD had in place (or
would decide to put in place in the future).
Banks told task force members that he had consulted with his generals within his U.S.
Army Special Operations Command and had already come to an agreement with his leaders that
the “safe, legal, ethical, and effective” framework was the appropriate way forward. He also
made a reference to “his generals” during the meeting, presumably a reference to the
commanding generals of Army Special Operations Command and the Army Medical Command
(the Army Surgeon General), and perhaps of the U.S. Special Operations Command, the Joint
Task Force – Guantanamo, and the U.S. Southern Command. And the evidence shows that the
Army Surgeon General’s Office was in fact in the midst of developing DoD policy on this issue.
Banks said and gave the impression that he did not want other DoD members to deviate
from the direction he was pursuing. For most of the DoD members, this was either
unobjectionable or in line with what they wanted to achieve. Gelles and James both believed
psychologists should continue to be involved as consultants in interrogations, and at the time this
remained a significant part of Gelles’s job as a criminal investigator with NCIS. And both
Gelles and James indicated in the meeting, in different ways, that a high-level report would
probably be preferable to a more specifically-defined one. Shumate made it clear that he was
uncomfortable with public disclosure of specific examples that might provide further guidance;
that he thought “coercive” was too broad a word to be used in this context; and that he wanted to
manage the task force’s public message by using words that softened the reality of the pressure
DoD psychologists faced to help produce actionable intelligence. Fein, a DoD contractor within
Shumate’s unit, did not say as much but was not going to object to the positions of actual DoD
officials.
Lefever, different than the other DoD members, believed the task force would accomplish
little if it did not provide specific, defined guidance about when a psychologist could
intentionally inflict physical pain or psychological distress, and how to determine an
approximate line between pain and harm. In his desire for greater specificity, Lefever was
actually in agreement with the task force’s two substantial dissenters—Wessells and Arrigo—
although he was in sharp disagreement with them about where to draw specific lines. Lefever
said that once it became clear to him that the task force’s APA leadership (Behnke, Koocher,
Anton and Newman) and chair (Moorehead-Slaughter) were not going to insist that the report go
beyond a high-level, loose set of guidelines, he stopped trying to push for greater specificity and
accepted the result, which he saw as unobjectionable but a clear failure of leadership.
b)

Efforts by non-DoD Task Force members

There were two very strong pushes by Wessells during the meeting that—if accepted—
would have created a report with tighter, more specific ethical constraints on national security

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psychologists involved in interrogations, in ways that would have been inconsistent with the
strong preferences of Banks and DoD. The first, an attempt to use the provisions of the Geneva
Conventions or other common international law sources to define the high-level terms being
discussed at the meeting, was joined strongly by Arrigo and Nina Thomas. This attempt was
rejected by the other members of the task force, and was therefore rejected in the Behnke-drafted
task force report. The second, a subsequent attempt to create specificity within the document in
other ways, by discussing where to draw the line between permissible and impermissible
interrogation techniques was primarily pushed by Wessells, and was also rejected.
First, Wessells argued strenuously during the meeting’s first day that the government’s
explicit departure from the applicability of Common Article 3 of the Geneva Conventions was
wrong, and that regardless of the government’s position, psychologists should declare that they
would be bound by its terms and common understandings. Wessells, a Columbia University
public health and psychology professor who is an expert in the protection of children during
international conflicts and who spent the vast majority of his time and work abroad in war zones,
wanted to tap into established language in some of the most basic and longstanding international
human-rights documents. 6 At the meeting, he argued that it was important for APA to go
beyond the narrow U.S. government definitions in setting ethical guidelines for psychologists:
What kind of damage [will be done] to APA if we say we do not support human
rights as defined in the Geneva Conventions and other conventions? What about
[the] damage to our national security? If we engage in human rights violations,
the message that sends to other countries [is damaging to our national security].
They therefore become our enemies and attack. . . . The standards [on
international human rights] are not an issue for debate at this point. . . [The] APA
Code commits us to human rights. Does American law trump international law?
As a professional society, do we have commitments in [the] human rights
direction? If we aspire to these things, can we throw international human rights
away? APA is diverse but the diversity is not represented here. . . . We would
damage ourselves as an association if we support American law when it
contradicts international law. DoD has defined a set of standards not congruent
with international law. If we endorse that, we damage our credibility. . . . As a
professional association, at a moment of national panic, [we must] take a high
standard.
Thomas and Arrigo spoke up in favor of this position.
6

Common Article 3 of the Geneva Conventions provides that detainees shall be “treated humanely” and
that therefore “violence to life and person, in particular . . . cruel treatment and torture,” and “outages
upon person dignity, in particular humiliating and degrading treatment” were prohibited. The United
Nations Convention Against Torture (Art. I, § 1) defines “torture” as an act that intentionally inflicts
“severe [physical or mental] pain or suffering” on someone for one of several purposes, including
obtaining information or a confession, punishing him, or intimidating or coercing him or a third person.
Customary international human rights law, as defined by the International Committee on the Red Cross,
defines “inhuman treatment” the same way as this definition of “torture” but without the specific-purpose
requirement, and defines “degrading treatment” as acts that humiliate, degrade, or otherwise violated the
person’s dignity. See https://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule90.

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The DoD members suggested that they agreed in principle with the Geneva Convention
provisions but said they could not accept a position that varied from the requirements of U.S.
law. (“[I] cannot take a public stand opposed to the U.S. government,” said one.) In other
words, as DoD officials they could not agree to be bound by constraints on their behavior that
went beyond the constraints set by U.S. law.
While this position may have been understandable as a statement of U.S. governmental
policy (as opposed to APA policy), APA President-Elect Koocher also attacked the idea of the
APA tapping into international law definitions in crafting ethical guidance, calling it a
“distraction” to draw international law into APA’s ethics guidance. As a result of this opposition
the report rejected the use of or reference to international law, except to the extent it was
incorporated into and consistent with U.S. law (as then defined, including through the DOJ
memos).
Some say that this conclusion shows the automatic impact that selecting a majority of
DoD officials had on the task force’s conclusion. But we think that it actually shows an even
more intentional decision by the APA task force leaders and the DoD psychologists not to
voluntarily commit psychology as a profession to a more robust set of ethical limitations. To do
so would have shown leadership on the issue in a way that likely would have put APA at odds
with DoD and the Administration. This may have caused a conflict that would have caused DoD
to employ fewer psychologists or to write policy that subordinated the role of psychologists in
interrogation and detention matters; and it may have prompted some DoD psychologists to leave
APA membership (although Banks was already outside the APA).
But sometimes, leadership in this manner causes external change rather than just conflict.
Thus, taking this direction (especially if the other leading health-care professional associations
also took ethical positions that were less accepting of the Administration’s position, as they
ultimately did) may have caused, or placed pressure on, DoD or the Administration to change its
position regarding the use of international-law definitions in these circumstances. By going
along with the “simply follow U.S. law” position of the DoD task force members, the APA task
force leadership was making an explicit choice to follow what DoD wanted rather than making
an independent decision about what were the appropriate ethical rules for psychologists in these
situations (other than the decision that what was best for DoD was best for APA).
Second, Wessells argued during the meeting’s second day that the report should contain
sufficient specificity regarding what interrogation techniques psychologists could be involved or
consult on. 7 The context for this discussion was Behnke’s draft report, circulated at the
beginning of the day, that included a paragraph prohibiting psychologists from “consult[ing] on
techniques that would cause psychological distress,” with a very large loophole— “except for a
clear, legitimate purpose, such as to prevent future acts of violence.” The loophole was limited
by the next sentence which provided, “Punishment and obtaining a confession do not constitute
legitimate purposes.” This language incorporated a portion of the United Nations Convention
7

Behnke told us during his interviews that the issue of where to specifically draw the line between proper
and improper interrogation techniques was not one of the Task Force’s key issues and therefore did not
garner his close attention as much as other issues. We did not find this statement credible or supported by
the evidence.

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Against Torture’s definition of torture, which provided that for an act to be considered torture of
an individual, it must be done for one of several purposes, including obtaining “information or a
confession” from a detainee, “punishing him,” or “intimidating or coercing him or a third
person.” Behnke used the “confession” and “punishment” limitations, but left out the “obtaining
information,” “intimidating,” and “coercing” limitations. 8 Thus, Behnke’s draft allowed
psychologists to recommend an interrogation technique that would cause psychological distress
as long as their purpose was to get information in order to prevent future acts of violence, and
was not to “punish” or obtain a “confession.”
Even this fairly minimal restriction on causing psychological distress provoked
opposition from several of the DoD task force members, especially Banks. And Banks ended up
writing out by hand completely different language (based on an additional side concern raised by
Arrigo) that created no restrictions whatsoever and became the new version of this paragraph.
The language provided that psychologists who consult on interrogation techniques “are mindful
that the individual being interrogated may not have engaged in untoward behavior and may not
have information of interest to the interrogator.” 9
Wessells clearly recalls speaking up forcefully about the need for specific prohibitions
regarding either (i) certain interrogation techniques, such as stress positions and sleep
deprivation, or (ii) how to describe whether pain or distress can be intentionally inflicted. The
contemporaneous notes (albeit sketchier from the second day because a note-taking blackout was
imposed toward the end of the first day) corroborate him. The notes show sleep deprivation and
“the disorientation techniques” being discussed, as well as concerns that “the gray areas” were
not being addressed by the document and that it needed to address what “point on the dial”
(regarding interrogation techniques) was too far. Wessells argued that the discrepancies between
the U.S. government’s position and the U.N. Convention Against Torture, arguing that the report
allowed psychologists to engage in “unethical procedures,” and saying, “our reputation in this
profession depends on this document.”
Behnke, however, said that the task force needed to “attend to [the] level of specificity in
[the] document so as not to cause difficulties.” And some of the DoD members made it clear
that they agreed. Thus, what was then discussed – and promised to Wessells and the other nonDoD task force members – was that the more specific prohibitions and guidance desired by
Wessells would occur in a follow up “casebook”-like document that would contain examples to
8

Behnke’s draft also created a strange second limitation – that psychologists in these situations needed to
follow the restrictions set out in a research provision of the Ethics Code, Standard 8.07, which provides
that psychologists do not deceive prospective research participants about research that is reasonably
expected to cause “physical pain or severe emotional distress.” Behnke said he could not recall why he
included this provision as a type of limitation. Brandon’s contemporaneous handwritten notes record that
she found this provision “disingenuous” because “distress in research is not equal to stress in
interrogation.” HC00017699; Brandon Notes (undated) (on file with Sidley).

9

Banks said, “[o]ften we do try to exploit psychological distress,” but added, “[w]e need the boundaries.”
Nevertheless, his proposal for revising this paragraph shows that he did not want the Task Force report to
impose additional boundaries beyond any that were created by his high-level “safe, legal, ethical and
effective” language. Arrigo PENS Meeting Notes (June 25, 2005).

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guide psychologists about where the ethical line was. Shumate was mostly against the idea: he
said the examples “would be awful” and “would alarm people,” and pointed out that APA could
generate a casebook independent of the government’s position, but “DoD psychologists can’t”
(since they inherently could not be independent of DoD). Neverthless, Behnke promised
Wessells, Arrigo, and Thomas (as they clearly recall) that the task force report was just “an
initial step,” and that the casebook would be issued by APA after some sort of consultation with
the task force members. Wessells clearly recalls pressing Behnke to commit to a time frame for
the casebook, and Behnke promising it would be completed in four to six months.
Thus, two pushes for ethics positions that would have made the task force report a very
different document were explicitly made but rejected by the DoD task force members and the
APA task force leadership. The three non-DoD members acknowledge that if they had firmly
and officially dissented and refused to accept the task force report, this might have made a
difference. And in fact, Behnke and other APA leaders have consistently cited the final sign-off
on the report by the three non-DoD members as proof that the document does not merely reflect
a pro-DoD position.
c)

Ultimate “approval” by non-DoD Task Force members

The three non-DoD task force members clearly came to regret going along with the report
at the end of the meeting. They insist that their failure to issue a final and overall dissent should
not be taken as approval of APA’s claim (made one day after the task force report was made
public) that the report set out “strict ethical boundaries,” since they had been told that APA only
considered the report a first step and that the actual “boundaries” would be set out in a follow-up
casebook. For Wessells in particular, and for Arrigo as well, the explicit promise that the report
was simply an interim step to be quickly followed by a more thorough set of specific guidelines
was crucial to their agreeing to sign off on the report. Wessells clearly felt duped when he was
told six months later that nothing had been done on the casebook. He resigned from the task
force six months later.
Arrigo and Thomas also cited a feeling of intense group pressure from the much larger
group of DoD task force members and APA leaders (all men, they point out) to go along at the
end, in order to enable APA to make a clear and positive public statement that APA was “against
torture.” Arrigo, Thomas, and Wessels all cited to us the “groupthink” psychological
phenomenon as something that may have been a factor in their going along at the end, in addition
to their belief that this was not—and would not be portrayed by APA—as a final, strong set of
“strict ethical guidelines.” In addition, many of the task force members and observers (both DoD
and non-DoD) told us that there was a real “us vs. them” split in the room between DoD and
non-DoD task force members, and that all the DoD members except for Banks sat on one side of
the table, across from the non-DoD members.
Adding to this dynamic was the participation of Koocher (on the first day) and Newman
(throughout the meeting) who both spoke up forcefully in opposition to some of the key points of
the non-DoD task force members. 10 Banks and the DoD task force members had allies in
10

Koocher’s aggressive style of going on the attack against the non-DoD Task Force members continued
after the meeting, when he attacked Wessells’s resignation as meaningless because the Task Force no

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Koocher, Newman, and Behnke. These APA officials agreed with the strategy of deferring to
DoD’s preferences and shared the goal of ensuring that the result of the meeting was a document
that APA could use for positive PR purposes, which “calm[ed] the issues,” avoided “rekindling
the fires,” and “clarified” and “simplified” the message that press accounts had “messed up.” In
their view, APA needed a clear, straightforward, public statement—without delay—that would
solve the PR problem by portraying APA as a professional association that was taking action to
set ethical guidelines rather than sitting on the sidelines, while keeping DoD psychologists as
involved and unconstrained as possible.
Based on what we have seen in our investigation, we agree with the three contributing
non-DoD task force members that it is unfair for defenders of the APA task force report to use
their end-of-report approval as evidence that the report simply reflected the consensus of a
diverse task force rather than an intentional pro-DoD approach. The behind-the-scenes evidence
squarely contradicts this, and a proper reading of the meeting proceedings is inconsistent with
this as well.
d)

“Safety Monitor” argument

One of the primary points emphasized by Behnke and Banks in their interviews with us
was that having psychologists involved in interrogations to observe the interrogators was of
critical importance in ensuring the safety of the detainee. The rationale is that psychologists’
training in human behavior makes them uniquely situated to watch for and stop “behavioral
drift” —the phenomenon identified in Philip Zimbardo’s famous Stanford prison experiment and
elsewhere that when individuals use their position of authority and absolute control over others
to cause them discomfort or pain, the individuals with this power will often tend to drift toward
greater and greater uses of that power unless stopped. Banks, along with Lefever and others who
taught at military SERE schools say that this is a key and legitimate role for psychologists at
SERE training, since without such a “safety monitor,” even SERE instructors pretending to be
captors of U.S. soldiers may go too far. In fact, when Air Force SERE personnel were brought to
Guantanamo Bay in December 2002 to provide guidance about “employing ‘SERE’ techniques
during detainee interrogations,” the instructors’ Standard Operating Procedure memo used the

longer existed. This comment was highly disingenuous since Wessells’ resignation came in reaction to an
email to the Task Force from its chair stating that the Task Force’s work continued in order to help
consult regarding the potential “casebook.” In his criticism of Wessells, Koocher also called the head of
the rival American Psychiatric Association “an idiot full of sound and fury” (quoting Shakespeare), and
months later attacked Arrigo for having “personal [] biases” and a “troubled upbringing” because she had
revealed at the beginning of the Task Force meeting that her father had been involved in torture with the
CIA’s predecessor agency, the OSS. PENS listserv (Jan. 15, 2006); APA_0095571. Newman was
known as a “bulldog,” in the words of his former APA colleagues, and he told us that when he spoke up
at the task force meeting, he was doing so with the clear purpose of trying to strongly influence the
outcome.

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term “Watch Officer” as a standard position within SERE procedures (although the memo did
not specify that the Watch Officer needed to be a psychologist). 11
Psychologists ranging from the APA’s leading critics to Susan Brandon and Michael
Gelles have expressed doubt that psychologists are uniquely or well situated for this role,
especially outside of a SERE training context. For purposes of our discussion here, we assume
that having someone monitor interrogators for “behavioral drift” would be an important part of
the interrogation process if the interrogator is intentionally inflicting some form of physical
coercion or psychological distress (as in SERE training). And it seems reasonable that the
training and experience of psychologists would make them among the best candidates for
playing the role of “safety monitor” or “watch officer” by watching the behavior of the
interrogators.
However, Banks, Dunivin, Behnke, and others who emphasize this role for psychologists
in interrogations, and who tend to use it as the primary (and positive-sounding) justification for
including psychologists in the interrogation support process, 12 are also quick to say that
psychologists should be included in interrogation support because they help make the
interrogations “effective.” This was one of the four pillars of the Banks/Dunivin “safe, legal,
ethical and effective” formula that the PENS report adopted. And the PENS report made it an
ethical obligation of psychologists working on interrogations to try to rely on methods that are
“effective.”
Their theory is therefore that when psychologists are involved in an interrogation of a
non-cooperative foreign detainee considered an “unlawful combatant” suspected of knowing
important information, in an environment of intense pressure to produce actionable intelligence
to protect the American public and in which the protections of the criminal justice system do not
apply, psychologists should be playing two roles at the same time: (1) strict monitor of the
interrogator, including promptly telling the interrogator (or telling his supervisor or commander)
that he is going too far and needs to stop, and (2) partner of the interrogator in trying to engage in
interrogation techniques that will be effective in getting the detainee to be cooperative and to tell
the truth about what he knows.
This strikes us as either naïve or intentionally disingenuous. The pressures on the
psychologist in this situation not to stop the interrogator from becoming more aggressive are
very significant – both because the interrogator and psychologist are working together to make
the interrogation effective and likely have a need to work together on an ongoing basis on other
interrogations; and because the psychologist likely would be utilizing his subjective judgment in
telling the interrogator that he has gone “too far” (a judgment that can easily be subject to
criticism and second guessing) rather than an objective judgment based on clear lines drawn by
external sources (e.g., DoD or APA guidelines). One would think that mature, confident
11

JTF GTMO “SERE” Interrogation Standard Operating Procedure, Guidelines for Employing “SERE”
Techniques During Detainee Interrogations (Dec. 10, 2002), available at
http://nsarchive.gwu.edu/torturingdemocracy/documents/20021210.pdf

12

See PENS Report at 1 (“psychologists are in a unique position to assist in ensuring that [interrogation]
processes are safe and ethical for all participants”).

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psychologists primarily committed to the role of “safety monitor” would be able to overcome
these pressures in most situations. But this would depend on the individual psychologist, and the
context of the individual situation. In other words, it might work or it might not.
Just as it makes little sense to say that SERE techniques can be “reverse engineered” for
detainee interrogations with little fear of lasting psychological damage because they are used
safely in controlled environments on informed, consenting U.S. soldiers, so too does it make
little sense to say that a “watch officer” will always be solely motivated to stop an aggressive
interrogation of a detainee because it works successfully in SERE training when there is no
actual concern that public safety will be compromised if the “interrogators” do not get
“actionable information” from the pretend “detainee.” This is especially true when the “watch
officer” is also being asked to help make the interrogation as effective as possible.
If Banks and Behnke really believed that safety was the only reason a psychologist
needed to be involved in interrogations, they could have written the PENS report to limit a
psychologist’s role in interrogations to this function. The report could have said that
psychologists may support interrogations only by playing the role of safety monitor to ensure the
safety of the detainee by watching the interrogator to ensure that behavioral drift does not occur.
But as Gelles pointed out, this would mean that a psychologist could not consult in the way
psychologists typically do in law enforcement situations, by advising on interrogations and
investigations to make them effective in environments in which the protections of the criminal
justice system apply. And neither Banks, Dunivin and DoD nor Behnke and APA wanted to
impose such a significant limit on the involvement of psychologists in national security
operations.
Similarly, some APA defenders told us that they only intended the PENS task force
report to allow psychologists to support interrogations by recommending “rapport-building”
techniques, not physical or aggressive ones. But the report does not say this, although it could
have. Given (i) the public awareness of the Bush Administration’s narrow understanding of key
terms like “torture” and “inhumane” and its claim that the Geneva Conventions did not apply, (ii)
the widespread media reports about abusive interrogation techniques, and (iii) the explicit
discussions at the PENS meeting and the media about specific techniques like stress positions
and sleep deprivation, it was obvious to everyone involved in the PENS Task Force that national
security psychologists would be asked to advise on interrogation techniques that went well
beyond rapport building. The PENS Task Force report could have said that psychologists may
support interrogations only by recommending techniques that constitute rapport building. But as
with the other limitations, this was not consistent with Banks’ and DoD’s preferences (and
therefore Behnke’s and APA’s) that the role of psychologist not be limited beyond whatever
constraints DoD itself had in place.
Some critics who have correctly alleged that APA-government collusion led to the PENS
Task Force report further allege that APA’s motive must have been based on the rationale of the
Justice Department memo, under which harsh interrogation techniques are not torture if a
psychologist or other relevant expert says the technique to be applied will not cause severe
physical or psychological suffering. We did not find evidence that this Justice-Departmentmemo rationale was part of the thinking or motive of APA officials. We obviously cannot
determine whether this was an important, behind-the-scenes rationale for some government
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actors. But we did not see evidence that this rationale was discussed with or was an important
consideration for APA officials.
9.

Other issues in the Task Force report
a)

Application of Ethics Code

At the July 2004 meeting at APA with CIA, DoD and FBI psychologists – the precursor
to the PENS meeting—CIA psychologist Kirk Hubbard argued that the APA Ethics Code should
not apply to work by psychologists in national security operations, such as interrogations,
because a code written for the ethical treatment of patients was not a good fit for this different
context. 13 The PENS report explicitly rejected this argument and noted in its introduction that
the Ethics Code binds psychologists whenever they take actions as a psychologist and therefore
applies to work on national security interrogations. The report also made it clear in one of its 12
ethical guidelines that the Ethics Code provision prohibiting “multiple relationships” meant that
it was unethical for a psychologist to both consult on a detainee’s interrogation on behalf of the
government and act as the detainee’s health care provider.
These were positive points in the PENS report, and the first one constituted a refusal to
go along with a position previously advanced by the APA’s lead contact at the CIA (although the
CIA appeared be effectively unrepresented at the PENS Task Force, with the possible exception
of Mel Gravitz in light of his substantial connections to the CIA). On the other hand, Behnke
described these as clear and easy points to make, and we note that the DoD officials were not
opposed to them.
b)

Ethical obligation to detainee

The 11th PENS ethical guideline says that psychologists have “ethical obligations to
individuals” who are not their clients, including “to ensure that their activities in relation to the
individual are safe, legal, and ethical.” In making this statement, the PENS report cites Ethics
Code standard 3.04 (“Avoiding Harm”), which says that “psychologists take reasonable steps to
avoid harming . . . others with whom they work, and to minimize harm where it is foreseeable
and unavoidable.” The PENS report statement does not specifically mention interrogations, but
the statement means that psychologists consulting on interrogations have an obligation to follow
standard 3.04 with regard to detainees.
However, if physical pain and psychological distress do not automatically equate to
“harm,” as some of these DoD psychologists said, then the failure to provide any specificity
about how to determine whether interrogation techniques that intentionally cause pain or distress
constitute “harm” means that standard 3.04 may not provide substantial protection. For instance,
13

Former CIA colleagues of Hubbard’s, Kirk Kennedy and Andy Morgan, told us that prior to this
meeting, Hubbard had given them the opposite impression—that he believed the APA Ethics Code did
apply and should be applied to the involvement of psychologists in interrogations. That Hubbard’s belief
was the one he described during the July 2004 meeting surprised and disappointed them, they said. After
retiring, Hubbard wrote an article in 2007 that suggested that this was his position. Kirk M. Hubbard,
Psychologists and Interrogations: What’s Torture Got to Do with It?, Analyses of Social Issues and
Public Policy (2007) at 2.

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Banks’s view was that some stress positions were “safe” and therefore might be properly used as
interrogation techniques. (He cited the “push up” stress position to us as an example.) Similar,
the PENS report refused to take a position on sleep deprivation despite being asked to do so.
Furthermore, we found it highly notable that the PENS report introduction omits the “do
no harm” principle from its discussion of the key Ethics Code principles. The Ethics Code sets
out aspirational principles “to guide and inspire psychologists toward the very highest ethical
ideals of the profession.” The very first sentence in the first principle says, “Psychologists strive
to benefit those with whom they work and take care to do no harm.” Remarkably, the PENS
report avoids this sentence and quotes instead from the next sentence: “In their professional
actions, psychologists seek to safeguard the welfare and rights of those with whom they interact
professionally and other affected persons”. Behnke told us he could not recall why he did not
include the “do no harm” sentence but did not think its exclusion had much significance. Our
conclusion is that because of the ambivalence within the DoD task force members about how to
define “harm” as it relates to physical pain and distress, and the desire by Behnke and Banks not
to take a hard-and-fast position that psychologists in interrogation situations can never “do harm”
(despite the Ethics Code principle), Behnke intentionally left out the “do no harm” language.
Addressing this issue specifically would have been feasible in a wide variety of ways, for
instance by providing a non-exclusive list of prohibited specific techniques, or by describing
prohibited conduct by using words such as “abuse,” “physically coercive,” or “intentionally
inflicting physical pain or mental suffering other than mental suffering incidental to lawful
sanctions.” The decision not to do so reflects an intentional decision to keep the PENS report at
a high level of generality at Banks’ request.
c)

Access/use of medical data

One allegation identified in media reports leading up to the PENS Task Force meeting
was that physicians and psychologists were learning of a detainee’s vulnerabilities (such as
phobias) through his medical records and then passing that information to interrogators as part of
the effort to try to break down non-compliant detainees. Notably, the PENS report does not deny
psychologists access to a detainee’s medical records. Instead, it prohibits psychologists from
making improper use of the records (“to the detriment of the individual’s safety and wellbeing”). This was based on a request from Banks, who said that having access to a detainee’s
medical records was important so that a psychologist would have the necessary insight to
determine that a legitimate interrogation technique (such as providing a cooperative detainee
with a candy bar) might cause health problems (by seeing that the detainee was diabetic, for
instance). Because of Banks’s request, the PENS report allowed this access.
APA critic and Georgetown psychiatrist and law professor Gregg Bloche, who knew
Behnke from law school, lobbied Behnke strenuously after the PENS report to change this “no
improper use” provision to a “no access” provision, because of the strong potential for abuse that
could occur as a result of access to detainee records. Behnke did not change it.

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However, one year later, when a Guantanamo Bay “BSCT” 14 psychologist sought a
confidential ethics consultation with Behnke in order to complain that BSCT psychologists’
access to detainee medical records had recently been halted, Behnke strongly urged her not to
push for access to the medical records. But the rationale Behnke articulated was not exclusively
an ethical one, but a PR one as well—that if the media knew that DOD psychologists supporting
interrogations were pushing for access to medical records, even if for legitimate reasons, it would
look horrible. However, when Banks took the same position within the confidential PENS Task
Force meeting, Behnke adopted the position as part of the report.
Behnke and the APA’s position on this issue therefore fits the pattern we saw in this
investigation regarding PENS: positions were taken to please DoD based on confidential behindthe-scenes discussion and with an eye toward PR strategy.
d)

Research

The PENS Task Report contained several recommendations that further research be
conducted. This included a paragraph “encourag[ing] . . . further research to . . . examine the
efficacy and effectiveness of information-gathering techniques, with an emphasis on the quality
of information obtained. . . . Also valuable will be research on cultural differences in the
psychological impact of particular information-gathering methods and what constitutes cruel,
inhuman, or degrading treatment.” A subsequent section recommended that APA encourage
psychologists to engage in research into “methods for gathering information that is accurate,
relevant, and reliable. Such research should be designed to minimize risks to research
participants such as emotional distress, and should be consistent with standards of human subject
research protection and the APA Ethics Code.”
The evidence shows that Mumford, Brandon, Newman, and Gravitz made drafting
suggestions regarding the research recommendations, and at least some of Brandon’s drafting
suggestions made it into the final version.
Critics have pointed to some of this language as an indication that APA was intentionally
attempting to provide ethical support for research on detainees at Guantanamo or elsewhere by
the CIA or DoD, or was otherwise attempting to allow for research that involved harsh
interrogation techniques without the proper human-subject-research protections.
On the one hand, we found two notes in Behnke’s handwritten notes from the PENS Task
Force meeting in which the phrase “research on detainees” or “detainees as research subjects”
was noted. Behnke provided no explanation for these notes, and we found no emails or other
documentary evidence relating to them. In addition, in a meeting at the Department of
Homeland Security about two years earlier attended by Mumford and Brandon, one of the
subjects discussed was collecting data relating to detainees. Sources have told us without
corroboration that there is evidence of the CIA engaging in activity regarding detainee
interrogations that would constitute improper research.

14

Behavioral Science Consultant Team (“BSCT”) psychologists provided support to interrogation and
detention operations at Guantanamo Bay and similar military sites.

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Further, ethics experts have told us that the language in the PENS report quoted above
was woefully deficient in terms of the language that would typically be expected in order to
communicate proper protections. And the language quoted above recommending research into
“what constitutes cruel, inhuman, or degrading treatment” in light of “cultural differences” is
ambiguous, and so may easily be read to suggest that the research being recommended is to
determine if interrogation techniques that Americans would find cruel, inhuman or degrading
may not be consider so bad by other cultures.
On the other hand, we did not see evidence linking these recommendations to any actions
by APA officials regarding research, or suggesting that the recommendations provided
authorization or assistance to the government to conduct human-subjects research without
informed consent. We noted that these recommendations are not within the PENS report’s 12
ethical guidelines, and therefore do not have the force of ethical guidelines for psychologists, in a
way that might be pointed to as a justification for a psychologist’s actions.
We found this a topic on which it was difficult to draw clear conclusions; our discussion
and analysis of the evidence continues in the detailed PENS section below.
10.

“Emergency” action by the Board

After the task force report was finalized in Sunday, June 26, the Board of Directors acted
in a highly unusual fashion to declare an “emergency” and to adopt the report as “APA policy,”
an act normally reserved for the APA Council of Representatives. The Board was not required
to take any quick action with regard to the task force. Behnke had arranged for expedited
approval by the Ethics Committee, and if there was a desire to formally adopt the report as APA
policy, the Council of Representatives was meeting about six weeks later. But the evidence
shows that the Board acted in this unusual fashion motivated principally by the desire of APA
Board members Ron Levant (APA President) and Gerry Koocher (APA President-Elect) to (1)
create a PR message that would be perceived as backed not just by a public statement but by
actual substance (a new APA ethics policy) and that could be used in a fluid PR situation
perceived as negative, and (2) curry favor with DoD which had communicated that it wanted a
prompt release of the report so it could use the report for its own purposes (which were both PR
and policy purposes). 15
15

In addition to the intensive press coverage on issues of potential abuse of detainees during this time, the
Commander of the Joint Task Force – Guantanamo was testifying before the House Armed Services
Committee during the week of June 27 on the issue of detention conditions at Guantanamo. Reports of
the hearing make it clear that the Pentagon was attempting to provide positive answers in response to
concerns about abuse and improper conditions at Guantanamo. See Reuters, Democrats See
“Whitewash” of Guantanamo Problems, June 29, 2005. A report from a third party (APA) saying that
psychologists could ethically be involved in interrogations at Guantanamo had the great potential to be a
positive story for DoD, from its perspective, and the emails show that DoD was thrilled with the content
of the PENS report. Aside from the PR issues, the Army Surgeon General’s Office was in the midst of
developing its policy for the involvement of psychologists and psychiatrists in interrogations, based on
Banks and Dunivin’s draft policy document, and this closely-aligned, highly supportive report from APA
was of great assistance to that effort, as the emails between Banks, Dunivin and Behnke show. This is
discussed in greater detail in the detailed PENS section below.

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The New York Times had run an article on Friday, June 24, the first day of the task force
meeting, reporting that “[m]ilitary doctors at Guantanamo have aided interrogators in conducting
and refining coercive interrogations of detainees, including providing advice about how to
increase stress levels and exploit fears.” The article quoted both Behnke and the ethics
committee chairman of the American Psychiatric Association and compared the positions of the
two organizations: “While the American Psychiatric Association has guidelines that specifically
prohibit the kinds of behaviors described by the former interrogators for their members who are
medical doctors, the rules for psychologists are less clear. . . . [I]n a statement issued in
December, the American Psychological Association said the issue of involvement of its members
in ‘national security endeavors’ was new.” 16 APA President Levant worried that the article
made APA look bad because it “portrayed APA as unsure of where the ethical boundaries lie.” 17
To Levant and Koocher, managing APA’s image required it to show that the task force report
was more than simply a set of high-level, “loose” statements that might be justified as a tentative
“initial step,” but was instead a clear and “strict” statement of the actual ethical boundaries. The
fact that the PENS report was nothing of the sort did not stand in the way of their strategic
attempt to create the best possible media response.
By the last day of the task force meeting, Behnke had received information that an indepth article by Jane Mayer on the policy and practice of aggressive interrogation techniques
would be published in the New Yorker as soon as Tuesday, July 5, 18 and advised Board members
Koocher and Anton (along with Anderson, Farberman and Gilfoyle) of this. In response,
Farberman said that if the PENS report was “fully approved” by that date, “we have very strong
talking points. Without it we’re not in as strong a position.” 19
In addition, Behnke was communicating to Levant, Koocher, Anton, and APA
management that DoD was very eager to get a copy of the PENS report, especially with The New
Yorker article due to come out. Banks wrote Behnke to express appreciation for APA
“support[ing]” DoD in the report: “I just finished with the [Army] Surgeon General and he will
be in front of the Senate soon, on this issue. (He is very supportive.) Having APA’s support will
mean a lot.”
And on the afternoon of Thursday, June 30, Science Directorate staff Heather Kelly
informed Behnke, Farberman and others that Secretary of Defense Rumsfeld was personally
waiting to receive the report on an expedited basis:
16

Neil Lewis, Interrogators Cite Doctors’ Aid at Guantanamo, The New York Times (June 24, 2005),
available at
http://query.nytimes.com/gst/fullpage.html?res=9400E2DA1F3BF937A15755C0A9639C8B63.
17

APA_0040505.

18

Behnke’s handwritten notes from on or around the last day of the PENS task force meeting, June 26,
show that he received a briefing on the article from someone (presumably from Banks or Gelles, who
both had been interviewed by Mayer). His brief notes say “Mitchell” and “Jim Mitchell” and the word
“SERE”, among other things. HC00010682.

19

APA_0040518.

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Rumsfeld’s exec assistant will apparently be waiting by the fax for this! His
super secret direct access fax line. They’re just a tad interested. 20
That same afternoon, the Board was sent the PENS report along with a note that President
Ron Levant was working on a proposal to the Board. There was one significant Board comment
in response: Board member Diane Halpern (APA President in 2004) had “one very strong
recommendation – that somewhere we add data showing that torture is ineffective in obtaining
good information.” This prompted an internal staff email exchange in which Gilfoyle asked
whether it was true that “torture has been demonstrated to be ineffective.” Behnke’s response
showed once again that his primary goal was to stay completely aligned with DoD: “the Task
Force did not make such a clear, blanket, statement, and my sense is that the Task Force may not
have felt entirely comfortable doing so.” In other words, because at least some of the DoD
members were not ready to agree that torture was effective, Behnke wanted to block this Board
member’s suggestion. (For instance, Lefever’s view from his experience with SERE was that
waterboarding was often effective at getting U.S. soldiers in the program to reveal accurate
information that was supposed to be secret.) Farberman agreed: “Hopefully, Diane’s suggestion
is dead in the water.” 21
In this context of vigorous media coverage and intense demand from DoD, President Ron
Levant suggested to the APA Board not just that it declare an emergency and act in an expedited
manner regarding the report, but that it take action to actually “adopt the task force report as
policy.” In an email to the Board early in the morning of Friday, July 1, Levant asked for the
views of the Board about “declaring an emergency to adopt” the report, “the emergency being
that APA and psychology are getting pretty well trashed in the media, damaging our public
image.”
Barry Anton had received the draft resolution that contemplated the Board “adopting the
report as policy,” and emailed Behnke with a “concern”: “I’m not sure it can go out as policy
without [Council of Representatives] approval. The [Board] can certainly accept the report.” It
is likely that the plan to declare an “emergency” was in response to Anton’s concern that the
Board could not normally adopt something as APA policy, since this was the Council’s function.
By Friday, July 1, without an in–person or phone meeting or discussion, but simply some
short emails, all the Board members who responded to Levant’s question had voted in favor of
declaring an emergency and adopting the report as APA policy.
Some of the most long-serving Board members and APA management members
confirmed to us that it was highly unusual for the Board to declare an emergency. One long-time
executive said this was the only declaration of an emergency they could recall other than a time
when the Board needed to taking a refinancing action swiftly in order to avoid an interest rate
hike. Long-serving Board member Koocher agreed that other than emergency actions relating to
financial situations requiring immediate action (such as the refinancing situation), or one
20

APA_0040495.

21

APA_0040500; APA_0051185.

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situation many years earlier when immediate action was required to avoid a negative government
regulatory action, he did not believe the Board had ever declared an emergency in order to take a
specific action.
In looking back on this Board action, it was brought to our attention that under the
Washington DC law applicable to not-for-profit corporations like APA, Board votes taken
outside of an in-person meeting require a unanimous, written vote from all Board members by
sending in signed proxy statements. Not only are there no such signed proxy statements, but
APA has no records of all Board members voting by email. Our search of APA’s emails
uncovered votes from 11 of the 12 Board members, but we did not find a vote or email response
from Board member Jessica Henderson Daniel, who did not remember voting on this. Thus, it
may be that the Board action adopting the PENS report as APA policy in 2005 was not a valid
action of the Board on procedural grounds.
11.

Quick transformation of PENS into strict human rights document through
misleading public statements as PR strategy

When APA made the PENS report public on July 5, 2005, it issued a statement
emphasizing that psychologists could in fact serve in consultative roles to national security
interrogations consistent with the Ethics Code, exactly the message that was pleasing to DoD.
However, the criticism was immediate, including a negative story in the New York Times on July
6. The article pointed out the lack of specificity in the report and said it appeared “to avoid
explicit answers” on key topics.
The day before this, Banks and Behnke had anticipated that APA would get asked about
the “real issue,” as Banks said, which they defined as: “What is the level of psychological
distress that moves it into abuse?” This was an issue PENS had intentionally avoided, as
described above. Behnke told Behnke he would think about “how to package” the best response
to this issue.
The day of the Times story, Behnke drafted a response letter to the editor for Levant,
which was published in the Times over Levant’s name on July 7. In the letter, Levant claimed
that the PENS report contained “strict ethical guidelines” and then repeated some of the
statements in the PENS report. From this point on, the media strategy was clear: emphasize that
PENS said that psychologists could not engage in torture or cruel, inhuman or degrading
treatment and claim PENS as a strong, pro-human-rights document. The principal purpose of
PENS – to state that psychologists could in fact engage in interrogations consistent with the
Ethics Code – was relegated to the sidelines, since any message seen as pro-DoD or permissive
regarding the involvement of psychologists in interrogations was deemed bad media strategy in
light of the intense and quick criticism of PENS. And of course, the principal motivation for
Behnke and other APA officials in drafting PENS the way they did – pleasing DoD – remained
fully concealed.
These were misleading public statements and this was a disingenuous media strategy. A
document that was intentionally very limited, non-specific, and evasive on the key issue in order
to, principally, please DoD, now came to be described principally as a strong anti-torture and
pro-human-rights document.

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B.

EXECUTIVE SUMMARY

Conclusions Regarding Secret Joint Venture Between APA and DoD Officials
In Years After PENS

From the time of the PENS Task Force through at least the next three years, and through
the end of the Bush Administration, Behnke led the extensive efforts by APA to defend the
PENS report, to beat back criticisms on the issue through public statements and interviews, and
to defeat efforts by the APA Council of Representatives to pass resolutions that would have
definitively prohibited psychologists from participating in interrogations at Guantanamo Bay and
other U.S. detention centers abroad.
In these efforts, Behnke effectively formed an undisclosed joint venture with Banks –
sometimes joined by Dunivin and some of the DoD officials who had served on the PENS Task
Force – to ensure that APA’s statements and actions fell squarely in line with DoD’s goals and
preferences. In numerous confidential email exchanges and conversations, Behnke regularly
collaborated and coordinated with Banks to determine what APA’s position should be, what its
public statements should say, and what strategy to pursue on this issue. Before responding to an
APA Board member, before drafting a statement for the APA President, before giving a news
interview, before advising the APA Ethics Committee, and before crafting strategy regarding
potential Council resolutions, Behnke very regularly checked with Banks first to make sure
Behnke and APA were in line with what DoD wanted, as articulated by Banks. On many of
these occasions, Behnke was effectively seeking, and received, Banks’ pre-clearance for an APA
action or statement before Behnke proceeded.
1.

APA/DoD close and secret collaboration on public statements and media
strategy

Virtually every time the issue of psychologists’ involvement in interrogations arose
publicly in an important way – when a national reporter would ask Behnke for a comment or
interview for an article being prepared; when Behnke would be preparing for an interview on
NPR; when Behnke was preparing a draft letter from the APA President or other APA officials
to be published or sent to an APA listserv for the Council of Representatives or other groups; to
cite some examples—Behnke reached out to Banks to ensure that APA’s statements and
positions were in line with the military’s policies and preferences and to coordinate what APA
should say and how it should proceed strategically. Behnke was, in effect, the lead strategist and
spokesperson for APA on this issue and worked hard to stay in control of every word that APA
officials uttered on the issue. Our review of the contemporaneous documents and
communications makes it clear that his closest partner and collaborator in this endeavor was
Banks, joined at times by other DoD officials such as Dunivin, James, and Shumate. Often there
was a predictable pattern to Behnke’s activity: upon observing that APA would need to make a
statement or issue a response, he would email Banks within a very short amount of time to seek
his guidance or to suggest that APA take a particular an approach or use specific language, and
then would ask if Banks approved of, or wanted to change, the approach or language.
Behnke shared with Banks and Dunivin that APA’s “media strategy” was to claim that
APA’s ethics position on psychologists’ involvement in interrogations was very similar to the
position of the American Psychiatric Association and the American Medical Association. And
Behnke turned to the two of them, and Banks in particular, for assistance in crafting strategic

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messages and specific language that would help advance this strategy. We saw numerous
examples of Behnke partnering with Banks as a virtual joint communications strategy team for
APA.
Banks, too, used Behnke to help determine what DoD officials should say on the issue of
psychologists being involved in interrogations. In one instance, the Commander of the DoD
Joint Task Force at Guantanamo asked Banks to draft a statement on the issue, and Banks turned
to Behnke for drafting help.
In another instance, Behnke worked behind the scenes with Banks to help DoD lobby the
APA President on this issue, by helping Banks write a strong letter to the APA President after the
President received a strong letter from APA members concerned about reports of psychologists
being involved in abusive interrogations. In effect, the APA Ethics Director was secretly
drafting a letter from DoD to the APA President to help DoD influence the APA President’s
position on an issue.
Behnke and Banks worked to keep their collaboration highly confidential. In an email to
Banks during one of the many instances in which Behnke sought his review and pre-clearance of
a draft APA statement, Behnke told Banks that “discretion about prior review is essential.” They
titled numerous emails “Eyes Only”, and we found two emails in 2007 (shortly before their email
traffic diminished, based on the emails in APA’s system) in which they discussed ensuring that
the emails themselves were securely deleted.
Other APA officials were sometimes involved in these collaborations, such as Koocher,
Levant, Farberman, and Kelly. But for the most part, the email evidence of the collaboration
with Banks and other DoD officials shows Behnke as the clear leader of this effort.
Banks, Dunivin, and other DoD officials thanked Behnke profusely, called him a hero
and their “knight in shining armor,” and shored him up when he took criticism. They invited
him in 2005 to speak at the previously closed-off small annual conference for national security
psychologists with security clearances, and to provide paid 22 instruction at the confidential
military interrogation-and-detention-operations two-week training course newly created in 2006
to train psychologists and psychiatrists in interrogation support, as described below.
2.

Behnke as DoD contractor providing training as part of BSCT
psychologist interrogation training program

Behnke became a DoD contractor and, from 2006 to the present, has taught ethics to
BSCT psychologists (and occasionally psychiatrists) “in support of interrogation/detention
operations” at Fort Huachuca in Arizona, the DoD base that houses the U.S. Army Intelligence
Center. Banks and Dunivin coordinated with him about what he should tell and not tell the APA
22

The evidence (on file with Sidley) appears to show that the payments, ranging from $1,250 to $5,000
per class, were made to APA, not Behnke, except for two instances when Behnke said he received the
payments directly and wrote APA a check for the payment amount less his expenses, although there is
some contracy evidence as DoD had Behnke’s bank account information, presumably for direct deposits.
Our investigation was still receiving evidence from APA on this issue at the time of our report.

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Board about these activities, wanting to conceal some aspects of the tight partnership they had
created in light of the criticism within the APA community on this issue.
In fact, Behnke never informed the Board of his participation in the DoD interrogation
training program for BSCT psychologists, his status as a DoD contractor, or the payments from
DoD to APA. He did, however, tell his supervisor, APA Deputy CEO Michael Honaker, that he
turned to Banks as an advisor from time to time, and that he was regularly giving a paid ethics
lecture at an Army base as part of the interrogation training course for BSCT psychologists.
Honaker did not provide this information to CEO Norman Anderson or the Board. When
Anderson learned from Sidley during the investigation that Behnke had been providing this
training as a DoD contractor, he appeared stunned and was visibly upset that the matter had not
been discussed with the Board. Honaker said that it did not occur to him that the Board would
need to know or discuss this information, because he saw it as a standard example of Behnke
providing ethics training to an important group of psychologists, as he does in a variety of
settings.
Honaker and Behnke claimed that the trainings were clearly revealed in the Ethics
Office’s publicly-available annual reports. But in 2006 and 2007, the reports only listed the
trainings as “workshops” in Sierra Vista, Arizona relating to the PENS report, and beginning in
2008, they began being described as “workshops on ethics training for military psychologists.”
The reports do not state that the “workshops” were at a DoD facility or the U.S. Army
Intelligence Center or were part of the military’s official interrogation training program for
BSCT psychologists. Emails between Behnke and Dunivin show that this was by design;
Behnke proposed to Dunivin that he describe the trainings in his “yearly report to the Board”
with “something simple” like “training on ethics and interrogations” and “Sierra Vista, Arizona.”
Dunivin agreed that he should “leave it Sierra Vista and simple.” And in Behnke’s annual
reports in 2006 and 2007, he even removed the word “interrogations.”
3.

Actual and attempted trips to Guantanamo

In late 2006 and early 2007, when a BSCT psychologist at Guantanamo Bay reached out
to Behnke and Banks to seek a confidential in-person ethics consultation at Guantanamo from
Behnke about an ethics issue, it became apparent to Behnke that the APA Board might not
support such a trip in light of the controversy within the APA ignited by PENS. Confidentially
plotting with Banks about how to get the APA Board to agree to let Behnke travel to
Guantanamo, Behnke ended up asking the BSCT psychologist to write a formal memo
requesting his in–person consultation for a confidential ethics consultation. The psychologist did
so and prepared a formal travel plan as well. However, at a meeting with the Board, Behnke was
told that he could not travel to Guantanamo, but could provide the requested ethics consultation
in the United States. Behnke therefore offered instead to consult with the BSCT psychologist in
Washington if an in-person consultation was required. The Board’s decision triggered a strongly
worded email to three Board members from Dunivin (who had apparently heard that Behnke’s
inability to travel was due to a Board decision), accusing them of being not interested in
providing assistance to military psychologists and questioning their ability to make sound
decisions to support military psychologists in light of the PENS report. When Banks inquired
whether this had been “destructive on” Behnke,” Behnke assured Banks that “[n]othing could

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diminish . . .my commitment to continue to support all of your efforts, and the efforts of the great
men and women who protect our country and our freedoms.”
There had been two trips to Guantanamo by APA Presidents after the PENS report,
accompanied by Behnke on one of them. In October 2005, DoD invited APA President Ron
Levant as well as the President of the American Psychiatric Association and others to a half-day
visit at Guantanamo, as later reported in the press. And in November 2006, APA President
Gerald Koocher and Behnke went on a similar trip to Guantanamo. For the Levant trip, Behnke
arranged for Banks and Dunivin to provide a phone briefing and talking points to Levant so that
he would be “on message” during and after his trip. Behnke similarly had Banks brief Koocher
before his 2006 trip. Both trips consisted of meetings with Guantanamo leaders who provided
positive information about the facility and detainee treatment. The trips were mostly PR trips for
DoD, but after the 2005 trip, Assistant Secretary of Defense Winkenwerder and Surgeon General
Kiley had a dinner with the group to discuss their observations and any concerns. Koocher told
us that he found the opportunity to see the actual Guantanamo facility and receive in-person
briefings helpful. Upon his return, Koocher prepared an extensive power point presentation with
many photos provided to him by DoD showing the detention center and detainee facilities. The
presentation was very positive about the Guantanamo facility and its value, including a slide that
highlighted the “interrogation yield.” Koocher said that the slides simply represented what DoD
had told the group, and that he would orally provide this caveat when he gave the presentation.
But on its face, the presentation is an uncritical, highly positive presentation of Guantanamo.
4.

Policy victory

One of the key benefits that APA sought from its close collaboration with DoD was a
positive outcome regarding the official policy DoD was developing on the issue of interrogations
and the involvement of psychologists, psychiatrists, and other “behavioral science consultants.”
And APA received exactly what it wished for, as DoD official doctrine and Medical Command
policy explicitly provided a large role for psychologists (and not as much for psychiatrists) in the
support of interrogation and detention operations – an outcome that clearly was due in substantial
part to what was seen by DoD as the very “supportive” position taken by APA in the PENS
report.
Spurred largely by the draft policy document that Morgan Banks (along with other SERE
psychologists in Army Special Operations Command and Debra Dunivin) drafted in and around
2004 to provide guidance and instructions to BSCT psychologists regarding interrogations and
detention operations, the Army Surgeon General’s Office started a formal effort in late 2004 and
early 2005 to draft an official Medical Command policy which would apply to all behavioral
science consultant involved in interrogations. As the Executive Agent for the administration of
DoD detainee policy, the Army Surgeon General’s Office’s policy would cover the entire
Medical Command. The draft document that Banks had drafted by the first half of 2005 (and
which he distributed at the PENS meeting) became the official Medical Command policy (almost
verbatim in all key respects) in October 2006.
APA had learned of this policy development effort in early January 2005 as it was
starting to put together the PENS Task Force, and it was clearly one of the lead motivating
factors for APA in selecting task force members and producing a task force report that would

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please DoD. In effect, APA assured that its ethics policy would be completely aligned with
DoD’s policy by (i) taking the key framework in Banks’ draft policy document (“safe, legal,
ethical, and effective”) and using it as the key framework in the PENS report, and (ii) following
Banks’s lead in all other important policy respects in the PENS report. Banks’s draft policy
document thus became the basis for both the PENS report and official DoD policy, making it a
foregone conclusion that APA and DoD policy were perfectly aligned. In fact, the most recent
version of this DoD policy (2013) still contains the full PENS report as a formal part of its policy
document.
While the Surgeon General’s Office was finalizing its Medical Command policy, based
on Banks’s document, and getting approval from various parts of DoD, higher-level DoD
doctrine documents were required before the Medical Command policy could be issued. The
highest-level of these doctrine documents was a “DoD Directive,” (or “DoDD”). In November
2005, the Acting Secretary of Defense issued a DoDD on “Intelligence Interrogations, DoD
Debriefings, and Tactical Questioning.” The eight-page document contained an explicit mention
of “behavioral science consultants” assisting interrogations, an inclusion that was seen as a huge
victory for SERE and other military psychologists. Right after it was issued, a SERE
psychologist with the DoD Joint Personnel Recovery Agency sent a congratulatory note to the
team that had helped make this a success – Behnke, Banks, and two Air Force SERE
psychologists: “Thanks to all for your hard work, we are now in an official DoDD.”
The next step in DoD doctrine was a “DoD Instruction” on the topic (“DoDI”). In June
2006, the Assistant Secretary of Defense for Health Affairs, William Winkenwerder, issued a
DoDI that explicitly prioritized psychologists over psychiatrists in the role of “behavioral science
consultants” who supported interrogations and related activities. The document provided that
“physicians [i.e., psychiatrists] are not ordinarily assigned duties as [behavior science
consultants], but may be so assigned, with the approval of the [Assistant Secretary of Defense],
in circumstances when qualified psychologists are unable or unavailable to meet critical mission
needs.” And in comments to the media about the new DoDI, Winkenwerder explicitly mentioned
that the “clear support” from the APA regarding the role of psychologists in interrogations (a
reference to PENS) “influence[d] our thinking” because, he noted, the American Psychiatric
Association had not taken a similarly supportive position.
This was a very large victory for those who were focused on growing opportunities for
employment and influence for psychologists, especially compared to psychiatrists. By winning
the primary position with DoD regarding which mental health professionals would provide
support for DoD interrogations, APA cemented its position with DoD in a manner that is likely
to produce substantial employment and other financially-beneficial opportunities for psychology.
5.

Abandonment of PENS “casebook” plan

One of the key arguments made by Behnke toward the end of the PENS meeting, and for
years later, was that the lack of specificity in the PENS report was necessitated by the
complexity of the topic and the fact that PENS was just an “initial step” in the process. The next
step – crucial, he said, in the development of meaningful guidance to psychologists – would be a
“casebook commentary” that would be produced by APA with input from the PENS Task Force
and the Ethics Committee. The book would provide examples and the kind of clear, specific

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guidance psychologists sought, he said. Several of the DoD psychologists on the task force were
highly dubious that this was feasible or desirable, including Scott Shumate, who made his views
on this plain. Nevertheless, Behnke promised Mike Wessells that the casebook would be done in
six months, a promise that was crucial for Wessells in signing off on the task force report.
Ultimately, Behnke did virtually nothing to pursue a casebook for years, effectively
abandoning an essential element of his (disingenuous) claim that APA’s development of ethical
guidance on the issue would be a multi-step process. Behnke made the argument to us during his
interviews that because the Council of Representatives began passing resolutions in 2006 that
provided more specific guidance for psychologists, he believed a casebook was unnecessary.
We do not think this is true, since as set out below, Behnke was the lead APA strategist in
attempting to manipulate and water down Council resolutions to minimize the effect on DoD.
The real reason there was no casebook is that there was never a real desire to create one, because
it would necessarily create the same problems that specificity within the PENS report would
have had (as APA staff had identified as early as December 2004) – drawing a line that allowed
psychologists substantial latitude in supporting interrogations, as DoD desired, created
substantial PR problems. The only solution to this dilemma was to keep the guidance nonspecific.
That this was actually Behnke’s thinking is corroborated by the internal emails he sent in
January 2011, when he finally created a 30-page draft document on this topic that was something
well short of a book. The document contained “vignettes” and Ethics Committee responses. In
sending the draft document to Anderson, Honaker, Gilfoyle, Farberman, and two others, he
explained that “[o]ur primary focus was to write responses that would not cause us any
problems.” He expressed satisfaction that there had been almost no discussion of “this piece of
the interrogation issue for some time,” and said that his plan was “to post this text, quietly, very
quietly on the Ethics webpage.” Thus, six years after PENS, the great promise of a casebook as
the proper means of providing specificity and resolving the unavoidably (said Behnke) limited
nature of the PENS report had shrunk to the form of a 30-page document, intentionally created to
avoid any “problems,” which was snuck into a corner of the APA website with the fervent hope
that it would be entirely ignored.
6.

Obstruction on amending Ethics Code Standard 1.02

At the Council meeting in August 2005 following the PENS report, the Council passed a
motion instructing the Ethics Committee to explore adding language to Ethical Standard 1.02 to
ensure that that provision could only be used in a manner “consistent with basic principles of
human rights.” That provision (as revised in 2002) provided if there was a conflict between a
psychologist’s ethical obligations and her obligations under the “law, regulations, or other
governing legal authority” (which included military orders), she had to try to resolve the conflict,
but if she could not, she could follow the “law, regulations, or other governing legal authority”
without committing an ethical violation. The Introduction to the APA Ethics Code (which was
not binding) repeated this language of 1.02 and added the phrase, “consistent with basic
principles of human rights.” Council’s motion required the Ethics Committee to make a
recommendation about whether to revise 1.02 by adding the language in the Introduction.

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Behnke drafted a document for the Ethics Committee in September 2005, which the
Committee adopted, rejecting the suggestion that 1.02 be amended in this way. For the next four
years, Behnke engaged in a wide variety of actions to intentionally delay and obstruct efforts to
amend 1.02, despite increasingly clear calls to do so. Standard 1.02 was clearly a provision that
was of importance to national security psychologists. Behnke coordinated his efforts at times
with Banks and Dunivin by, for instance, having them help create “opposition” to the calls to
revise 1.02.
Ultimately, it was not until Council explicitly instructed the Ethics Committee to take
action resolving the discrepancy between Standard 1.02 and the language in the Introduction of
the Ethics Code, and set a February 2010 deadline, that anything changed. As a result of
Council’s insistence, Standard 1.02 was amended in February 2010 to include the requirement
that the provision not be used “to justify or defend violating human rights.”
7.

Behind-the-scenes attempts to manipulate Council of Representatives
actions in collusion with, and to remain aligned with DoD

Finally, one of the most significant ways in which Behnke and APA secretly collaborated
with DoD officials was in Behnke’s extensive efforts to manipulate Council of Representatives
actions from 2006 to 2009, in an effort to undermine attempts to keep psychologists from being
involved in national security interrogations and to minimize the damage to DoD psychologists
who might have been threatened from more aggressive potential Council actions. Especially in
2006 and 2007, but also to some extent in 2008 and February 2009, Behnke became APA’s chief
legislative strategist, taking a very active and sophisticated role in manipulating the resolution
process and the proponents of these measures in order to achieve this goal.
Behnke was the authorized APA leader in this effort, and he was obviously taking these
steps on behalf of APA. There were other APA officials involved with Behnke in these efforts,
including at times Koocher, Anderson, Honaker, Farberman, Gilfoyle, and (in 2008-09) Ellen
Garrison. Their involvement is discussed in the detailed section of the report. But no one was as
thoroughly and consistently involved as Behnke was, and he was clearly (as one of the DoD
officials said to him after he revealed some of his plans) “a superb strategist” – a compliment to
which he responded with an email wink emoticon.
The pattern we saw from the evidence was that Behnke would use a sophisticated mix of
strategies to either delay the passage of resolutions that would create negative implications for
DoD or manage them so that the negative implications would be minimized. First, he would
attempt to bring the proponents of aggressive resolutions into his fold by “working with them”
on their resolutions, a gesture with the appearance of support that was almost always taken at
face value and accepted by the proponents. Once he began “working with them,” Behnke would
act like a partner and teammate to encourage the view that he could help them achieve a good
outcome. Second, Behnke would then use his very substantial language skills to wordsmith the
draft resolutions in order to excise the parts that were negative for DoD and to substitute
alternative language that appeared to achieve some of the proponents’ original goals, but often
achieved less than they thought because of nuanced drafting moves. Third, Behnke would
attempt to convince the proponents that they should bring in the division of APA that represented
military psychologists on the theory that the proponents should not want to be “divisive” within

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APA, and that it was best to form a “consensus.” Fourth, Behnke would engage in active and
sophisticated behind-the-scenes lobbying in both direct and indirect ways in order to ensure
passage of the more moderate alternative he had crafted and to avoid a revolt in the direction of
more aggressive measures. This even extended to his micro-managing when invitations for
lunch with the APA President were issued (to nip “organizing” in the bud) and where the invitees
would sit for lunch during the Council meeting (to increase “visibility”).
In essence, Behnke’s insight was that when faced with the potential for an aggressive
Council action that he viewed as negative for DoD, the best strategy was not to oppose it directly
but to create an alternative that could be seen as a middle ground with enough credibility to
attract support from a substantial percentage of the people who would have otherwise supported
the aggressive action. And through the mechanisms set out above, he was confident he could
manipulate the “middle ground” alternative to make it positive or tolerable for DoD.
Behnke engaged in his usual highly confidential communications with Banks (as well as
Dunivin and James, and sometimes Gelles) in order to jointly determine what strategy or position
was best for DoD, to seek pre-clearance of specific language, and to work on drafts of key
documents together.
The Council did in fact pass resolutions in 2006 and (especially) 2007 that created
additional restrictions on national security psychologists as a matter of “APA policy” (although
these were not enforceable ethical standards), but they were much milder as a result of Behnke’s
intense behind-the-scenes manipulation, done in close coordination with DoD officials such as
Banks. While these two resolutions were being drafted and prepared for Council’s
consideration, Behnke engaged in a two-pronged approach: (1) engage with and defer to Banks
in crafting language that would not create any problems for DoD, and (2) actively gather
opposition against the membership-generated resolutions by direct communications with those
he knew would be against the resolution and by ghost-writing opposition letters from prominent
DoD individuals such as Michael Gelles and Larry James.
In 2008, in a highly atypical action, a membership “petition resolution” received
sufficient support to result in a vote of APA membership on the petition. The petition provided
that “psychologists may not work in settings where persons are held . . . in violation of either
International Law (e.g., the UN Convention Against Torture and the Geneva conventions) or the
US Constitution.” The petition passed. After this, APA formed an “advisory committee” to
make recommendations to the Council on how to implement the petition. The advisory
committee’s report, presented to Council during the February 2009 Council meeting, was
considered a highly negative action by Banks.
Banks sent a long email – largely drafted by Behnke – to a very large group of DoD and
national security psychologists calling on them to oppose the advisory group’s report. James
was designated as the Council point person and he promptly met with Behnke to “develop a
battle plan of attack” (in James’s words). After the Council meeting, James reported back to the
DoD group that victory had been achieved and the resolution would have no practical effect,
because the word “unlawful” had been inserted in the title of the resolution, and DoD had just
issued an official report (following a request from President Obama) that Guantanamo complied

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with the Geneva Conventions. Thus, DoD had no such “unlawful” facilities. In his interview
with us, James said with some pride that the “other side” simply hadn’t done its homework.
C.

Conclusions Regarding APA’s and Psychology’s Ties with the CIA, 2001 - 2004
1.

Overview

From 2001 through 2004, there was a great deal of interaction on issues related to
interrogations between key CIA psychologists and both APA staff and prominent psychologists,
who were considered elder statesmen in psychology or were former or current APA Presidents.
These interactions were occurring precisely during the time that the CIA was using “enhanced
interrogation techniques”—including waterboarding—in vigorous fashion against certain
detainees, and had given a key role in the development and implementation of the enhanced
interrogation techniques to contract psychologists Jim Mitchell and Bruce Jessen. These
interactions clearly raise the question whether APA was providing direct and important support
to the CIA’s interrogation program and the enhanced interrogation techniques.
One of the CIA psychologists who brought Mitchell and Jessen into the CIA and with
whom they worked closely was Kirk Hubbard. Hubbard headed the Research and Analysis
Branch of the CIA’s Operational Assessment Division, a unit primarily focused on psychological
assessment of spies and potential spies, and he does not appear to have been directly involved in
CIA interrogations. During this time, Hubbard worked closely with two APA staffers—Geoff
Mumford and Susan Brandon (who later moved to the White House Office of Science and
Technology Policy)—and a CIA contractor who worked for the RAND Corporation, Scott
Gerwehr, to put on confidential conferences at which academics in behavioral science could
meet with national security psychologists from the CIA, DoD, and the FBI on subjects like
“detecting deception.” This was a vitally important concept to Mitchell and Jessen in
implementing their apparent theory that harsh interrogation techniques can actually yield
accurate information if the interrogators are able to determine when the interrogation subject is
lying.
Also during this time, Hubbard created a “Professional Standards Advisory Committee”
(“PSAC”) consisting of three leading outside psychologists—former APA Presidents Ron Fox
and Joe Matarazzo, and former APA Division 30 (Hypnosis) President and security-cleared CIA
contractor Mel Gravitz. Mitchell and Brandon also attended at least one of the PSAC meetings,
at which the focus was psychological assessment issues. Yet Matarazzo and Gravitz were also
used by Hubbard and others at the CIA as consultants on a limited number of important issues to
the interrogation program—for example, Matarazzo was asked to provide an opinion about
whether sleep deprivation constituted torture. And following a controversy within the CIA about
whether Mitchell could continue to participate in interrogations, Gravitz was asked to provide a
written analysis to define the ethical boundaries for psychologists participating in interrogations.
In addition, Hubbard, Mitchell and other CIA psychologists met with former APA President
Martin Seligman at his home to fully understand the psychological theory of “learned
helplessness,” a theory that Mitchell and others at the CIA were clearly incorporating into the
CIA interrogation program. Seligman and Matarazzo also spoke at the SERE training academies
where Mitchell and Jessen had been instructors, with Seligman doing so at Hubbard and
Mitchell’s request.

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It was also clear during this time that APA staff, principally Mumford, were keenly
interested in establishing strong and lasting relationships with the CIA, and were intent on trying
to please Hubbard and the CIA. In one 2004 email from Mumford to Hubbard in response to
Hubbard’s request that Mumford not disclose Mitchell and Jessen’s affiliation with the CIA,
Mumford emphasized that “[we] don’t want to (and won’t) do anything to jeopardize our
harmonious working relationship.”
Despite these extensive interactions and APA’s clear desire to please the CIA, it appears
that the actual actions that APA took during this period that may have assisted the CIA in its
interrogation program were limited to putting on a small number of conferences with the CIA for
academics and key national security psychologists (including Hubbard, Mitchell, and Jessen). It
may be that the discussions at these conferences were of great value to CIA psychologists like
Mitchell and Jessen, who were alternating between (a) interrogating and waterboarding detainees
in secret CIA sites abroad and (b) having meetings and conferences in the U.S. on topics that
might assist them in attempting to extract information through torture and other abusive
interrogation techniques. But we did not find evidence that current APA officials like Mumford
and Brandon were read into or were aware in any significant way of the CIA’s interrogation
program, which was classified, or had any meaningful knowledge of what Mitchell, Jessen, or
other CIA personnel involved in interrogations were doing.
There were certainly important snippets of information in front of Mumford and Brandon
that would have caused a reasonable person to suspect that Mitchell, Jessen, and other at the CIA
might be engaging in abusive interrogation techniques, including detailed media reports about
interrogation abuses at CIA “black sites”; the public disclosure of the Justice Department memos
that narrowly defined “torture” and explicitly applied to CIA interrogations; particular interest by
Mitchell at the “detecting deception” conference in the empirical evidence on the topic; and a
2003 email from Hubbard to Mumford and Brandon that Mitchell and Jessen are “doing special
things to special people in special places, and generally are not available.”
But we did not find evidence that went beyond these points, and found Mumford’s and
Brandon’s denials that they knew about the CIA’s interrogation program to be credible. CIA
contract psychiatrist Andy Morgan told us that he saw no indication that APA officials were read
into or received any information about the interrogation program or the interrogation activities of
Mitchell, Jessen, or others. We consider Morgan a credible source of information based on his
close working relationship with Hubbard and others at the CIA at the time, his knowledge of the
CIA’s bureaucracy and how it generally communicated internally about the interrogation
program, and his opposition to the “enhanced interrogation techniques” portions of the CIA’s
interrogation program.
On the other hand, as with APA officials who intentionally avoided seeking more
information in the face of substantial indications of psychologist involvement in abuses at
Guantanamo, as described above, Mumford and Brandon took no steps to inquire about the clear
concerns these pieces of information would have raised if their focus had been a concern about
the involvement of psychologists in abusive conduct toward detainees. But this was not their
focus. Instead, their focus was on building good relationships with the CIA and other
government agencies, and successfully acting as conduits between national security

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psychologists at the CIA (and elsewhere) and the academic psychology community that had
potentially helpful expertise and research.
APA did not have the same close and longstanding relationship with the CIA as it did
with DoD, and the potential financial advantages for psychology from a close relationship with
the CIA would likely have appeared smaller than with DoD. But for APA Science Directorate
and its staff, having a partnership with the CIA was of great benefit. The CIA paid tens of
thousands of dollars for the expense of setting up conferences and reimbursing participants for
their travel expenses, and these conferences allowed APA to showcase its relevance, visibility,
and leadership on subjects of interest to psychology. Building that relationship held the promise
for more CIA-funded conferences and other joint projects in the future that might similarly
highlight (or suggest) APA’s leadership and influence.
Although some of the details of APA’s interactions with the CIA were kept secret (such
as the identities of some of the people who attended the conferences), the APA Science
Directorate disclosed its partnership with the CIA fairly openly in its publications to APA
membership, and described the title and purpose of the conferences. The APA staff created very
detailed summaries of the conferences, including the list of participants and details about who
said what, and circulated them broadly to all the academics and others who attended the
conferences. Thus, unlike what we saw with the APA-DoD interactions in the context of the
PENS Task Force and subsequent actions, we did not see here anything close to the level of
concealment, behind-the-scenes plotting, or close coordination about APA actions—other than as
to the planning of the conferences. The conferences were not open to the public, but a large
variety of academics and government officials from outside the CIA (including the FBI) attended
the conferences and received the summaries, so we did not conclude that there was any
meaningful effort to keep the existence or much of the content of the conferences secret.
As to the actions and knowledge of the former APA officials listed above (Fox, Gravitz,
Matarazzo, and Seligman), some of them were clearly brought closer to the circle of knowledge
through important interactions with Hubbard and Mitchell, as described further below. But we
did not find evidence that there was a significant link between APA and their interactions or
communications with the CIA. It is a fair question whether important interactions between these
very prominent former APA officials also entailed, led to, or were connected to important
interactions between APA and CIA. Except for very limited instances, we did not see any
evidence of this in our examination of APA emails and other documents, and in our interviews,
despite having found a very substantial amount of email and documentary evidence establishing
important interactions between APA and government officials in other contexts, as set out above
and below. On the one hand, this makes sense, since prominent psychologists who are former
APA Presidents and Board members would not necessarily think that their interactions with the
CIA about these issues would call for them to contact the APA, unless the CIA had specifically
requested something from APA. On the other hand, we keenly recognize that in investigating
activities involving the CIA, an agency that trains people to keep things secret for a living, we
are especially limited in our ability to determine definitively what occurred, and therefore we are
aware that our conclusions can only be based on the evidence available to us. This is especially
true when the interactions are between CIA officials and individuals who were not APA officials
or employees at the time, since their emails would not necessarily have been within APA’s
system.
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Finally, as we got deeper into our investigation and had reviewed more evidence and had
a greater understanding of what we were seeing, we observed that in 2004 and 2005, during the
year leading up to the PENS Task Force, the APA’s interactions with CIA officials on this issue
slowed dramatically, and its interactions with DoD officials increased dramatically. As a result,
the collaboration between APA officials and government officials regarding the PENS process
and related follow up events was dominated by APA–DoD interactions, with no evidence of
significant CIA interactions regarding PENS.
Clearly, there were important APA–CIA interactions on the topic of ethics and
interrogations in 2004, including a key set of emails between Hubbard, Mumford, and Behnke in
which Hubbard indicated that Andy Morgan and Hubbard (although likely just Morgan) had
concerns about activities of national security psychologists that appeared inconsistent with the
requirements of the APA Ethics Code. Those emails launched internal APA discussions that led
to a confidential July 2004 roundtable meeting at APA on the topic for about 15 national security
psychologists from the CIA, DoD and the FBI (including Hubbard, Shumate, Fein, and Gelles),
and some academics and APA staffers (including Behnke)—which in turn was the precursor of
the PENS Task Force.
However, after this July 2004 meeting, we saw no evidence of follow up discussions with
Hubbard or the CIA on the topic, and no apparent CIA interest in the PENS Task Force, in the
evidence we reviewed. Likely explanations for this are that (i) Hubbard, APA staff’s main point
of contact at the CIA, retired from the CIA in April 2005 (two months before PENS), leaving
APA staff with no significant contact at the CIA, and (ii) the CIA’s enhanced interrogation
program was apparently in its waning days by late 2004 and early 2005, according to the 2014
Senate Intelligence Committee report. 23
One potential exception to this is the participation of “observer” Mel Gravitz at the PENS
Task Force meetings. Gravitz, who is approximately 90 and refused several requests for an
interview, had worked as a contractor for years for the CIA. A leading expert on hypnosis and
considered by some the founder of operational psychology, it is conceivable that Gravitz was at
the task force in order to advance some interest of the CIA in the result of PENS, and was
communicating with CIA officials in advance of and during PENS. However, we have seen no
evidence of this, and it seems unlikely to us in light of what appears to be the very limited role
Gravitz played at PENS and the absence of other visible APA-CIA communications—which we
would expect to have been apparent to us based on our visibility into the substantial
communications between Hubbard and APA. On the other hand, as set out in the detailed PENS
section below, Gravitz contributed a small suggested paragraph to the draft PENS report
regarding the recommendation that research be encouraged, and he had a prior relationship with
Behnke.

23

Senate Select Committee on Intelligence, Committee Study of the Central Intelligence Agency’s
Detention and Interrogation Program, 113th Congress, 143 (2014) (“In the fall of 2004, CIA officers
began considering ‘end games,’ or the final disposition of detainees in CIA custody. . . . By the end of
2004, . . . [m]ost of the detainees remaining in [CIA] custody were no longer undergoing active
interrogations; rather, they were infrequently questioned and awaiting a final disposition.”).

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We know that some of the most significant critics of APA—who have had access to the
emails of the RAND employee and CIA contractor (Scott Gerwehr, now deceased), which
revealed frequent emails with Hubbard, Mumford, and Brandon—have posited that there must
have been significant CIA influence regarding the outcome of the PENS Task Force in light of
the substantial APA-CIA interactions shown in these emails and the highly suspect content of the
PENS report. Without the same access we had to APA emails and documents showing extensive
APA–DoD collaboration in and after the time of the PENS Task Force, this is an understandable
inference, once one reaches the conclusion that the PENS Task Force could only be explained by
some sort of governmental influence. But with the benefit of the additional information
discovered in our investigation, one can understand more clearly how very substantial APA–CIA
interaction in the 2001 to 2004 time period did not lead to substantial CIA interactions with APA
in relation to the PENS Task Force.
2.

Initial contacts and 2002 Conference

It appears that the relationship between APA staff and Hubbard began as a result of the
proactive effort by the Science Directorate shortly after 9/11 to reach out and offer assistance
from psychological science to government agencies involved in counter-terrorism—principally
the FBI and the CIA, and eventually the Department of Homeland Security as well. Mumford,
the head of government relations for the Science Directorate, asked Brandon, a relatively new
Science Fellow at APA (a one- to two-year position) who had been a psychology researcher at
Yale, to work on making the connections and setting up meetings. Kelly, a subordinate to
Mumford who was generally in charge of government relations with DoD for the Science
Directorate, was also involved.
This outreach led to discussions with Steve Band, Chief of the FBI Behavioral Science
Unit at the FBI Academy in Quantico, Virginia, about organizing a counter-terrorism conference
at which law enforcement and intelligence personnel would come together with academics and
researchers to brainstorm and compare ideas. The result was a February 2002 conference at the
FBI Academy, titled “Countering Terrorism: Integration of Theory and Practice,” that was
attended by about 70 people, including Hubbard, Mitchell, and other CIA personnel, FBI
personnel, other federal officials, state and local law enforcement personnel, a wide variety of
academics, and APA staffers including Mumford, Kelly, Brandon, and Behnke. Brandon and
Mumford produced a 50-page summary that listed the participants and the different “scenarios”
that were discussed by smaller groups. A small amount of the document discussed interrogation
and interview techniques, but there is no reference to physical, aggressive, or disorientation
techniques that might be used to get a non-compliant person to talk.
3.

Martin Seligman

Interviews and emails indicate that the model for the 2002 conference was a December
2001 meeting at the home of Martin Seligman, prominent psychologist and former APA
President, commonly associated with the “learned helplessness” theory among other theories.
The 13-page summary of the meeting, entitled “How To Win the Peace,” lists the 18 participants,
including Hubbard, Mitchell, Band, and several prominent academics. The document lists six
policy recommendations with a summary of the rationale for each, including “Isolate Jihad Islam

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from Moderate Islam worldwide,” and “Subvert the social structure of terrorist organizations.”
Interrogations were not referenced.
Combining the statements made to us by Seligman, Hubbard, and Mitchell, it appears that
Hubbard met with Seligman at his house on two occasions—once along with Mitchell and
Jessen, and once along with two other CIA psychologists or attorneys. At these meetings,
learned helplessness was discussed (in substantial detail during at least one of the meetings), and
Seligman was invited to speak to a SERE conference in San Diego about learned helplessness.
Our evidence shows that Mitchell was very interested in the application of the learned
helplessness theory to interrogations of uncooperative detainees. Hubbard and Mitchell say that
they never discussed interrogations with Seligman and did not provide him information about the
interrogation program. Seligman agrees and says he thought their interest in learned helplessness
related to its insights for captured US personnel who are trained through the SERE program to
resist providing information in interrogations. We think it would have been difficult not to
suspect that one reason for the CIA’s interest in learned helplessness was to consider how it
could be used in the interrogation of others. But this probably depends on whether it would have
seemed likely in 2002 that the CIA would use SERE techniques to conduct interrogations. A
December 2002 article in the Washington Post quoting unnamed CIA officials as describing
highly abusive interrogation techniques at CIA black sites would have created this suspicion, but
we do not have enough information to know what Seligman knew or thought at the time. And
because we do not see any evidence that this was connected with actions or decisions by or
communications with APA officials, we did not spend further time investigating the matter.
4.

Joseph Matarazzo

Hubbard says when he returned to CIA headquarters in 2000 from a covert assignment in
London to lead a new behavioral science research unit, he believed the CIA needed to be less
insular and he therefore formed the PSAC with Matarazzo, Gravitz, and Fox to enhance the
access of Hubbard’s unit to experts in the area of psychological assessment and related issues.
Contemporaneous emails from Brandon confirm that this was his approach. Matarazzo, Gravitz,
and Fox were apparently paid a small amount. Hubbard, Matarazzo, and Fox told us the
meetings focused almost exclusively on understanding and applying psychological assessment
models in various contexts, but that none of the contexts related to interrogations.
However, we gathered some pieces of evidence (including from Matarazzo himself, age
89, who was very responsive and proactively cooperative in our investigation) that Matarazzo
was making some efforts to assist the CIA on interrogation topics, which may have been separate
from the activities of the PSAC. First, Matarazzo recalled Hubbard asking him to provide an
opinion about whether sleep deprivation constituted torture. After querying some psychologists
with relevant expertise, Matarazzo told Hubbard that he did not believe sleep deprivation was
necessarily torture. Matarazzo recalled responding to a written inquiry from Hubbard on the
topic, but he did not have access to the document. Hubbard said he could not recall this.
Second, the head of the APA Science Directorate at the time, Kurt Salzinger, recalls Matarazzo
approaching him shortly after 9/11 to ask if Salzinger knew psychologists who worked in the
area of interrogation, or “getting information from people.” Salzinger said he made one inquiry
that went nowhere and then he dropped it. Finally, PENS Task Force member Michael Wessells
recalled Matarazzo approaching him at a 2002 psychology conference in Singapore and saying
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something to the effect of, “In this environment, things are different, and the CIA is going to
need some help. Things may get harsh. We may need to take the gloves off.” Wessells said he
was not sure what Matarazzo wanted, and could not tell if Matarazzo was asking him to help the
CIA or was simply trying to persuade Wessells that harsher treatment of detainees was justified.
Wessells said he told Matarazzo he disagreed and nothing further occurred.
In addition, corporate records show that Matarazzo was a 1% owner of Mitchell and
Jessen’s company (Mitchell Jessen & Associates), which apparently received a very large
contract from the CIA, as reported in the Senate Intelligence Committee’s 2014 report and
various media reports. Matarazzo insists that he was not an owner of this company but was
instead an owner of “Knowledge Works,” which was a continuing education company run by
Mitchell and Jessen, he says. The documents we have show that, at the time, “Knowledge
Works” was not a separate company but was a division of Mitchell Jessen & Associates that
received continuing-education accreditation from APA and conducted a relatively small number
of continuing-education classes for military personnel. Mitchell and Matarazzo gave us
statements describing Matarazzo’s role in the company as highly limited and solely related to the
continuing education portion of the company. We did not find any connection between this topic
and APA actions or decisions about its ethics policies or government interrogation policies or
activities, and therefore did not consider this a central part of our investigation. We therefore did
not take further steps to determine what Matarazzo’s role was in Mitchell Jessen & Associates.
5.

Melvin Gravitz and his opinion for James Mitchell on ethics and
interrogations

We learned that in about late 2002, the head of the CIA’s Office of Medical Services,
psychologist Terrence DeMay, complained about Mitchell’s involvement in the interrogations
then being conducted. This led to a substantial dispute within the CIA, which led the head of the
CIA’s Counterterrorism Center, who oversaw Mitchell and Jessen’s involvement in
interrogations, to determine that an opinion should be sought regarding the ethics of a
psychologist participating in the CIA’s interrogations. It was decided within the CIA to ask Mel
Gravitz to provide the opinion.
Gravitz’s written opinion—a very interesting document—was provided to us. Entitled
“Ethical Considerations in the Utilization of Psychologists in the Interrogation Process,” the
version that we have was emailed from Gravitz to Mitchell on February 13, 2003, during a very
active period of the CIA’s enhanced interrogation program. The document says that “[r]ecently,
some questions have been raised regarding the ethical implications of psychologists applying
their skills by assisting in the interrogation process of certain persons who have been detained in
the currently ongoing world-wide war against terrorism.” It recites that it will analyze the APA
Ethics Code principles as they apply to “Agency staff psychologists and contractors, all of whom
are required by regulation to be licensed.” At the time, Mitchell was an APA member, as
described in greater detail in the “Ethics Adjudications” section below. The document states that
the services rendered by psychologists in interrogation, could include consulting to, observing, or
participating in interrogations. The document says that one of the Ethics Code’s stated goals is
“the protection of the individuals and groups with whom psychologists work, the latter including
the national interest.” No cite is given for this statement.

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The document then quoted, and at times discussed, various Ethical Standards in the
Ethics Code, including Standard 1.02 (conflict between ethics and law or orders). The document
cited the provision relating to “providing services in emergencies” (Standard 2.02, which relates
to providing mental health services in emergencies, even if it is not within the psychologist’s
area of competence) for the proposition that “there are also implications for a national security
emergency where lives may be at stake.” The document cited the provision that psychologists
base their work on “established scientific and professional knowledge” (Standard 2.04), and
added that “when there is a minimal knowledge base existing in science or practice, such
services may be informed by the psychologist’s prior and ongoing experience.” This appears to
be a reference to the relative paucity of research on the effectiveness of the “enhanced”
interrogation techniques, and a suggestion that Mitchell’s experience with SERE training or
other detainee interrogations could be relied upon. The document closed with a reminder that
“the psychologist has an obligation to [a] group of individuals, such as the Nation,” and that the
Ethics Code “must be flexible applied to the circumstances at hand.”
We were told that as a result of Gravitz’s opinion, the chief of the CIA Counterterrorism
Center was satisfied that Mitchell could continue participating in and supporting interrogations.
We found no evidence that Gravitz’s opinion was prepared in consultation with or with
the knowledge of anyone at APA. Given our knowledge of Behnke’s writing style and approach,
we do not believe he had any involvement in this document, as its style and mode of analysis are
very different than his.
Hubbard and Mitchell said generally that they never sought and were never aware of
Behnke or anyone from APA providing information or any communications about ethics issues,
interrogations or otherwise.
Mitchell described for us in general terms why he thought his involvement in
interrogations (including his personal involvement in waterboarding, based on his own
statements) was ethical under the APA Ethics Code. He said that it was appropriate under the
Ethics Code to weigh the potential harm to the individual being interrogated (in order to gather
information to prevent a terrorist attack) against the potential harm to other individuals (the
public) that would be caused from a terrorist attack. He said that based on the “chatter” he was
seeing, the balance of harms justified the interrogation techniques he and others used—which, he
emphasized, were legal at the time.
Gravitz’s opinion is notable for its emphasis on the consideration to be given to national
security interests and protecting the country, well beyond anything in the actual Ethics Code.
The document also emphasizes the supposed “flexibility” of the Code. Clearly, the Gravitz
document would have been seen as creating a wide open, unrestricted ethical path to engage in
virtually any acts a psychologist believed were appropriate to “protect . . . the national interest.”
It provides an excellent example of the importance of deciding whether loose or tight ethical
constraints are right for a particular context. An analysis of APA ethics guidance was not an
irrelevancy—even for Mitchell and the CIA. While there is no guarantee that a different ethics
opinion—one with a more constraining analysis—would have stopped Mitchell or other
psychologists from participating in abusive interrogations, the outcome of the analysis had the
potential to affect decisions about how the government would proceed.

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Mitchell, who resigned from his APA membership in June 2006, about nine months after
a disciplinary complaint was brought against him and not pursued by the APA Ethics Office (as
detailed below), said he could not recall why he resigned, but believed it was because he thought
APA was becoming “overly political” and was taking stances that were not consistent with his
beliefs.
6.

Philip Zimbardo

Some of APA’s critics suggested that, based on information Zimbardo provided,
Seligman and Matarazzo may have tried to help Hubbard recruit Philip Zimbardo, APA
President in 2002, to assist the CIA, including with its interrogation efforts. Zimbardo and Kirk
Kennedy told us that Hubbard and Kennedy met with Zimbardo (although this may have been
two meetings instead of one), and Zimbardo remembers meeting with Hubbard. Zimbardo says
that Hubbard asked him to gave a talk on interrogations, based on his work on law enforcement
interrogations. Zimbardo said he did give a talk to a small group at the CIA (apparently
Hubbard’s unit), but that he declined any further involvement with Hubbard or the CIA,
including a suggestion from Hubbard (vaguely remembered by Zimbardo) that Zimbardo could
receive a research grant. (Hubbard said he did not recall making this suggestion.) We found no
evidence that these interactions between Zimbardo and Hubbard involved other APA officials or
staff, or that they led to any actions by or communications with APA. This does not mean that
there was no further connection between Zimbardo and the CIA, but we have no reason to
believe this was the case.
Some have told us that Hubbard may have been attempting to influence Zimbardo while
he was President to ensure that Ethics Code provisions governing informed consent in research
(which were changed in 2002 as part of the APA’s Ethics Code revision process) were changed.
We saw no evidence to support this, and the meaningful changes to the relevant provision were
proposed and agreed to by the Ethics Code Task Force prior to 9/11. As APA President, perhaps
Zimbardo would have been in position to roll back the changes to this provision drafted by the
Ethics Code Task Force before the Council of Representatives finally approved it in 2002, and in
that sense, perhaps one might have had a motive to lobby him to ensure the change was not
reversed before the Code was finalized. But we saw no evidence to support this. And getting
involved in trying to reverse any of the changes agreed to by the Ethics Code Task Force after a
five-year process (discussed below), even as APA President, seems like an unlikely endeavor to
undertake.
The evidence of Zimbardo’s involvement on national security issues when he was
President in 2002 is that he met on Capitol Hill with Senator Daniel Inouye, chairman of the
Senate Defense Appropriations Subcommittee, to generally express support (as APA typically
did) for the funding of DoD behavioral science research. Zimbardo recommended to APA staff
that they set up a meeting for him with National Security Advisor Condoleezza Rice, whom
Zimbardo knew when Rice was Provost of Stanford University. A meeting was set up with
Rice’s staff that Zimbardo, Heather Kelly and Susan Brandon attended, but Rice did not. Kelly
and Brandon recalled that the meeting was a relatively high-level discussion with Zimbardo
doing most of the talking and the National Security Council staff saying little of interest.
Contemporaneous emails reveal nothing else of interest.

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7.

EXECUTIVE SUMMARY

Robert Sternberg

The 2003 APA President, Robert Sternberg, made a presentation to Hubbard’s group at
the CIA in December 2002, accompanied by Brandon and Mumford. The presentation related to
the development of psychological assessment tools based on the theory of “successful
intelligence.” The Science Directorate publicized the visit in its newsletter under the headline,
“APA President Sternberg Visits the CIA,” and posted his power point presentation on the APA
website.
Sternberg was uncooperative with the investigation; he begrudgingly and briefly spoke to
Sidley and denied ever giving a presentation to the CIA or visiting the CIA.
8.

2003 and 2004 conferences

Following the February 2002 conference at the FBI, Mumford and Brandon discussed
planning new conferences on topics that they thought would be of interest to Hubbard and the
CIA, based on their communications with Hubbard, especially the subject of deception. As part
of this effort, Brandon sent emails in May 2002 to a wide variety of researchers and academics,
most of whom she did not know, soliciting ideas for research regarding this issue. One of the
researchers who responded was RAND employee and CIA contractor Scott Gerwehr. Gerwehr
was an expert on the topic of detecting deception. Brandon, Mumford, and Gerwehr began
emailing about the topic and the possibility of creating a conference on the subject, and they
brought Hubbard into the email discussions. This developed into a close and friendly working
relationship between the four of them as they planned CIA- and RAND-sponsored conferences
in 2003 and 2004. By this point, Brandon had left the APA and had taken a position at the
National Institutes of Health. By the time of the 2004 conference, she had taken a position in the
Science Division of the Office of Science and Technology Policy within the Executive Office of
the President.
The 2003 conference, called “The Science of Deception: Integration of Practice and
Theory,” took place on July 17 and 18 at RAND’s headquarters in Arlington, Virginia. About 40
people attended, including Hubbard, Mitchell, Jessen, and about ten others from the CIA (some
of whom gave only their first names), Steve Band and two others from the FBI, Scott Shumate
(having moved by then from CIA to DoD), a SERE psychologist who worked with Morgan
Banks (Gary Hazlett), Andy Morgan, Brandon, Mumford, Gerwehr, and numerous academics
and researchers. As with the 2002 conference, a detailed written summary was created
describing the “scenarios” discussed, “research challenges,” and the participants. One of the
scenarios related to “law enforcement interrogation.” After discussing three main research
challenges, the written summary listed five additional research challenges, including “what
pharmacological agents are known to affect apparent truth-telling behavior,” and “what are
sensory overloads on the maintenance of deceptive behaviors.” Other than these notes, there
were no strong indications that interrogation topics were discussed that are relevant to our
inquiry. None of the conference participants we spoke to believed that there was any
information provided about what techniques the CIA was using or considering using in
interrogations or about its actual interrogation program, and we saw nothing from the
contemporaneous emails that contradicted this. As with the 2002 conference, details about the

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2003 conference, including its sponsorship by the CIA, were published in APA’s Science
Directorate newsletter.
A 2004 two-day conference on “intuition in policing” was organized and held in similar
fashion. Brandon, Mumford, Gerwehr, and Hubbard organized an extra day of the conference on
the “detecting deception” topic. We found nothing more relevant regarding this conference than
the 2003 one.
9.

Role of Susan Brandon

Some of APA’s critics have suggested that Brandon, because of her position at the Office
of Science and Technology Policy (OSTP), may have played an important role in pushing APA
to support the Bush Administration and aggressive interrogation techniques. We think this likely
overstates Brandon’s position in the Administration, and her influence within APA.
OSTP is one of about 20 offices within the Executive Office of the President, which also
includes, for instance, the National Security Advisor, the Council of Economic Advisers, the
Office of Management and Budget, the Office of National Drug Control Policy, and the Office of
the U.S. Trade Representative. The head of OSTP is its Director who has a Director’s Staff.
There are currently five divisions within OSTP, including National Security and International
Affairs, Technology and Innovation, Environment and Energy, and Science. Each division is
headed by an Associate Director. Underneath each Associate Director are various Assistant
Directors and staff.
Brandon was an Assistant Director within the Science Division. Her title was Assistant
Director for Social, Behavioral and Education Sciences. She was therefore several levels below
the Director of OSTP. She said she had little contact with the Director, and we have not seen
email evidence that contradicts this. Emails from the time show that she occasionally expressed
her disappointment to Mumford that she was often thought of as an “education research” person
within OSTP, even though this was not her area of expertise.
It is not clear that the Science Division of OSTP (or OSTP as a whole) had any
significant influence at the time on the issue of detainee interrogations or related national
security issues. We have not seen evidence or public reporting that suggests that OSTP was a
significant player within the Bush Administration, and officials within CIA and DoD who we
asked about OSTP and Brandon thought there was no influence whatsoever.
Because OSTP is part of the Executive Office of the President, Mumford jokingly
referred to her as “White House Susan” and “Oval Office Susan.” But we saw no evidence
supporting the contention that she was a significant player within the Administration on these
issues.
As set out above, Brandon was an observer at the PENS Task Force and played a role in
drafting some portions of the recommendations regarding research. In that respect, she had some
influence on the PENS Task Force report. But otherwise, and except as set out above regarding
the conferences that APA organized with the CIA, the FBI, and RAND, we are not convinced
that she played an important role in APA decisionmaking or actions.

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D.

EXECUTIVE SUMMARY

Conclusions Regarding Changes to Ethics Code Task Force in 2002, Including
“Nuremberg Defense”

The evidence establishes that revisions to the 2002 Ethics Code (“Code”) were a response
to the perception that the Code was being used as a weapon against psychologists to create
liability in criminal, civil, and administrative proceedings. We did not see evidence that the
revisions were a response to, motivated by, or in any way linked to the attacks of September 11th
or the subsequent war on terror. Nor did we see evidence that they were the product of collusion
with the government to support torture. Rather, psychologists felt that the length, breadth, and
broad application of the five aspirational general principles and over 100 enforceable ethical
standards in the Code provided a basis for state licensing boards, patients, and third-parties to
pursue unwarranted and unjust legal action against psychologists. The 14-member Ethics Code
Task Force (“ECTF”), comprised of members from a variety of practice areas, sought to revise
the Code to address this issue and create protections for psychologists within the Code to insulate
them from liability.
Over a six-year period, the ECTF, chaired by Celia Fisher, revised the Code to effect the
desired changes and address the concerns of psychologists. The revised code (“2002 Code”)
became effective June 1, 2003. The most significant changes relevant to our review were the
revisions to Standard 1.02 which addressed “Conflicts Between Ethics and Law.” In the 2002
Code, Standard 1.02 was revised to make clear that it applied to conflicts between ethical
obligations and the “law, regulations, or other governing legal authority” where the standard had
previously only included the term “law.” APA understood “regulations or other governing legal
authority” to include military orders from a superior. In the event of a conflict, psychologists
were required to make known their commitment to the Ethics Code and take steps to resolve the
conflict. If the conflict was unresolveable, psychologists were permitted to adhere to the
requirements of the law, regulations, or other governing legal authority – a concept that was not
included in the prior version of Standard 1.02. Standard 1.02, in the 2002 Code, was the first
time that the Code explicitly permitted psychologists to follow the law instead of their ethical
obligations when faced with a conflict between the two.
APA critics have alleged that the revisions to Standard 1.02 were the product of collusion
with the government and had the effect of providing psychologists with a defense to torture.
Specifically, they allege that the revised language in Standard 1.02 was developed with the
government to permit psychologists’ participation in interrogations and that it created a loophole
that allowed psychologists to ignore their ethical obligations when these obligations conflicted
with law, regulations, or other governing legal authority. In this way, critics allege that the
standard provided cover for psychologists to participate in or consult on interrogations that
employed enhanced techniques or methods that otherwise constituted torture. These
psychologists, the critics have alleged, could, and in fact did, avail themselves of the protections
of Standard 1.02 and the Nuremberg Defense 24 to excuse their unethical behavior on the grounds
that they were “only following orders.”

24

The Nuremberg Defense commonly refers to one of the arguments employed by defendants charged
with war crimes and crimes against humanity at the Nuremberg trials after World War II. See The New
York Times, “Germans Disclaim Guilt Under Law,” July 5, 1946 (the defense argued that “everything that

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Given what we now know about the role some psychologists played in designing the
enhanced interrogation program, the government’s narrow definition of “torture” during the early
years of the war on terror, and the way in which the military used psychologists as members of
the behavioral science consultation teams at Guantanamo, the critics’ argument is
understandable. But the evidence does not fully support that argument. While the revisions to
Standard 1.02 may have provided protection for some psychologists who were involved in
abusive interrogations, the evidence shows that this was an unintended consequence of the
ECTF’s desire to insulate psychologists from liability in other areas –unrelated to interrogations
and the way in which the government used psychologists during the war on terror. And the way
in which psychologists may have used Standard 1.02 post hoc as cover for unethical behavior
was not the focus of our inquiry. Instead we focused on the motivation, purpose, and process by
which the Code was revised during the ECTF process.
The evidence shows that the primary motivation for the revision to Standard 1.02 was to
protect psychologists who faced difficult choices when their ethical obligations of confidentiality
conflicted with legal directives in the form of subpoenas or court orders that required disclosure
of confidential patient information. ECTF members articulated two specific concerns, one raised
by clinicians and forensic psychologists, and one raised by military and correctional
psychologists, regarding ethical conflicts that drove the revisions to Standard 1.02. First,
clinicians and forensic psychologists wanted to make clear that they could follow the law when
they received subpoenas for treatment records (often in child custody cases) and faced the choice
of complying with the subpoena and breaching confidentiality or ignoring the subpoena and
being held in contempt. Second, military and correctional psychologists wanted to make clear
that they could comply with military or other lawful orders when they received orders that
required them to disclose confidential patient treatment records instead of being forced to choose
between complying with the orders and disregarding them and facing a court martial or adverse
employment consequences. Both groups of psychologists wanted the Ethics Code to make clear
that when faced with a conflict, they could follow the law or an equivalent order or directive.
The revisions to Standard 1.02 that effected this change were proposed in October 2000, nearly
one year prior to the attacks of September 11th – and thus could not have been a response to or
motivated by the war on terror – or the result of collusion with the government in the wake of
September 11th.
Creating an avenue for psychologists to follow the law and subordinate their ethical
obligations, particularly when the law included military orders, could have, and perhaps should
have, been a red flag to ECTF members and prompted them to consider the Nuremberg Defense.
And while we have no evidence that the ECTF considered this issue in connection with 1.02, he
ECTF did explicitly discuss the Nuremberg defense in the context of the closely-related Standard
8.03 (now 1.03), which addressed “Conflicts Between Ethics and Organizational Demands.”
The primary concern with regard to Standard 8.03 was whether it was fair to permit
psychologists working for an organization or corporation to engage in certain conduct without

Adolf Hitler had done in Germany was legal, and therefore those who followed his orders could not be
accused of criminal acts.”)

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ethical ramifications, while sanctioning independently practicing psychologists who engaged in
the same conduct but not pursuant to their employer’s directive.
Before the revisions to Standard 1.02, Standard 8.03 was the ethical standard to which
military and correctional psychologists would have looked for guidance. The revisions to 1.02
provided another source of guidance – arguably guidance that was clearer with regard to
conflicts. Given that the Nuremberg Defense was discussed in the context of Standard 8.03, one
would have expected someone to have raised it during discussion of Standard 1.02. Yet it
appears that no one did.
We have no evidence that the failure to discuss the Nuremberg Defense in the context of
revisions to Standard 1.02 was in any way connected to the work of psychologists in national
security settings or interrogations. The only documentary evidence that we found related to the
issue of interrogations in connection with the Code revision was an inquiry from a military
psychologist who was also a Council representative, in February 2002, asking whether
consultation with police interrogators who were trying to “break down” a suspect, or consultation
with national intelligence organizations, was covered in the general principles of the code and
whether principles on consultation could clarify what activities were covered by the Code. The
ECTF Chair responded that providing specific guidance on pathways psychologists could use to
address the dilemma was “beyond the scope of the code.”
Thus, while at least one psychologist contemplated application of the code to
psychologists consulting on interrogations, albeit police interrogations, we did not see evidence
that this issue was considered by the ECTF, other than the Chair. That the Nuremberg defense
and interrogations were not specifically discussed in the context of revisions to Standard 1.02
may suggest that the ECTF missed certain red flags, did not consider or contemplate all issues
facing military and correctional psychologists, and deemed certain issues beyond the scope of the
code. And this helped create a loophole in the Ethics Code that could be used later by
psychologists seeking to escape ethical sanctions for following orders to take actions that would
have otherwise violated the Code. But we did not find evidence that these revisions were the
product of collusion with the government. Instead, the evidence shows that the revisions were
born out of a desire to protect psychologists and a willingness to subordinate ethical obligations
to do so.
APA critics have also alleged that changes to Standard 8.05 – which pertains to
dispensing with informed consent for research – were the product of collusion with the
government to facilitate psychologists’ participation in abusive interrogations that constituted
torture. As revised in 2002, Standard 8.05 allowed psychologists to proceed with research
without informed consent from the subject where “permitted by law or federal or institutional
regulations.” Critics alleged this change allowed psychologists to conduct research on detainees
without their providing, or being able to provide, informed consent. As with the changes to 1.02,
we did not find any evidence that the changes to 8.05 were the result of collusion with the
government. Indeed, the change to the language that allowed dispensing with informed consent
if the law permitted it was added to the draft Code prior to September 11, 2001, and therefore
could not have been the result of collusion with the government in the subsequent War on Terror.

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E.

EXECUTIVE SUMMARY

Conclusions Regarding Improper Application of APA Ethics Disciplinary
System to Protect CIA and DoD Psychologists

APA’s Ethics Office works jointly with the Ethics Committee in adjudicating ethics
complaints against APA members. 25 The “fundamental objectives” of the Ethics Committee,
among others, are to “maintain ethical conduct by psychologists at the highest professional level”
and “to endeavor to protect the public against harmful conduct by psychologists.” 26 Both the
Ethics Office and the Ethics Committee fell short of meeting these objectives when adjudicating
ethics complaints alleging improper involvement by national security psychologists in
interrogations.
APA critics have alleged that the Ethics Office has been unwilling to investigate or act on
complaints regarding psychologists who participated in, or were otherwise involved in
interrogations. The evidence supports this allegation and shows three primary factors led to the
Ethics Office’s failure to properly address these complaints: (1) when conducting investigations
the Ethics Office’s longstanding practice is not to pursue the full investigative steps permitted by
the Ethics Committee Rules and Procedures (“the Rules”); (2) the Ethics Office stretched the
interpretation of its procedural rules so as to be as favorable as possible to the accused
psychologist; and (3) at times the Ethics Director, Stephen Behnke, actively resisted taking any
action against psychologists who participated in interrogations.
The Ethics Committee has an established set of Rules and Procedures (the “Rules”) that
apply to the adjudication of ethics complaints. When adjudicating complaints, the Ethics
Committee and the Ethics Office are guided by these Rules as well as the longstanding practices
of the Ethics Office, some of which are not specifically outlined in the Rules. Based on the
Ethics Office’s practice, the adjudication process is typically a highly limited, “paper-only”
review, which means that the “investigation” consists merely of examining documents that are
sent to the Ethics Office by the parties to an ethics complaint. Investigators take no affirmative
steps to seek documents from other witnesses, and conduct no interviews, even though the Rules
explicitly permit them to do both, and suggest to outside observers that the Ethics Office will
take such normal investigative actions. 27 When faced with the choice of taking more
investigative steps, as permitted by the Rules, and taking fewer steps, the Ethics Office almost
always chooses the latter. Indeed, the “investigations” conducted by the Ethics Office do not
comport with any ordinary understanding of the term “investigation” and would be more
accurately described as a document review or case file assessment.
The limited steps taken by the Ethics Office to investigate ethics complaints facilitates
interpreting the Rules in a way that is most favorable to the accused psychologist, which at
times, is antithetical to a natural reading of the Rules. This strained reading of the Rules hinders
25

APA Ethics Office, American Psychological Association, available at http://apa.org/ethics/index.aspx.

26

APA Ethics Committee Rules and Procedures, Part I.1, American Psychological Association, available
at http://apa.org/ethics/code/committee.aspx#overview.

27

See Rules Part V, Subsections 5.3.3, 6.2 (in deciding whether to open a full “case investigation,” and in
conducting a case investigation, “[a]dditional information may be requested from the complainant,
respondent, or any other appropriate source”).

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the Ethics Office’s ability to conduct any meaningful investigations into allegations of unethical
behavior. The limitation is evidenced by the way in which the Ethics Office “investigated” the
ethics complaints filed against Colonel Larry James and Major John Leso. The complaint filed
against James, in December 2007, generally alleged that under his command, psychologists
participated in abusive interrogations at Guantanamo, which included isolation and techniques
designed to disorient the detainee, among other things. The “investigation” of this complaint
consisted of a review of the documentation physically submitted by the complainant (but not
examining critical documents cited by the complainant that required slightly more than minimal
effort to obtain), after which the investigator, Stanley Jones (former APA Ethics Director hired
as a consultant to do work for the Ethics Office from time to time), recommended that the case
be closed without further action. Jones wrote that he did not think that there was “cause for
action” as defined in the Rules; that is, he thought that the alleged actions, if proved, would not
constitute a breach of ethics.
In recommending that the James matter be closed as not meeting the “cause for action”
standard, Jones wrote that the complainant “provide[d] no data that the respondent ever in fact
employed isolation or sensory deprivation at all, much less that he did so as part of an abusive
interrogation program.” This seems to suggest that the complainant would have to provide
evidence to show that James actually participated in an abusive interrogation in order to find
cause for action. Yet a plain reading of the Rules shows that the Rules do not require this
heightened level of proof. Rather, the Rules provide that a cause for action “shall exist when the
respondent’s alleged actions and/or omissions, if proved, would in the judgment of the decision
maker constitute a breach.” 28
Jones told Sidley that, with respect to the allegations set forth in the complaint against
James, he questioned whether a psychologist would have had “notice that the 2002 Ethics Code
meant that they could not be involved in activities that might create a degree of disorientation,
disorganization, and dependence,” and that he believed what James was allegedly doing “did not
appear to violate the 2002 Code.” At the time he was considering the matter, Jones also
questioned whether the alleged behaviors would violate the statements of APA as of 2007; he
was not sure that the alleged behavior would, in fact, be unethical under these standards. Jones’s
view that the alleged behavior was not, per se, unethical was shared by at least one other person
in the Ethics Office.
Although the way in which the Ethics Office handled the James matter was technically
permissible under the Rules, it demonstrates just how little effort the Ethics Office expends in its
“investigation” of ethics complaints, the way in which the Ethics Offices stretches to construe
the Rules in a way that is favorable to the accused, and how much the Ethics Office falls back on
the rationale that standards in the Ethics Code were too vague to put psychologists on proper
notice that certain interrogation techniques were unethical—a rationale that was never shared
with APA membership, or the general public.
The complaints filed against Leso, in 2007 and 2008, generally alleged that as a BSCT
psychologist, he established procedures for interrogating detainees and presided over
28

Rules, Part V, Subsection 5.1.

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interrogation sessions in which abusive techniques were used. An actual “case investigation”
was never opened into the Leso matter. Instead, the Ethics Office merely opened a “preliminary
investigation,” which the Rules say is an investigation that may be conducted if the complaint
does not provide sufficient information to determine whether “cause for action” exists—that is,
whether the allegations, “if proven . . . would constitute a breach of ethics.” The “preliminary
investigation” into the allegations against Leso consisted of correspondence with one of the
complainants to request support for the allegations and correspondence with Leso to request his
response to the allegations. The Ethics Office stayed the matter when an action against Leso was
pending before a state licensing board. When the licensing board did not act against Leso, the
Ethics Office took the additional step of conducting internet searches to obtain additional
information and kept the matter open for a total of six years (still merely as a “preliminary
investigation”), with the explanation that they wanted to see if information related to Leso’s
actions would become publicly available. The Ethics Office did not take any affirmative steps to
request information from witnesses who might have had relevant information (including
individuals with whom APA had close ties, such as Banks, Dunivin, or James) or to seek
documents through, for instance, a FOIA request. As the Deputy Director of the Ethics Office
and the Director of Adjudication, Lindsay Childress-Beatty recommended closing the matter
because she thought there was a “reasonable basis to believe that the allegations cannot be
proved by a preponderance of the evidence.” This was a reference to another Rule, Rule 5.5,
which states that even if “cause for action” exists (that is, the allegation, if proved, would
constitute a breach of ethics), the case shall be closed if the Ethics Committee Chair and the
Ethics Office Director agree that “there is a reasonable basis to believe that the alleged violation
cannot be proved by a preponderance of the evidence.”
As in the James matter, the Ethics Office staff again questioned whether certain
techniques, such as “sleep deprivation, withhold food, isolation,” were actually unethical. In a
memorandum to the Ethics Committee Chair, Childress-Beatty wrote, “these techniques in and
of themselves may not be cruel, unusual, inhuman, degrading treatment or torture depending
upon factors such as the situational context, length of time used, and intensity.” ChildressBeatty’s view is a departure from what Behnke told Sidley—that most of these techniques should
have been prohibited, especially in light of the PENS Report. Moreover, suggesting that
techniques such as sleep deprivation, withholding food, and isolation could not be proven to be
unethical by a preponderance of evidence even before an actual case investigation is conducted is
stretching the bounds of the Ethics Code so as to not find a violation of any standards. Notably,
Childress-Beatty’s statement was not based entirely on statements about insufficient evidence.
She was concluding in this statement that a psychologist may be able to ethically recommend
that a detainee outside the criminal justice system be deprived of sleep or food for the purpose of
trying to conduct an effective interrogation. Clearly, the effect of, for instance, sleep deprivation
depends on the amount of time involved. But the fact that it might ever be considered ethical for
psychologists to recommend sleep deprivation against detainees in this situation is a very notable
ethical conclusion by the APA Ethics Office and the Ethics Committee Chair who agreed with
the recommendation to close the matter. Certainly, it is not a conclusion that we are aware APA
has ever admitted making, either in the explanation to the complainant for closing the Leso
matter or its public statements. In effect, the only way for APA to close this case using the Rules
was to call interrogation techniques “potentially ethical” in light of APA’s supposedly vague

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ethical standards, when almost all APA’s post-PENS statements stressed that its ethical standards
(including PENS, according to Behnke) were strict and would clearly prohibit such techniques.
In short, while publicly proclaiming the strictness of their rules and their eagerness to
thoroughly investigate complaints of abusive interrogations, behind closed doors, the Ethics
Office crafted rationales that stressed the vagueness of their ethical standards and the highly
restricted nature of their “investigations” in order to close complaints, all the while using a
stretched interpretation of their procedural Rules.
The ability of the Ethics Office to conduct meaningful investigations into allegations
against psychologists who allegedly participated in abusive interrogations has been further
hindered by the actions of Behnke. The evidence shows that Behnke, at best, was resistant to
proceeding with complaints against psychologists involved in interrogations, and, at worst, took
affirmative steps to avoid presenting these cases to the full Ethics Committee. For instance,
when former APA President, Ron Levant, inquired into whether an ethics investigation should be
opened against Leso based on allegations against him in the media in 2005, Behnke stated
blatantly, and falsely, that Leso was not an APA member. The ethics complaints filed against
Michael Gelles and James Mitchell illustrate this resistance even more clearly. The complaint
against Gelles alleged that he behaved unethically during a session with a Naval Petty Officer
under investigation for espionage. The email evidence shows that Behnke actively looked for
ways to avoid proceeding with the complaint and suggested ways to avoid presenting the
complaint to the full Ethics Committee. In fact, Sidley uncovered evidence that suggests that
Mel Gravitz, an influential APA member, approached Behnke and tried to dissuade him from
moving forward with the Gelles ethics complaint. This was corroborated by Behnke. And
despite telling Sidley that he was not improperly influenced by Gravitz, emails from Behnke’s
custodial files show that he actively interfered with the Ethics Office investigator’s work,
deputized himself as the investigator while she was on administrative leave, and tried to stop the
case from proceeding.
The complaint filed in 2005 against Mitchell—while he was still an APA member—was
based on allegations from news reports that psychologists, including Mitchell suggested the use
of harsh interrogation techniques during the interrogation of detainees. The evidence shows that
the complainant contacted the Ethics Office several times prior to filing her complaint against
Mitchell and that each time Behnke or an Ethics Office staff member discouraged her from filing
the complaint. When the Ethics Office received the compliant, a staff member conducted a
search to determine whether James Mitchell was a member and thus whether the office had
jurisdiction over the complaint. The search showed that three individuals named “James
Mitchell” were APA members but no steps were taken to determine whether any of the
individuals named “James Mitchell” was the James Mitchell identified in news articles. Nor
were any other investigative steps taken in connection with the complaint against Mitchell. If
additional steps had been taken, the Ethics Office would have learned that one of the three
individuals was, in fact, the James Mitchell identified in news articles—articles that reported
Mitchell had suggested the use of harsh interrogation techniques. Instead, the Ethics Office
failed to take any action on the complaint—and Mitchell resigned from APA nine months later
while the complaint was pending.

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EXECUTIVE SUMMARY

Despite his actions and resistance to proceeding with complaints against psychologists
who allegedly participated in abusive interrogations, Behnke made numerous statements touting
APA’s willingness to take action against these psychologists. The evidence shows that these
statements—strategically made in order to make it appear that APA stood ready to vigorously
investigate ethical complaints in this area and would take strong affirmative steps to dig out the
truth—were disingenuous and misleading. During the time that these ethics complaints were
pending, Behnke said:
If psychologists have engaged in any activity, and at this point the media reports
are long on hearsay and innuendo, short on facts, the [APA] wants the facts. And
when we have the facts, we will act on them. And if individuals who are members
of our association have acted inappropriately, the APA will address those very
directly and very clearly; 29
I would say that for us, the question is not whether psychologists may be
involved. We believe that there is an ethical role for psychologists to play. The
question is ‘[w]hat are the ethical boundaries within which psychologists must
remain when they are engaged in these activities?’ Certainly, if it is the case that
individuals have behaved unethically, the American Psychological Association
has an ethics committee that will respond to that situation through our process of
adjudication; 30
APA will adjudicate any allegation that an APA member has engaged in unethical
conduct. If you have information that a psychologist has engaged in torture, I ask
that you immediately bring this information to my attention; 31
[the Ethics Office] thoroughly investigate[s] the complaint under a set of
extensive procedures that apply to all complainants and to all psychologists who
are subjects of a complaint; 32
[a]ny psychologist participation in a torture interrogation is absolutely prohibited.
It makes no difference whether the psychologist’s participation is direct or
indirect, supervisory, central or peripheral: Any psychologist participation in a
torture interrogation is prohibited. 33
The reality diverged greatly from these statements. Instead of “thoroughly
investigat[ing]” allegations that member psychologists had behaved unethically or participated in
29

Psychological Warfare? A Debate on the Role of Mental Health Professionals in Military
Interrogations at Guantanamo, Abu Ghraib and Beyond, Democracy Now! (Aug. 11, 2005), available at
http://www.democracynow.org/2005/8/11/psychological_warfare_a_debate_on_the.

30

Id.

31

APA_0073156 (emphasis added).

32

APA_0093377 (emphasis added).

33

APA_0064994.

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EXECUTIVE SUMMARY

torture, Behnke failed to proceed with and actively resisted proceeding with these complaints.
The evidence shows that Behnke knew that the adjudications process was not equipped to
address ethical complaints regarding psychologists’ participation in interrogations—and that it
would not lead to any sort of meaningful or thorough investigation.
The end result of the limited nature of the ethics investigations and the Ethics Office’s
purposeful unwillingness to thoroughly investigate allegations of unethical conduct by
psychologists who participated in interrogations was that the Ethics Office prioritized the
protection of psychologists—even those who might have engaged in unethical behavior—above
the protection of the public.

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IV.

EXECUTIVE SUMMARY

ANSWERS TO THE QUESTIONS POSED BY THE CHARGE

The Board of Directors’ resolution asks us to report as to whether APA “colluded” with
government officials “to support torture.” As we embarked on our review, some APA critics
expressed concern that our charge was too narrow. These critics thought that the charge, as set
forth in the Board’s statement, would place limits on our ability to thoroughly investigate
relevant issues not specifically set forth in the charge, and was intentionally designed to lead to a
“no” answer, since in their view it would be very unlikely that one would be able to establish that
APA officials intended to help the government torture people. We understood this concern given
the language used to define our charge, and we saw how the charge could be narrowly construed.
In contrast, some of the APA officials we interviewed have stressed for us their view that
we could only reach some sort of negative finding if we concluded that APA engaged in
collusion “to support torture.” And some put definitions of “collusion” in front of us to
purportedly show its narrow contours. One APA staff member sought to narrow the scope of our
review by “confirm[ing that] the scope” of our review was defined by “three essential elements
of the review: . . . 1) collusion, that is, a mutually agree upon plan of action; 2) with the Bush
administration; and 3) the intended goal of advancing the Bush administration torture program.”
Approaching the review with these constraints would have meant that finding collusion between
APA and government officials or collusion for any goal other than intentionally advancing the
effort to torture people would have been outside the scope of our review.
The Special Committee rejected a narrow view of our scope and told us to understand our
charge broadly, so that the scope of our review included a review of the issues specifically
identified in the Board’s statement, the relevant issues in Risen’s book, and critics’ allegations
regarding the changes to APA policies and the driving forces behind those changes. The Special
Committee explained that the goal was a thorough review of these issues and all the available
evidence so that our report could set out our full understanding of what happened and why.
Nevertheless, we are called upon to answer the question whether APA colluded with
government officials to support torture, as well as three sub-questions set out in the Board’s
resolution: (1) “whether APA supported the development or implementation of enhanced
interrogation techniques that constituted torture”; (2) whether changes to Ethics Code Section
1.02 or the formation and/or the report of the PENS Task Force “were the product of collusion
with the government to support torture or intended to support torture; and (3) “whether any APA
action related to torture was improperly influenced by government-related financial
considerations,” including grants, contracts, or prescription-privileges policy for military
psychologists.
Collusion
With regard to the PENS Task Force and subsequent policy statements and decisions by
APA, there clearly was collusion between key APA officials who were acting on behalf of APA
and key DoD officials. We have seen various definitions of “collusion,” but common ones
define it as a secret agreement, understanding, or cooperation for some harmful, improper,
dishonest, or illegal purpose. (In emails to us, Behnke defined “collusion” more broadly, as a
“mutually agreed upon plan of action”.) In our description above, we have intentionally used

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terms such as coordination, collaboration, and joint venture, which we believe capture what
occurred. And we conclude that the evidence also shows that this constituted collusion.
The collusion here was, at the least, to adopt and maintain APA ethics policies that were
not more restrictive than the guidelines that key DoD officials wanted, and that were as closely
aligned as possible with DoD policies, guidelines, practices, or preferences, as articulated to
APA by these DoD officials. The existence and nature of this collaboration was kept
confidential outside of those APA officials who worked with Behnke and others on the PENS
Task Force and related matters. And this purpose could easily be described as improper or
dishonest, because it constituted the development, implementation and maintenance of APA
ethics policy not based solely on an independent judgment of what policy was best for APA, but
in very substantial part based on what policy was best for DoD.
One might say that APA was effectively making a policy judgment that what was best for
DoD was best for APA, but APA certainly did not claim that this was the policy judgment it was
making. This behind-the-scenes sacrifice of APA independence largely in order to pursue and
maintain policies that were pleasing to and requested by DoD officials constitutes collusion, in
our view.
We are asked whether this constituted collusion “to support torture.” One potentially
straightforward answer is that since the PENS report said clearly that no psychologist could
ethically be involved in torture, APA could not possibly have acted or intended to support
torture. But this is probably too simplistic an answer since, as discussed above, the artificially
narrow Justice Department definition of “torture” (known to APA and the public) meant that at
the time, a mere statement prohibiting “torture” did not necessarily prohibit acts that would
properly be considered torture at most other times.
We think the evidence clearly shows that the key APA officials acting on behalf of APA
intentionally implemented a policy that would allow DoD officials to continue to engage in their
existing practices based on the guidelines and procedures they had in place. At a minimum, this
was the purpose of the collusion. The question then arises, what did APA know about or believe
regarding DoD’s existing interrogation practices in which psychologists might be involved?
APA’s Knowledge
As summarized above and detailed further in this report, there were clear and strong
indications in front of APA officials that abusive interrogation techniques (such as stress
positions, sleep deprivation, threats, and playing on phobias) had occurred. There had even been
substantial public reporting and congressional inquiry on about the apparent (at the time)
waterboarding of two “high-value” detainees. In short, by June 2005, it would have been clear to
all well-informed observers that abusive interrogation techniques had almost certainly occurred
and that there was a substantial risk they were still occurring.
It is true that Banks and some of the other DoD psychologists on the PENS Task Force
said that psychologists were present for interrogations in order to make them safer, by using their
expertise in human behavior to watch the interrogators and stop them if they began engaging in
abusive activity as a result of so-called “behavioral drift.” Under this explanation, involving

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psychologists in interrogations would be a positive factor, and therefore the APA’s actions to
adopt and maintain the PENS Task Force report as policy could not be called an attempt to
support torture.
But Banks and the others also believed that psychologists had an important role to play in
helping to make interrogations “effective” by, among other things, making suggestions and
recommendations to the interrogators about how to proceed. Were these suggestions and
recommendations to be limited to ways of asking questions or building rapport? Not necessarily,
say Banks and the others. Stress positions or sleep deprivation, for instance, might be
appropriate techniques under some circumstances, depending on the nature of the stress positions
and sleep deprivation, they say. Banks told us that a six-week training course started in 2006 for
interrogators was needed to understand how to make these decisions, but once so trained,
interrogators and psychologists could make the decisions appropriately in a manner that was
“safe, legal, ethical and effective.” For instance, Banks told us that a “stress position” with a
detainee hanging from the ceiling with his head down would not pass this test because it would
not be safe, but a “stress position” in which a detainee was in the “push-up position” might pass
this test. The ethics guidelines in the PENS Task Force report allow a psychologist to consult
regarding an interrogation and help make it effective, although not regarding “torture or cruel,
inhuman or degrading treatment.” Yet at the time of PENS, neither Banks nor the other DoD
psychologists were willing to list stress positions or sleep deprivation as techniques that
automatically fell within those definitions. And Banks was unwilling to do so ten years later
when we spoke with him.
Thus, there were clear signs from the PENS Task Force meeting that DoD officials
believed that some of the “enhanced” interrogation techniques specifically described in the
media were not prohibited by the ethical guidelines in PENS. This in turn would have suggested
at the time that DoD may well have considered these techniques proper in some circumstances
and may well have been utilizing them. When combined with the private statements to Behnke
and others APA by CIA and DoD officials, and the widespread and powerful public reporting
about the apparent interrogation abuse, including numerous and corroborating quotes from
government officials and the Red Cross, there were very strong reasons to be concerned that
abusive interrogation techniques had occurred in the past and that there was a substantial risk
that they were continuing.
We have not seen evidence that Behnke or the other key APA officials knew definitively
that enhanced interrogation techniques were occurring at Guantanamo at the time of PENS. But
it is also clear that they made an intentional effort not to dig into these concerns and allegations
to try to determine whether they had occurred or were still occurring. Some of the key DoD
officials on the task force, principally Banks and Larry James, as well as Dunivin, were assuring
the key APA officials that past abuses had been stopped and the problem had been solved by
deploying better personnel and by ensuring that psychologists were present to stop behavioral
drift. But apart from these strong but self-serving and uncorroborated assurances, the APA
officials did not seek information to determine whether abusive techniques were still occurring
or were likely to occur in the future. Instead, they discussed internally their desire to be
“forward-looking” and supportive of military psychologists, and not to look backwards and make
accusations about psychologists. They therefore intentionally did make any effort to seek out
more information that might corroborate or contradict the DoD assurances, strategically
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emphasizing that they were unlikely to get definitive details regarding potential interrogation
abuses because the information would be classified.
“Deliberate avoidance”
In this situation in a criminal case, one would ask whether this intentional decision not to
seek more information constituted “willful blindness” or “deliberate avoidance,” such that a jury
instruction known as the “ostrich instruction” would be appropriate. A typical version of this
instruction says that a defendant acted “knowingly” if he had a strong suspicion that a certain
factual claim or statement was true and deliberately avoided learning the truth. One common
legal definition of “deliberate avoidance” in this context is “cutting off one’s curiosity through an
effort of the will.”
On the one hand, this fits the facts at hand. The approach that Behnke and Koocher
(principally) recommended and that APA took was to deliberately avoid probing or inquiring
into the widespread indications that had surfaced about harsh interrogation techniques being
conducted by the CIA and DoD, even though they knew that psychologists were involved in CIA
and DoD interrogations. And by June 2005, the media reports combined with the statements that
had been made to Behnke and others at APA by CIA and DoD officials would have made
anyone suspicious, and probably strongly suspicious, that some of these allegations were true. In
addition, if one compared the reports of harsh interrogation techniques to internationallyaccepted definitions of torture, such as in the UN Convention Against Torture, rather than the
bizarrely narrow definitions set out by the Justice Department in its memos, one would have
been suspicious that some of the harsh interrogation techniques allegedly being conducted by the
CIA and DoD constituted torture.
On the other hand, Behnke, Koocher and others at APA insisted that it would have been
impossible to determine definitively whether these allegations were true, because the information
relating to the interrogation programs and the specific interrogations was classified. It is very
likely true that information about specific interrogations was classified. However, it is notable
that APA did not make any effort in this regard. And given their contacts in the CIA and DoD,
they may well have been able to learn some significant information that would have helped them
assess the likelihood that the problem had occurred or was still occurring, and the risk that it
would occur in the future. But it is also appropriate to note that this is not the typical “deliberate
avoidance” situation in which an individual could likely have learned the relevant knowledge by
asking questions of people he had access to. Here, there was both a deliberate and strategic
attempt not to inquire, and an accurate (albeit strategically convenient) claim that gathering full
information would have been extremely difficult in light of the classified nature of the
underlying activities.
Purpose of the collusion
Thus, even after considering how the equivalent of an “ostrich instruction” might apply in
the context of this independent investigation, we think it would be difficult to conclude based on
the evidence we have seen that APA officials actually knew in 2005 that CIA or DoD
psychologists were participating in “torture”, even as properly defined. We therefore cannot
conclude that the collusion between APA officials and DoD officials was done with the actual

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intent “to support torture.” A more accurate description is that the collusion was done to support
the implementation by DoD of the interrogation techniques DoD wanted to implement, without
substantial constraints from APA; with knowledge that there likely had been abusive
interrogation techniques used and that there remained a substantial risk that without strict
constraints, such abusive interrogation techniques would continue; and with substantial
indifference to the actual facts regarding the potential for ongoing abusive interrogation
techniques. The collusion relating to PENS and the post-PENS period—and the actions in
protecting national security psychologists from disciplinary sanctio—reflects a clear intent to
take actions in order to please and curry favor with DoD.
Despite the critics’ concerns about the narrowness of the question asked, we are confident
that APA will take no satisfaction from our answer in light of our other conclusions.
The APA Board also asked three sub-questions. The first sub-question was whether APA
“supported the development or implementation of enhanced interrogation techniques that
constituted torture.” The discussion above largely answers this question. Further, the APA
officials who led the PENS Task Force process pursued an ethics policy that intentionally sought
to please DoD and not place specific ethical constraints on it beyond the general formulations
DoD was comfortable with. The position was intentionally pursued to allow DoD to have
discretion, subject to its own internal constraints, to determine what interrogation techniques to
pursue under the individual circumstances. These APA officials took this position while
intentionally avoiding an effort to gather information about whether “enhanced” interrogation
techniques were still occurring—although they would have had every reason to believe that
stress positions and sleep deprivation (among others) were still being used at the time of PENS
because of the reluctance of Banks and other DoD officials to declare them prohibited. We
would not call this “supporting the implementation of enhanced interrogation techniques,” but
we would say this was supporting the implementation by DoD of the interrogation techniques it
wanted to implement, without substantial constraints from APA, and with knowledge that there
likely had been abusive interrogation techniques used, and there remained a substantial risk that
without strict constraints, such abusive interrogation techniques would continue.
The second sub-question asks whether changes to Section 1.02 of the Ethics Code or the
formation and/or the report of the PENS Task Force were the product of collusion with the
government to support torture or intended to support torture. The answer regarding PENS was
just covered in the preceding discussion, and the answer regarding Section 1.02 is no, as set out
above.
The third sub-question was “whether any APA action related to torture was improperly
influenced by government-related financial considerations,” including grants, contracts, or
prescription-privileges policy for military psychologists. As described above, the substantial
financial benefits in the form of employment, grants and contracts that DoD provided to
psychologists around the country had a strong influence on APA’s actions relating to the PENS
Task Force (and therefore “relating to torture”), since preserving and improving APA’s
relationship with DoD (including the benefits to psychology that flowed from it) formed an
important part of the motive behind APA’s actions. We did not find that APA was motivated by
a specific contract or grant, or that APA itself actually received any substantial grants, contracts,

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or other payments from DoD during this period. The financial motivations for APA related to
the substantial benefits that flowed from DoD to the profession of psychology.
As for the prescription-privileges program, we found that APA believed that this program
had provided a very substantial benefit to psychology and APA, because obtaining prescription
privileges in order to better compete with psychiatry was one of APA’s leading priorities for
many years. DoD’s “demonstration project,” created in 1991 and in place through 1997, which
was initiated principally by Pat DeLeon (APA President in 2000) and his boss, Senator Daniel
Inouye (D-HI) and his Chief of Staff, psychologist Pat DeLeon (APA President in 2000),
allowed psychologists to have prescribing privileges in DoD and other federal locations, and
created a two-year certification program that could be recognized by a state that authorized
properly-certified psychologists to have prescription privileges like psychiatrists. Approximately
ten psychologists were trained and certified through the DoD demonstration project, including
Debra Dunivin. The demonstration project thus served a crucial unlocking function for
psychology and APA, since it established the legitimacy of a prescription-training program
outside of traditional medical school, thus providing a strong answer to the traditional critique
from psychiatrists that the only way to be trained in prescribing psychiatric medication was to
graduate from a traditional four-year medical school.
We do not believe that by 2005, APA officials were realistically seeking or expecting
anything further from DoD on the topic of prescription privileges. Nor do we believe that APA
officials actually worried that a failure to curry favor with DoD would cause DoD to reverse
course on prescription privileges by, for instance, disallowing previously-certified psychologists
from continuing to prescribe medication when they treated DoD personnel. Thus, we do not
believe that the prescription-privileges issue was a significant “financial consideration” for APA
in taking the actions it took in 2005.
Nevertheless, it is clear to us that the way in which DoD had supported psychology in
crucial ways in the prior years, including through the prescription-privileges program, played a
fundamental role in APA feeling motivated to curry favor with DoD. This was less a function of
APA seeking something concrete with regard to a specific contract or program (like prescription
privileges), but more a function of APA knowing very concretely how willing and able DoD was
to provide large-scale support to psychology as a profession—now and perhaps in the future in
unknown ways. This was support that APA did not want to risk jeopardizing by taking a position
that was at odds with what APA perceived as DoD’s clearly stated preferences within the PENS
process.

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V.

EXECUTIVE SUMMARY

CONCLUDING COMMENTS

Through their training and experience, psychologists possess a special skill regarding
how our mind and emotions work—a special skill that presumably allows psychologists to be
particularly good at healing damaged psyches. As with others who possess a special skill,
psychologists therefore have an enhanced ability to cause harm to the psyche as well.
One of the leading principles of the APA Ethics Code tells psychologists to “do no
harm.” But sometimes psychologists engage in legitimate acts that cause anxiety in a patient, or
contribute to negative lawful consequences for a criminal defendant or employee if their client is
a law enforcement agency or a company.
Our review has involved a very different situation—a psychologist using his or her
special skill to intentionally cause psychological (or physical) pain or harm to an individual who
is not the psychologist’s client, who is in custody, and who is outside the protection of the
criminal justice system.
By explicitly declaring it ethical for psychologists to be involved in interrogations of
detainees in DoD or CIA custody, while not setting strict and explicit limits on a psychologist’s
involvement in the intentional infliction of psychological or physical pain in these situations,
APA officials were intentionally setting up loose and porous constraints, not tight ones, on this
particular use of a psychologist’s skill. This was especially true in the context of the time, which
included (i) the government’s known legal contortions that sliced the definition of torture down
to a fragment, (ii) the widespread and credible claims that this kind of abuse had occurred, and
(iii) the existence of a large loophole in the Ethics Code that allowed CIA and DoD
psychologists to follow explicitly unethical orders and still be considered ethical as long as they
tried to “resolve” the conflict.
Adding to this system of porous constraints was the “third-party beneficience”
rationalization articulated by psychologists ranging from Jim Mitchell to Gerald Koocher, which
posited that harm to one individual (a detainee) must be weighed against the benefits to third
parties (the public) that would result if, for instance, information from the detainee stopped a
terrorist attack. Those taking this position would argue that strict ethical constraints on
psychologists in this situation would therefore be inappropriate. But even if, for the sake of
argument, one accepts the legitimacy of this subjective harm-balancing rationale, it is notable
that no limits whatsoever were placed on it, meaning that it provided another gaping hole in the
already porous wall of ethical and legal constraints that might have prohibited intentional harm
to detainees.
We have heard from psychologists who treat patients for a living that they feel physically
sick when they think about the involvement of psychologists intentionally using harsh
interrogation techniques. This is the perspective of psychologists who use their training and skill
to peer into the damaged and fragile psyches of their patients, to understand and empathize with
the intensity of psychological pain in an effort to heal it. The prospect of a member of their
profession using that same training and skill to intentionally cause psychological or physical
harm to a detainee sickens them. We find that perspective understandable.

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We assume that some of the detainees were hardened members of sophisticated terrorist
organizations, were well trained to resist interrogations, and had knowledge that would have
been relevant to efforts to prevent future terrorist attacks. This creates a dilemma for military
and intelligence policymakers who see this resistance as a successful barrier to obtaining
information that might protect the public.
But this is not the first time in the history of warfare that this dynamic has occurred, as
eloquently stated by an unknown military officer who was part of a DoD email exchange in
August 2003 between military intelligence officers. The email recipients were asked for
recommendations about interrogation techniques because “the gloves are coming off regarding
these detainees.” After one recipient suggested some “harsher” techniques and commented that
“fear of dogs and snakes appear to work nicely,” the unknown officer (whose name has been
redacted) wrote:
We need to take a deep breath and remember who we are. Those “gloves” are . . .
based on clearly established standards of international law to which we are
signatories and in part the originators. Those in turn derive from practices
commonly accepted as morally correct, the so-called “usages of war.” It comes
down to standards of right and wrong – something we cannot just put aside when
we find it inconvenient . . . . [W]e have taken casualties in every war we have
ever fought – that is part of the very nature of war. We also inflict casualties,
generally many more than we take. That in no way justifies letting go of our
standards. We have NEVER considered our enemies justified in doing such
things to us. . . . BOTTOM LINE: We are American soldiers, heirs of a long
tradition of staying on the high ground. We need to stay there.
This debate played out intensely within the Bush Administration. But however our
government defined and will define the nation’s position in this debate – as the decades proceed
and as administrations and foreign policies and world conflicts change – the profession of
psychology must also define for itself whether it is ethical and legitimate for psychologists to use
their special skill to intentionally inflict psychological or physical harm on individuals,
especially those in captivity outside the criminal justice system.
APA officials made such a decision in 2005. Their decision was to keep the limits on this
behavior loose and high-level. This was apparent to many from the words of the PENS report.
APA claimed that its PENS-based policy placed tight anti-torture limits on psychologists, but the
APA critics saw the statements as misleading and disingenuous.
Our investigation determined that on this point, the critics’ understanding of the PENS
report and process was correct. And our investigation determined that keeping the limits loose
and high-level was intentional, and was done in order to align APA and curry favor with the
Defense Department, to create a good PR response, and to keep the growth of psychology
unrestrained in this area.
Some of the subsequent efforts by APA representatives outside APA management to
tighten the limits, and to make this type of intentional infliction of harm more difficult for
psychologists to engage in, eventually succeeded, despite the confidential joint effort from APA

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and DoD officials to defeat these efforts. The APA ethics policy on this issue is thus very
different today than it was in 2005.
Nevertheless, when we have heard some say that APA’s current response to this issue
will help define the meaning of psychology, we find it understandable. A profession that can
salve our emotional traumas and help catch a criminal while promising to “do no harm” and to
maintain “the highest standards of professional ethics and conduct” is a profession that society
should trust and rely on. When that profession allows for the potential that psychologists will
intentionally inflict pain on an individual with no ability to resist, regardless of the individual’s
background or motives, faith in the profession can diminish quickly. This is why many within
the profession have been so upset about APA’s ethics position on this issue in 2005, its tenacious
resistance to changing it, and the lack of public statements acknowledging the true motivations
behind APA’s actions in 2005 and afterwards.
Witnesses have asked whether we would make specific recommendations at the end of
our report, but APA has asked us not to do so, a request we do not see as problematic or unusual.
In investigative-report situations, the investigators are often asked to report their conclusions
about the evidence but to leave to management the issue of how to respond to any problems
identified. It is the province of APA governance to decide on, and take responsibility for, the
proper response here.
As APA governance considers what questions to address as part of this process, we note
that our investigation has uncovered serious concerns about the ability of APA officials – and
APA itself – to act independently from the presidential administration in power, and from
powerful government agencies that provide the profession of psychology with very substantial
benefits. And this is especially true of DoD. In some ways, DoD is like a rich, powerful uncle to
APA, helping it in important ways throughout APA’s life. Acting independently of a benefactor
like this is difficult. But APA’s bylaws demand that the Association not only “advance
psychology as a . . . profession” but also “advance psychology . . . by the establishment and
maintenance of the highest standards of professional ethics and conduct.” One question that
arises from this investigation is whether APA has taken sufficient steps to ensure that, as an
organization, its commitment to the highest standards of ethical integrity is sufficiently strong
and independent of powerful government benefactors.
As members of a different profession who have observed in this investigation the
incredible intensity of the anger, personal attacks, and highly aggressive statements that have
emanated from both sides of this debate, as well as the amount of energy that has been spent on
this important issue for a decade, we hope that this report and APA’s response will over time
allow the profession as a whole to feel that APA has properly dealt with its actions in the past,
that it has properly defined the ethical obligations of psychologists on this issue for the future,
and that vigorous discussions on this topic can occur in a culture of civility and mutual respect.
We say this with tremendous respect for a profession we now know fairly well, and whose
strength and integrity is of crucial and expanding importance to the well-being of our society.
*************************************

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BACKGROUND: PSYCHOLOGISTS & NATIONAL SECURITY

BACKGROUND ON PSYCHOLOGISTS AND NATIONAL SECURITY
I.

THE EARLY HISTORY OF PSYCHOLOGY

Psychology began to be recognized as an independent scientific discipline in the 19th
century; prior to that, it was generally considered a branch of philosophy. 34 Beginning in the
1860s, German scientists including Gustav Theodor Fechner and Wilhelm Wundt, demonstrated
that the experimental scientific method could be applied to answer certain psychological
questions. 35 Courses in experimental psychology were first offered in the United States in the
1870s, and by the end of the century, several psychological research laboratories had been
established at American institutions of higher education, including Johns Hopkins and Harvard. 36
Reflecting its evolution from experimental science, psychological work in the United
States in the 19th century was primarily focused on research, not treatment. That focus was
broadened in 1896, with Lightner Witmer’s founding of the world’s first psychological clinic at
the University of Pennsylvania. 37 This clinic, which focused primarily on the treatment of
children, became the prototype for other clinics, which were primarily located in universities;
consequently, Witmer is generally recognized as the founder of clinical psychology. 38 Witmer
believed that the relatively young field of psychology could be of immediate practical benefit to
individuals, and wrote that his goal was “to make his scientific knowledge as great a benefit as
possible to humanity.” 39
II.

THE WORLD WARS
A.

World War I

On April 6, 1917, the day Congress declared war on the German Empire, APA President
Robert Yerkes convened a meeting of a group of psychologists to discuss how psychology could
assist in the war effort. 40 On April 21, a special meeting of APA’s Council established twelve
committees to assist the government in addressing psychological problems, including
committees on “the psychological examination of recruits,” “psychological problems of
incapacity, including those of shell shock,” and “recreation in the army and navy.” 41
One of the largest endeavors undertaken with the assistance of psychologists in support
of the war effort involved the administration of tests to assess potential recruits. Before and
34

Thomas C. Cadwallader, Historical Roots of the American Psychological Association, in The American
Psychological Association: A Historical Perspective, 3, 8 (1992).
35

Id. at 4.

36

Id. at 14, 18–20.

37

Paul McReynolds, Lightner Witmer: A Centennial Tribute, 51 Am. Psychologist 237, 237 (1996).

38

Id. at 237–38.

39

Paul McReynolds, Lightner Witmer: His Life and Times, 126 (2012).

40

Robert M. Yerkes, Psychology in Relation to the War, 25 Psych. Rev. 85, 85 (1918).

41

Id. at 92–93.

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during the First World War, the U.S. Army administered a battery of tests similar to the BinetSimon intelligence scale to more than 1.7 million recruits to attempt to differentiate between
potential recruits who were unsuitable for service, those who would be suitable privates, and
those who could serve as officers. 42 These tests constituted the first widespread attempt to
survey the intelligence of the population of the United States. 43 As part of the effort, the Army
established a Division of Psychology and a School for Military Psychology at its medical
officers’ training camp. 44
APA President Yerkes personally oversaw and directed the psychological examination
effort as a major in the Sanitary Corps of the U.S. Army. 45 During the war, Yerkes also served
as chairman of the Psychology Committee of the National Research Council, 46 which operated
during the war as the Department of Science and Research of the Council of National Defense
and as the Science and Research Division of the U.S. Signal Corps, and received substantial
support from the U.S. government. 47
B.

World War II

During the Second World War, the effort to assess potential recruits expanded and, by
1945, more than 13 million people had been screened. 48 Military psychologists also developed
tests that were designed to identify promising candidates for specialized jobs. One such test was
the Air-Crew Classification Test Battery, which was administered to over 600,000 men to
identify potential pilots and navigators. 49 Psychologists also provided therapeutic services to
soldiers during the war, during which over 500 psychologists served in uniform. 50
A number of prominent psychologists also developed an intensive program designed to
assess the suitability of a candidate seeking to serve in the Office of Strategic Services (“OSS”),
which had been established by President Roosevelt as the agency responsible for intelligence
collection, espionage, subversion and psychological warfare. Prior to the establishment of this
three-day assessment program, many OSS agents who deployed overseas encountered

42

Shepherd Ivory Franz, Handbook of Mental Examination Methods, 166, 169–70 (1912).

43

A. David Mangelsdorff, The Changing Face of National Security, in Psychology in the Service of
National Security, 9, 17 (2006).
44

Col. Charles Lynch, Lieut. Col. Frank W. Weed, and Loy McAfee, The Medical Department of the
United States Army in the World War, 398 (1920).
45
Robert M. Yerkes, Psychology in Relation to the War, 25 Psych. Rev. 85, 85 (1918).
46

Ernest R. Hilgard, Robert Mearns Yerkes 1876–1956, in Biographical Memoirs, 385, 391 (1965).

47

National Research Council, Organization and Members, 3 (1919).

48

A. David Mangelsdorff, The Changing Face of National Security, in Psychology in the Service of
National Security, 9, 17 (2006).
49

Id.

50

Morgan T. Sammons, Navy Clinical Psychology: A Distinguished Past and a Vibrant Future, in
Psychology in the Service of National Security, 141, 142 (2006).

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difficulties coping with the stress and hazards of their missions; after the assessment program
was established, the rate of reported problems related to stress fell dramatically. 51
Psychologists’ participation in the war effort led directly to the creation of the modern
APA. In the early years of its existence, APA was “essentially an organization of college
teachers.” 52 APA’s constitution stated that its object “was the advancement of psychology as a
science,” but made no reference to promoting psychology as a profession. 53 In 1937, certain
applied psychologists, frustrated by APA’s focus on academia and by its failure to provide
licensing and educational opportunities for applied psychologists, formed the American
Association of Applied Psychologists (“AAAP”), which threatened to divorce psychology’s
research from its practice. 54 But opportunities from the government provided by the war led to
unity among psychologists.
In 1940, after the outbreak of the war in Europe and Asia, the National Research Council
sponsored a conference on psychology and government service which was attended by
representatives from both APA and AAAP, as well as smaller organizations of psychologists. 55
Representatives at the conference unanimously decided to establish a central coordinating group
called the Emergency Committee in Psychology, which became a “virtual war cabinet for
psychology and sponsored and coordinated the varied activities of psychologists in the military
services, government agencies, and volunteer organizations,” in which members of the various
organizations of psychologists worked collaboratively in a common enterprise. 56 Robert Yerkes,
the former APA president who had taken an active role in the mobilization of psychologists
during the First World War, was a member of the Emergency Committee.
Under the Emergency Committee’s authority, Yerkes convened a week-long conference
in 1942 to discuss long-range planning in psychology. 57 The conferees proposed creating a
“central American institute of psychology . . . to provide professional services of personnel,
placement, public relations, publicity and publication” and further proposed a convention among
the psychology organizations to discuss the proposal. 58 That convention began on May 29,
1943, and by May 31, agreement had been reached to merge AAAP into APA and to redefine the
mission of APA as advancing psychology as a science “and as a means of promoting human
welfare.” 59 APA and AAAP officially approved the proposal the following year, and the new
51

Id. at 85.

52

Gilbert J. Rich, A Code of Ethics is Needed, 7 Am. Psychologist 440 (1950).

53

Dael Wolfle, The Reorganized American Psychological Association, 1 Am. Psychologist 3 (1946).

54

Division 19 History, APA, available at http://www.apadivisions.org/division-19/about/history.aspx.

55

James H. Capshew and Ernest R. Hilgard, The Power of Service: World War II and Professional
Reform in the American Psychological Association, in The American Psychological Association: A
Historical Perspective, 149, 151 (1992).
56

Id. at 151–52.

57

Id. at 154.

58

Id. at 156.

59

Id. at 166–67.

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unified APA began operations on September 6, 1945. 60 The unification proved successful, and
in the decade following the war, APA grew from approximately 4,000 members to 14,000
members. 61
In the 30 years that followed World War II, the federal government spent over $1.2
billion to fund psychological research, and much of this research was funded through the military
services. 62
III.

PSYCHOLOGY AND NATIONAL SECURITY DURING THE COLD WAR
A.

The CIA

After World War II, the OSS was disbanded and its intelligence functions were
transferred to the Central Intelligence Agency (“CIA”), created in 1947. From its inception, the
CIA took an interest in psychological research, including research into possible mind-control
techniques and methods by which deception could be detected.
In the 1930s and 1940s, the Soviet Union and its satellites staged a series of show trials in
which prominent individuals publicly confessed to improbable crimes. 63 The 1949 show trial of
Hungarian Cardinal Jozsef Mindszenty was particularly concerning to CIA leadership and
prominent psychologists working on intelligence issues. In a 1949 study for the Air Force, Yale
psychologist Irving Janis argued that the transformation of Cardinal Mindszenty, previously
known for his “intransigent moral stamina,” into a man who confessed to treason “in a kind of
monotonous mechanical chant,” was the result of “a series of electroshock convulsions . . . being
administered . . . to reduce resistance to hypnotic suggestion.” 64 Similarly, a CIA memorandum
commenting on the trial argued that “some unknown force” had been brought to bear on the
Cardinal, and suggested that hypnosis had been used on him.65 A 1950 CIA analysis of the
Soviet show trials of the 1930s concluded that the defendants’ public confessions could not have
been coerced by physical torture, and argued that they had instead been elicited using
psychosurgery, electroshock, or psychoanalytic methods. 66 In 1952, several American pilots
shot down in the Korean War and captured by Communist forces made false recorded
confessions that they had dropped bombs filled with germs on civilian populations. 67 By 1953,

60

Id. at 171.

61

Id. at 172.

62

Martin E.P. Seligman and Raymond D. Fowler, Comprehensive Soldier Fitness and the Future of
Psychology, 66 Am. Psychologist 82, 83–84 (2011).

63

John Marks, The Search for the Manchurian Candidate, 23 (1979).

64

Alfred W. McCoy, A Question of Torture, 22 (2006).

65

John Marks, The Search for the Manchurian Candidate, 23 (1979).

66

Alfred W. McCoy, A Question of Torture, 23 (2006).

67

See Robert A. Fein, U.S. Experience and Research in Educing Information: A Brief History, in Educing
Information, at xi (Intelligence Science Board2006).

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CIA Director Allen Dulles publicly warned that the Soviet Union used drugs and electroshock to
deprive individuals of the ability to state their own thoughts. 68
Concerned that Communist countries would develop a weapon that the United States
could not match, the CIA undertook a decade-long program of psychological research into
potential mind control and interrogation techniques that cost several billion dollars. 69 In his
1949 report, Janis proposed that the intelligence community undertake a “systematic
investigation” of potential mind-control techniques, including drugs and electroshock
treatments. 70 The following year, the CIA began a project to investigate “the possibility of
control of an individual by application of special interrogation techniques” and “offensive uses
of unconventional interrogation techniques, including hypnosis and drugs,” called Project
Bluebird. 71 In 1952, the CIA began another project, codenamed Artichoke, to investigate “the
application of tested psychiatric and psychological techniques including the use of hypnosis in
conjunction with drugs” to attempt to improve interrogation techniques. 72 And in 1953, the CIA
unified both projects under the aegis of a third project called MKUltra. 73
These projects funneled substantial funding to nongovernmental researchers, including
psychologists. In 1950, the CIA funded a contract for $300,000 to a department of psychology at
an unnamed university, funneling the money through the Office of Naval Research. 74 Over the
following two years, the Office of Naval Research funded 117 contracts at fifty-eight universities
under its Psychological Sciences research program. Between 1953 and 1963, the CIA
“dispensed $25 million for human experiments by 185 nongovernmental researchers at eighty
institutions, including forty-four universities and twelve hospitals,” including the Boston
Psychopathic, Mt. Sinai, and Columbia University hospitals, which conducted experiments using
LSD. 75
These contracts, which were routinely routed through other federal agencies and
organizations, funded the work of important psychologists. For instance, Professor Charles
Osgood wrote to the CIA seeking its support for his research concerning cultural differences.
Shortly thereafter, in 1959, the “Human Ecology Society,” which was a conduit of CIA funds,
provided a grant to Osgood in the amount of $192,975. These funds allowed Osgood to create

68

Alfred W. McCoy, A Question of Torture, 24 (2006).

69

Id. at 25.

70

Id. at 22.

71

Id. at 26.

72

Id. at 27.

73

Id. at 28.

74

Id. at 31.

75

Id. at 29.

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the most important work of his career, and in 1963, he was elected president of APA. 76 The
Human Ecology Society also made grants to B.F. Skinner, Carl Rogers, and Martin Orne. 77
The MKUltra program was suspended in 1963, but the information the CIA learned as
part of the program was synthesized in an interrogation handbook referred to as the “Kubark
Manual.” 78 The Kubark Manual, which has been declassified, describes itself as “based largely
upon the published results of extensive research, including scientific inquiries conducted by
specialists” and states that “sound interrogation” rests “on certain broad principles, chiefly
psychological, which are not hard to understand.” 79 It sets forth procedures to be followed when
interrogators decide that “bodily harm is to be inflicted” or “medical, chemical, or electrical
methods or materials are to be used to induce acquiescence.” 80 It includes extended discussions
of the circumstances under which infliction of pain, hypnosis, or surreptitious administration of
narcotics may assist in an interrogation. 81 The manual also quotes extensively from prominent
psychologists, including Martin Orne, Margaret Brenman, and Malcolm Meltzer, 82 and includes
an extensive bibliography, which cites numerous published and unpublished psychological
studies, including several funded by the CIA. 83
The Kubark Manual was used as the basis for an interrogation training program for CIA
agents. CIA agents taking part in the program played the roles of both interrogators and
captives, and those playing captives were subjected to harsh treatment, including sleep
deprivation, unappetizing food, isolation, mock executions, and placement in uncomfortable
physical conditions for long periods of time. 84 This program ran for approximately a decade
before ending in the mid-1970s.
The practices set forth in the Kubark Manual were also used operationally. For
approximately 30 years following the creation of the Kubark Manual, the CIA disseminated its
interrogation methods to military and police organizations around the world. 85 From 1962 to
1974, the CIA worked through the U.S. Agency for International Development to train more than

76

John Marks, The Search for the Manchurian Candidate, 168 (1979).

77

Id. at 171, 174.

78

Alfred W. McCoy, A Question of Torture, 50 (2006).

79

Kubark Counterintelligence Interrogation, 1 (July 1963), available at
http://www.uscrow.org/downloads/Survival%20Public%20Domain/Kubark_Counterintelligence_Interrog
ation_torture_manual1963.pdf.
80

Id. at 8.

81

Id. at 82–104.

82

Id. at 96–97, 101–102.

83

Id. at 110–122.

84

Alfred W. McCoy, A Question of Torture, 53 (2006).

85

Alfred W. McCoy, Cruel Science: CIA Torture and U.S. Foreign Policy, 19 New Eng. J. of Pub. Pol.
209, 221 (2005).

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one million policemen in 47 nations; after 1971, the CIA also disseminated these tactics through
the U.S. Army’s Military Advisor Program. 86
B.

The U.S. Military

Psychology had a close relationship with the military throughout the Cold War. The G.I.
Bill strengthened the profession of psychology both by expanding enrollments in institutions of
higher education, which improved employment opportunities for academic psychologists, and by
allowing some returning soldiers to train to become psychologists and join APA. 87 In 1950, the
National Science Foundation was founded as a clearinghouse for government funding of
research, and by 1952, it was funding psychological research. 88 Federal expenditures for
psychological research rose from $10.2 million in 1953 to $23.9 million in 1958, and though the
percentage of such funding provided by the military dropped throughout the period, it never fell
below approximately 25%. 89
The military also drove a major expansion in infrastructure supporting clinical
psychology. By the end of the war, the military and the Veterans Administration had created a
demand for psychologists to care for soldiers and veterans with mental and emotional problems
that was difficult for the universities then training psychologists to meet. 90 Concerned that this
demand would lead to unqualified or incompetent individuals being hired to provide mental
health services, APA embarked on a major program to ensure the quality of psychological
practice. 91 It established a program of board certification, implemented criteria for accreditation
of programs providing graduate education in psychology, and organized efforts to license
psychologists at the state level. 92
Psychology had an important influence on the development of military doctrine regarding
interrogations. Beginning in at least 1956, the military forbade the use of tactics it deemed
coercive in interrogations. 93 The primary text on interrogation for the U.S. Military during the
Cold War was the U.S. Army Field Manual 34-52, Intelligence Interrogation, which served as
the guide to intelligence interrogations for all of the armed forces until it was replaced in 2006. 94
86

Id. at 223, 228.

87

Meredith P. Crawford, Rapid Growth and Change at the American Psychological Association: 1945 to
1970, in The American Psychological Association: A Historical Perspective, 177, 208 (1992).

88

Id. at 209–210.

89

Id. at 210.

90

Id. at 221.

91

Id.

92

Id. at 221–227.

93

See Department of the Army, Field Manual 27-10, The Law of Land Warfare, 107 (1956) (“No physical
or moral coercion shall be exercised against protected persons, in particular to obtain information from
them or from third parties.”).
94

Randy Borum, Approaching Truth: Behavioral Science Lessons on Educing Information from Human
Sources, in Educing Information, 18 (Intelligence Science Board 2006); Department of the Army, Field

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The manual describes 17 interrogation techniques that remained essentially unchanged for more
than 50 years. 95 The manual incorporates psychological observations, such as that “[a]n
individual’s value system is easier to bypass immediately after undergoing a significant
traumatic experience.” 96 Noting that the “circumstances of capture are traumatic for most
sources,” the manual states that a person is vulnerable to interrogation immediately following
capture, though it cautions that “this initial vulnerability passes quickly.” 97 Thus the manual,
while forbidding the coercive interrogation tactics discussed in the Kubark Manual, incorporates
lessons learned from psychological research.
Psychologists were and are also involved in efforts to train American soldiers to resist
interrogation. Following the “confessions” of American pilots shot down in the Korean War, the
U.S. Air Force established a training program to assist soldiers captured by enemy forces to
resist harsh treatment. 98 The U.S. Navy and Army did the same in the 1960s and 1980s,
respectively. 99 These programs became known as “SERE” schools, as they teach skills related to
“survival, evasion, resistance, and escape” by training soldiers in a simulated prisoner of war
environment. Psychologists participate in the SERE schools in several capacities. They identify
which applicants are likely to exhibit difficulties under stress, consult regarding the capacity of
students who exhibit dissociation in response to the stress of training to continue with the
program, and study the impact of stress on human cognition and perception. 100
IV.

PSYCHOLOGY AND THE MILITARY AFTER THE COLD WAR
A.

Ties Between Psychologists and the Military

Following the fall of the Berlin Wall in 1989 and the dissolution of the Soviet Union in
1991, psychologists have continued to work closely with the United States military and related
agencies. As of 2011, approximately 600 clinical psychologists were employed by the Army, 101

Manual 2-22.3, Human Intelligence Collector Operations, i (2006), available at
http://armypubs.army.mil/doctrine/DR_pubs/dr_a/pdf/fm2_22x3.pdf..
95

Randy Borum, Approaching Truth: Behavioral Science Lessons on Educing Information from Human
Sources, in Educing Information, 18 (Intelligence Science Board 2006).

96

Department of the Army, Field Manual 34-52, Intelligence Interrogation at 3-1 (1992).

97

Id.

98

M. Gregg Bloche, The Hippocratic Myth, 129 (2011).

99

Distinguished Member of the Special Forces Regiment: Colonel James “Nick” Rowe, available at
http://www.soc.mil/SWCS/RegimentalHonors/_pdf/sf_rowe.pdf; Jeremy Allen, SERE School Celebrates
50 Years of Training (July 12, 2012), available at
http://www.navy.mil/submit/display.asp?story_id=68336.

100

George Steffian et al., Code of Conduct and the Psychology of Captivitiy: Training, Coping, and
Reintegration, in Military Life: Operational Stress, 83, 89 (2006).
101

Bridget Murray Law, Service, In Plain Clothes, gradPSYCH Magazine, at 22 (2011).

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while the Navy employs approximately 130. 102 The number of psychologists employed by the
Veterans Administration rose from approximately 1,500 in 2000 to nearly 3,400 in 2010, with
the largest gains coming between 2006 and 2010. 103 The Army, Navy, and Air Force sponsor
educational programs in psychology, including year-long clinical psychology internships and
postdoctoral residency programs. 104 The military also makes substantial grants for psychological
research. Between fiscal years 1994 and 2000, the U.S. Air Force, Army, and Navy spent over
one billion dollars on research in the behavioral, cognitive, and social science fields, for an
average of approximately 150 million dollars per year. 105 The funding level declined in the first
decade of the 21st century, though it remained substantial. In fiscal year 2004, total DoD
funding for behavioral and social sciences was $44.0 million; in 2005, $43.8 million; in 2006,
$41.8 million; and in 2007, $37.6 million. 106 More recently, since fiscal year 2007, more than
$730 million has been appropriated to the Department of Defense to fund research on
psychological health, post-traumatic stress disorder, and traumatic brain injury. 107 While these
research funds are distributed to researchers in a number of fields of inquiry, approximately $120
million in grants were awarded for research on the topic of behavioral, cognitive, and
psychological therapies between fiscal year 2007 and fiscal year 2011. 108
Within APA, there is a Society for Military Psychology, referred to as Division 19, which
encourages research and the application of psychological research to military problems. 109 The
Society disseminates psychological research of interest to the military community by publishing
a quarterly journal, presents annual awards to students and psychologists, and organizes
educational events. 110

102

Clinical Psychology, U.S. Navy, available at http://www.navy.com/careers/healthcare/clinicalcare/clinical-psychology.html.
103

Big Growth in the Number of VA Psychologists, American Psychological Association (June 2010),
available at http://www.apa.org/monitor/2010/06/va-psychologists.aspx.

104

Society for Military Psychology, Becoming a Military Clinical Psychologist, American Psychological
Association, available at http://www.apadivisions.org/division-19/students-careers/becoming/index.aspx.
105

See Department of Defense, Behavioral, Cognitive and Social Science Research in the Military, 34
(Aug. 1, 2000).

106

National Research Council of the National Academies, Human Behavior in Military Contexts, 11
(2008).

107

Congressionally Directed Medical Research Programs, Psychological Health/Traumatic Brain Injury,
Department of Defense, available at http://cdmrp.army.mil/phtbi/default.shtml.

108

Congressionally Directed Medical Research Programs, Search Awards and Outcomes, Department of
Defense, available at http://cdmrp.army.mil/search.aspx.
109

Society for Military Psychology, American Psychological Association, available at
http://www.apa.org/about/division/div19.aspx.
110

Id.

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B.

BACKGROUND: PSYCHOLOGISTS & NATIONAL SECURITY

APA’s 1991-2004 Ban on Military Advertising

In 1991, the APA enacted a resolution banning advertisements from the Department of
Defense and its branches in APA publications, mailings using APA mailing lists, and literature
distributed in APA meetings. 111 This ban was enacted in response to the Department of
Defense’s policy, then in effect, of refusing to admit bisexual, lesbian, or gay individuals to
military service, and was maintained after the “Don’t Ask, Don’t Tell” policy was implemented
in 1993.
Revoking the advertising ban was a long-term goal of APA’s Division 19. In January
2003, members of Division 19 submitted a resolution to the APA Council of Representatives to
rescind the ban. 112 The resolution was opposed by the APA’s Society for the Psychological
Study of Lesbian, Gay and Bisexual Issues, referred to as Division 44. 113 Despite its opposition
to rescinding the ban, Division 44 proposed that a joint task force be formed between Division
19 and Division 44 to discuss issues surrounding gay, lesbian, and bisexual people serving in the
armed forces. 114 Division 19 agreed to participate in the joint task force and recommended that
the task force discuss several issues in addition to the advertising ban, including proposals that
APA should (1) issue a statement condemning the “Don’t Ask, Don’t Tell” law as
discriminatory, (2) initiate a campaign aimed at repeal of the law, and (3) identify psychologists
who could assist DoD in developing programs to combat prejudice against gays and lesbians and
to prevent problems from arising in the event that the “Don’t Ask, Don’t Tell” law was
repealed. 115
During the initial meeting of the task force in February 2003, both sides agreed that APA
was not doing anything effective to address the issues faced by gays, lesbians, and bisexual
people in the military. 116 In January 2004, the Joint Task Force issued its final report, which
recommended that APA eliminate the prohibition on advertisements from the DoD, assess
opportunities for advocacy to eliminate discrimination in the military based on sexual
orientation, facilitate collection of data from military psychologists who are mental health
providers about the implementation of the law on homosexuality in the armed services, and
develop educational materials to improve the capacity of military psychologists to provide
effective services. 117 The report noted that Debra Dunivin attended the task force meeting and

111

Council Policy Manual, American Psychological Association, available at
http://www.apa.org/about/policy/chapter-12.aspx#defense-policy.
112

New Business for APA Council of Representatives Meeting,19 The Military Psychologist 6, 6
(Winter/Spring 2003).
113

Id.

114

Division 19 Executive Committee Meeting, March 5, 2003, 19 The Military Psychologist 2, 4–5
(Summer/Fall 2003).
115

Efforts to Rescind the APA Advertising Ban, 19 The Military Psychologist 11, 15–16 (Summer/Fall
2003).
116

Id. at 16.

117

Report of the Task Force on Sexual Orientation and Military Service, 2 (2004).

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consulted with the task force regarding the effect of the advertising ban. 118 It also noted that the
task force consulted with Stephen Behnke regarding the ethical issues that might arise for
military psychologists. 119 In July 2004, the APA Council of Representatives adopted the
resolution proposed by the Joint Task Force, thus rescinding the ban on advertisements from
DoD. 120
V.

PRESCRIPTIVE AUTHORITY

The U.S. military has provided critical support for psychologists’ efforts to obtain
authority to write prescriptions. In a 1984 speech to the Hawaii Psychological Association, thenSenator (and decorated World War II veteran) Daniel Inouye proposed that psychologists seek
prescriptive authority to address shortages in qualified prescribers of medications to individuals
who suffered from mental illness. In 1989, Congress appropriated funds for a pilot program to
train psychologists serving in the Department of Defense to prescribe medication. 121 This
program, which was called the Psychopharmacology Demonstration Project (“PDP”), was
developed with direct input from APA staff, who served on a Department of Defense panel, to
create its curriculum. 122
In 1991, the PDP began with four participants. The initial curriculum involved two years
of classroom training followed by an additional year of clinical training, though the curriculum
was subsequently modified to remove one of the years of classroom training. 123 Over the sixyear life of the program, from 1991 to 1997, ten prescribing psychologists completed the training
and were granted authority to prescribe medications. 124 Of these, four served in the Navy, three
in the Army, and three in the Air Force. 125
In 1999, the U.S. General Accounting Office (“GAO”) found that PDP graduates were
well-integrated into the Military Health Service, that they held positions of responsibility and
treated a broad spectrum of patients, carrying patient caseloads that were comparable to those of
psychiatrists. It found that most of the graduates had been granted independent status, which
allowed them to operate with only the same level of review as psychiatrists at their locations. 126
The GAO further found that the graduates were evaluated as good to excellent, both by their
clinical supervisors, and an outside panel of psychiatrists and psychologists, and found no
118

Id. at 1.

119

Id.

120

Draft Minutes of theCouncil (July 28 & 30, 2004) (on file with Sidley).

121

Robert E. McGrath, Prescriptive Authority for Psychologists, 6 Annu. Rev. Clin. Psychol. 21, 23
(2010).
122

RxP: A Chronology, American Psychological Association, available at
http://apapracticecentral.org/advocacy/authority/prescription-chronology.aspx.

123

United States General Accounting Office, Prescribing Psychologists, 3 (1999).

124

Id. at 4.

125

Id.

126

Id. at 5.

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evidence of quality problems in their credential files. 127 However, the GAO also found that the
PDP program was more costly than the Department of Defense’s traditional mix of psychiatrists
and non-prescribing psychologists, and stated that the impact of the program on combat
readiness was minimal at best. 128
Psychologists used the generally positive findings of the GAO report and other
assessments of the PDP to support efforts to obtain prescriptive authority outside the military
context, with sporadic success. In 1993, two years after the PDP began, Indiana amended its
licensing law for psychologists to allow those participating in a “federal government sponsored
training or treatment program” to prescribe medication. 129 This revision was made specifically
to allow graduates of the PDP to prescribe medications in Indiana. 130 In 1996, the APA Council
of Representatives formally adopted model legislation extending prescriptive authority to
psychologists. 131 In 1999, Guam allowed psychologists to prescribe medications in collaboration
with a physician. 132 New Mexico granted prescriptive authority to psychologists working in
collaboration with the patient’s primary care physician in 2002. 133 Louisiana followed shortly
thereafter, enacting legislation in 2004 that allows psychologists to prescribe medication after
consulting with the patient’s physician. 134 And in 2014, Illinois authorized licensed
psychologists with specialized training in psychopharmacology to prescribe certain medications
for the treatment of mental health disorders. 135 Psychologists continue to lobby state legislatures
to grant them prescriptive authority.
At the federal level, psychologists are permitted to prescribe medications in the three
branches of the military that provide healthcare services, so long as they meet the standards set
independently by each branch. 136 Military psychologists who prescribe medications include
those trained in the PDP, as well as those who participated in a civilian program. 137 The number
of military psychologists capable of prescribing medication has grown slowly since the

127

Id. at 8.

128

Id. at 9, 11.

129

Robert E. McGrath, Prescriptive Authority for Psychologists, 6 Annu. Rev. Clin. Psychol. 21, 27
(2010).
130

Id.

131

Ronald E. Fox et al., Prescriptive Authority and Psychology, 64 Am. Psychologist 257, 263 (2009).

132

Robert E. McGrath, Prescriptive Authority for Psychologists, 6 Annu. Rev. Clin. Psychol. 21, 27
(2010).
133

Id. at 29–30.

134

Id. at 29.

135

RxP: A Chronology, American Psychological Association, available at
http://apapracticecentral.org/advocacy/authority/prescription-chronology.aspx.
136

Robert E. McGrath, Prescriptive Authority for Psychologists, 6 Annu. Rev. Clin. Psychol. 21, 30
(2010).
137

Id.

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conclusion of the PDP. 138 The Public Health Service Corps and the Indian Health Service (part
of the U.S. Department of Health and Human Services) also permit psychologists to prescribe
medication, though this permission is limited to those psychologists licensed to prescribe
medications by their state of licensure. At present, therefore, only psychologists licensed in
Louisiana, New Mexico, or Illinois may prescribe medications under these agencies’ authorities.

138

Id.

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2002 ETHICS CODE REVISION

THE 2002 ETHICS CODE REVISION 139
I.

BACKGROUND
A.

Participants and Process

In 1996, the Ethics Committee appointed the Ethics Code Task Force (“ECTF”) to revise
the 1992 Ethics Code. 140 The ECTF was made up of 14 members who, according to Chair Celia
Fisher, “reflected the scientific, educational, professional, gender, ethnic, and geographic
diversity of the discipline.” 141 The ECTF members included Celia Fisher (Chair), Peter
Appleby, Bruce Bennett (APAIT liaison), Laura Brown, Linda Campbell (Council liaison), Nabil
El-Ghoroury (APAGS liaison), Jessica Henderson Daniel, Samuel Knapp, Gerald Koocher
(Board liaison), 142 Marcia Moody, Peter Nathan, Thomas Oakland, Mary Quigley (public
member), Julia Ramos-Grenier, Abigail Sivan, Steven Sparta (Ethics Committee liaison),
Elizabeth Swenson (Ethics Committee liaison), Melba Vasquez, and Brian Wilcox (Council
liaison). 143
Observers and monitors were also invited to attend and participate in ECTF meetings.
Although most ECTF participants told Sidley they were particularly attentive and felt more
strongly about the Ethics Code standards that pertained to their own area of expertise, observers
and monitors in particular attended the meetings to represent whatever group or constituency had
sent them with respect to the revision as a whole, and were present at their constituency’s own
cost. Over the six year period that the ECTF met, there were a number of monitors and
observers who attended ECTF meetings, including: Lenore Walker (Division 42), Marty
139

Throughout this section, we reference several commentary guidebooks to the Ethics Code. The first in
time is Ethics for Psychologists: A Commentary on the APA Ethics Code (1994)(hereinafter the “1992
Guide”), authored by Mathilda Canter, the 1992 Ethics Code revision Chair, Bruce Bennett, Stanley
Jones, and Thomas Nagy. It was meant to serve as “a vehicle for providing some helpful commentary …
to assist psychologists in learning and understanding the Ethics Code.”139 Celia Fisher, Chair to the 2002
revision, wrote a guidebook titled Decoding the Ethics Code: A Practical Guide for Psychologists (Jim
Brace-Thompson, et al., 2003) (hereinafter the“2002 Guide”) following the passage of the 2002 Ethics
Code. We also reference the 2010 APA Ethics Code Commentary and Case Illustrations, by Linda
Campbell, Melba Vasquez, Stephen Behnke, and Robert Kinscherff. Each of these guidebooks is helpful
not only for its general insight into ethics and the APA Ethics Code, but also as a reference for how its
authors, many of whom had a role in the 2002 Ethics Code revision, view ethics, the APA Ethics Code,
and ethical guidance that should stem from it.
140

See APA_0847536; 2002 Guide at 6.

141

2002 Guide at 6.

142

ECTF liaisons were full voting members. HC00008054 at 3. An August 8, 1997 Ethics Committee
Plan for the revision assigned liaisons voting status.

143

2002 Guide at xxv-xxvi; Minutes of the Ethics Committee Task Force (on file with Sidley). The
agenda and minutes record observers,monitors, and members attending the meetings. These names varied
over the six years, and included individuals with varying levels of participation, even those who had never
attended a meeting. We drew from Fisher’s books and the minutes in compiling a list that fairly depicts
the composition of the observer and monitor group, but we do not purport to include everyone who may
have attended a meeting over the span of the six-year revision process.

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Williams (Division 42), Jean Carter (CAPP), Brent Slife, Stuart Pizer (Division 39), Larry
Leitner, Stewart Cooper (Division 13), Deirdre Knapp (Division 14), and Richard Naugle
(Division 40). APA staff, including Stanley Jones, Deborah Felder, Dolph Printz, and, as of the
end of 2000, Stephen Behnke, also participated. Nathalie Gilfoyle served as counsel. 144
Led by Fisher, the ECTF was “committed” to making the revisions an “open” and
“collaborative” process. 145 To that end, after announcing the Code revision, the ECTF issued an
open call for comments on the “adequacy of the 1992 Ethics Code” and the content and format
of the draft Code revisions. The ECTF also sent out a survey to collect critical incidents from a
broad range of psychologists describing ethical challenges they had faced, approaches to these
challenges, and the extent to which the 1992 Ethics Code was applicable to these challenges. 146
The survey questions would also be published in the APA Monitor as an open call for comments
to the membership. 147 Comments received in between meetings were distributed among the
members as reference materials. 148 These comments were then logged into the comments
database and coded according to categories that would help set the priority for discussion at the
meetings. 149
The ECTF met twice each year from 1998 to 2001, and once in 1997 and 2002. 150
During each meeting, the ECTF reviewed the full Ethics Code and discussed comments received
in response to the critical incident survey, the open call to the membership, or, later on, to
published draft codes. 151 The task force then revised ethical standards based on the comments
received and discussion of those comments. 152 To effectuate revisions, APA staff would insert
changes into a working document at the meeting so the attendees could see and comment on
proposed changes in real time. 153 All meeting participants were given the opportunity to
comment on proposed revisions. 154 Then members voted on proposed language. The ECTF
rules for voting required that a successful vote carry two-thirds of the eligible votes cast. 155 Yet
144

HC00008054 at 4–5.

145

2002 Guide at 8; APA_0847536; HC00008054 at 3–4.

146

2002 Guide at 8.

147

Id. at 7–8.

148

See, e.g., HC00007680 at 2.

149

Id,

150

APA_0245725.

151

Fisher interview (May 6, 2015).

152

Behnke interview (May 1, 2015); El-Ghoroury interview (Apr. 14, 2015); Fisher interview (May 6,
2015); Felder interview (May 19, 2015); Jones interview (Apr. 14, 2015); Knapp interview (Apr. 10,
2015); Vasquez interview (Mar. 9, 2015).

153

Fisher interview (May 6, 2015); Jones interview (Apr. 14, 2015); Knapp interview (Apr. 10, 2015);
Koocher interview (Feb. 24, 2015); Grill interview (May 18, 2015).
154

Fisher interview (May 6, 2015); Jones interview (Apr. 14, 2015); Knapp interview (Apr. 10, 2015);
Koocher interview (Feb. 24, 2015).
155

HC00007680.

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most participants could not recall the official voting requirements because almost all of the
Ethics Code revisions were achieved by consensus, 156 which was the stated ideal way to resolve
contested issues regarding the revision. 157 When the group could not reach consensus, Fisher
tabled the conversation on that standard and took it up either later that same meeting or at the
next meeting. 158 This process resulted in members and observers feeling that they had the
opportunity to voice their opinions and that their voices were heard. Although not all ECTF
members preferred the final version of every standard, ECTF members told Sidley that they felt
the process achieved as much consensus as possible, and none could remember an instance
where someone attempted to block passage of a revision that was supported by the majority. 159
Although not all draft revisions were made public for comment, starting in 2000, drafts
were typically published in the APA Monitor and made available on the APA website. 160
Comments on the draft revisions could be submitted in hard copy or electronically. 161 At least
two members were assigned to review each comment, and Celia Fisher reviewed every comment
received. 162
Fisher was the clear leader of the ECTF: She set the agenda and led meeting discussions,
and prior to every meeting, she distributed preparatory materials to members, including her notes
and impressions regarding suggested changes. 163 Fisher reviewed every comment the ECTF
received throughout the duration of the task force. 164 Between meetings, Fisher met with
different interested constituents, such as members of Divisions 13 (Society of Consulting
Psychology), 14 (Society for Industrial and Organizational Psychology), and 42 (Psychologists
in Independent Practice), and spoke about the ECTF’s mission and progress at APA events and
to APA’s governance. 165 With the exception of Fisher, no other ECTF members or observers
played a lead role in the meetings or discussions. 166

156

Jones interview (Apr. 14, 2015); Kinscherff interview (Apr. 20, 2015); S. Knapp interview (Apr. 10,
2015).
157

HC00007680; see also Fisher interview (May 6, 2015).

158

HC00007680; Jones interview (Apr. 14, 2015); Fisher interview (May 6, 2015).

159

Jones interview (Apr. 14, 2015).

160

Fisher interview (May 6, 2015); HC00004100; APA_0847528 (although this document states that
drafts 4-6 were available for comment, documents show that the ECTF received comments to draft 3 of
the Code as well).
161

APA_0847528.

162

Fisher interview (May 6, 2015).

163

Jones interview (Apr. 14, 2015); S. Knapp interview (Apr. 10, 2015); Koocher interview (Feb. 24,
2015); Vasquez interview (Mar. 9, 2015).
164

Fisher interview (May 6, 2015); Behnke interview (May 1, 2015).

165

APA_0847528.

166

Jones interview (Apr. 14, 2015); Kinscherff interview (Apr. 20, 2015); Koocher interview (Feb. 24,
2015); Vasquez interview (Mar. 9, 2015).

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APA staff members assisted the ECTF with logistical and administrative tasks, for
example by: reserving the meeting room; stocking the room with notepads, writing implements,
and other materials; and taking notes during the meetings. 167 APA staff also participated in the
meeting discussions and answered questions. 168 Questions regarding ethics were directed to
Behnke while questions regarding adjudications were directed to Jones. 169 ECTF members told
Sidley that none of the staff members took over the process or were overbearing in commentary
or suggestions. 170 No one felt that any person or persons dominated the meetings, except for
noting that Fisher was in charge of the revision process. 171
B.

Meeting Discussions

The tone of the meetings reflected a deep concern among psychologists that the Code was
being used as a weapon against them to create liability in criminal, civil, and administrative
proceedings. 172 Clinicians, forensic psychologists, military psychologists, and correctional
psychologists were concerned with Code language that they thought could be seized on to create
unwarranted liability for psychologists in a variety of circumstances.
The ECTF debated how to address this overarching concern. Some thought the Code
should be strictly aspirational and that it should not include any enforceable, proscriptive
standards. Others thought that it should be simplified and reduced in length to make it similar to
the codes of other professional organizations (i.e., the American Psychiatric Association). 173
Still others wanted a greater level of specificity in the Code and suggested the inclusion of
scenarios and guidance based on those scenarios. 174
ECTF discussions reflected these tensions between strict ethical standards and flexibility
in the Code as well as individual psychologist’s concerns regarding their areas of practice.
Several ECTF participants told Sidley that they focused on the revisions relevant to their field or
area of practice. For example, El-Ghoroury, the American Psychological Association Graduate
Student representative member, told Sidley that he focused on the standards dealing with
students and teaching. 175 He remembered spending a great deal of time focused on those
standards and spent less time and effort on the other sections of the Code. Forensic psychologist
167

See Behnke interview (May 1, 2015); Jones interview (Apr. 14, 2015); HC00008042 at 5.

168

Behnke interview (May 1, 2015); Breckler interview (Dec. 23, 2014); Jones interview (Apr. 14, 2015);
Fisher interview (May 6, 2015); Felder interview (May 19, 2015).
169

El-Ghoroury interview (Apr. 14, 2015); Jones interview (Apr. 14, 2015).

170

Behnke interview (May 1, 2015); Kinscherff interview (Apr. 20, 2015); Koocher interview (Feb. 24,
2015).

171

Id.

172

There is further discussion on this point later in the report.

173

Behnke interview (May 1, 2015); S. Knapp interview (Apr. 10, 2015); Koocher interview (Feb. 24,
2015); Williams interview (Apr. 30, 2015).

174

Nightingale interview (June 9, 2015).

175

El-Ghoroury interview (Apr. 14, 2015).

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Ramos-Grenier told Sidley that she was quite focused on forensic psychology, and ensuring that
standards properly addressed the dilemmas forensic psychologists faced. 176 Dierdre Knapp, an
industrial organizational psychologist, said she was concerned with ensuring the Code properly
distinguished between psychologists who treated patients and those who had organizational
clients so that there were standards that provided appropriate guidance to psychologists who did
not have patients. 177 And Grill, a military psychologist, focused his attention on standards that
would address the ethical situations military psychologists faced. 178
Some ECTF members told Sidley that Bruce Bennett’s 179 interest was specifically in
reducing liability for psychologists. Bennett 180 was the Executive Director and CEO of the APA
Insurance Trust (“APAIT”). The APAIT, now called The Trust, provided insurance coverage
and risk management for psychologists, 181 and according to Fisher APAIT’s interest was in
reducing liability for psychologists. Some ECTF members told Sidley that Bennett had a lot of
information about insurance fraud issues and liability, 182 and that he brought to bear his
perspective from APAIT and engaged in ECTF discussions with an eye toward minimizing
liability for psychologists. 183 At least one person thought Bennett was at the ECTF representing
the APAIT. 184
Witnesses told Sidley that Bennett advocated for more flexibility in the Code. 185 Fisher
recalled that in discussions about flexibility in the Code, Bennett was interested in keeping the
Code from becoming so restrictive that good psychologists were made more vulnerable to
accusations of unethical behavior. 186 Yet Fisher told Sidley that this point of view was not
unique to Bennett and that the task force membership as a whole felt that way. 187 That is, ECTF
176

Ramos-Grenier interview (June 4, 2015).

177

D. Knapp interview (Apr. 10, 2015).

178

Grill interview (May 18, 2015).

179

Witnesses told Sidley that Bennett was part of the Revision Comments Subcommittee (“RCS”), the
group responsible for the 1992 revision of the Ethics Code, that he was instrumental in the drafting and
passage of the 1992 Ethics Code, and that he was one of the authors of the commentary guide to the 1992
Ethics Code. Bennett’s areas of expertise included professional liability and risk management, marketing
and promotion of psychological services, ethics, and malpractice insurance issues. He co-edited an APA
monograph titled Professional Liability and Risk Management.

180

Sidley contacted Bennett and requested an interview. Bennett declined to be interviewed. He agreed
to answer written questions, but as of the date of this report, he had not done so. As a result, the
information regarding his participation reflects what we learned from other participants and documents.
181

About the Trust, The Trust Insurance (2015), available at http://www.trustinsurance.com/about/.

182

Fisher interview (May 6, 2015).

183

Id.; Vasquez interview (Mar. 9, 2015).

184

El-Ghoroury interview (Apr. 14, 2015).

185

Bennett was an ECTF member for the full term of the revision.

186

Fisher interview (May 6, 2015); Vasquez interview (Mar. 9, 2015).

187

Fisher interview (May 6, 2015).

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members did not want the Code revisions to expose psychologists to greater liability in any areas
of practice. At least one ECTF member recalled that Bennett favored loosening the Ethics Code
standards and including the concept of “reasonableness” because it decreased psychologists’
liability. 188
Bennett’s role at APAIT created a clear conflict of interest that was not acknowledged
during the revisions process. Fisher told Sidley that, at the time, it did not occur to her that
Bennett might have a conflict in being a member of the ECTF charged with revising the Code
while working for an entity with a clear interest in limiting liability for psychologists.
Considering it in retrospect, Fisher acknowledged that Bennett’s involvement in the revisions
may have presented a conflict. 189 Fisher told Sidley that Bennett had been part of the prior
revision, and that the ECTF had been composed with an eye toward trying to include some
individuals who had historical knowledge based on their participation in the 1992 revision.
Fisher said that she did not get the impression that Bennett was trying to sway the Task
Force in order to benefit the APAIT financially by reducing its costs for insuring psychologists,
and if she had thought he was trying to do so, she would have found that unacceptable. General
Counsel Nathalie Gilfoyle told Sidley that she thought Bennett “almost certainly had an agenda”
during the ECTF meetings. She thought Bennett would have been concerned about members
being charged with ethical violations and APAIT being “on the hook” for payouts. Yet Gilfoyle
did not think Bennett’s presence presented a conflict of interest because his affiliation with
APAIT was known, he was very smart, and his contributions were respected. 190
The tensions between including flexibility in the Code and having strict standards led the
ECTF to make a concerted effort to be precise in the wording of the revised standards. 191
Specifically, they wanted to use clear, unambiguous language in the standards that would
provide psychologists with fair notice of conduct that was required and conduct that was
prohibited. 192 This concern was a driving force in determining whether or not standards were
properly “enforceable.” 193
II.

ISSUES RAISED IN ECTF DISCUSSIONS
A.

Nuremberg Defense

Subsequent documents show that during the second ECTF meeting, in March 1998, the
task force discussed Standard 8.03. The question raised was whether Standard 8.03 could be
188

Vasquez interview (Mar. 9, 2015).

189

Fisher interview (May 6, 2015).

190

Gilfoyle interview (May 18, 2015).

191

Fisher interview (May 6, 2015); S. Knapp interview (Apr. 10, 2015); Koocher interview (Feb. 26,
2015); Ramos-Grenier interview (June 4, 2015).
192

Behnke interview (May 1, 2015); Fisher interview (May 6, 2015); Gilfoyle interview (May 18, 2015);
Williams interview (Apr. 30, 2015); 2002 Guide at 8–9.
193

Behnke interview (May 1, 2015); Fisher interview (May 6, 2015); 2002 Guide at 8–9.

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construed to provide a defense for psychologists working in organizations who made attempts to
comply with the Code but were precluded from doing so by their employer—the Nuremberg
defense. 194
Standard 8.03 addressed conflicts between ethics and organizational demands and
provided that:
If the demands of an organization with which psychologists are affiliated conflict
with this Ethics Code, psychologists clarify the nature of the conflict, make
known their commitment to the Ethics Code, and to the extent feasible, seek to
resolve the conflict in a way that permits the fullest adherence to the Ethics
Code. 195
In the 1992 Code, Standard 8.03 was the standard that military and correctional
psychologists would have looked to for guidance when they faced a conflict between what was
required by the Code and what was demanded by their organizations. Yet we did not find any
evidence to suggest that the ECTF discussed the Nuremberg defense in the context of
organizational demands placed on military or correctional psychologists. Rather, the primary
concern with regard to Standard 8.03 was whether it was fair to permit psychologists working for
an organization or corporation to engage in conduct mandated by their employer without having
to face ethical ramifications, while sanctioning independently practicing psychologists that
engaged in the same conduct but were not acting pursuant to their employers’ directives.
Presumably prompted by the ECTF’s discussion on this issue, Gilfoyle sought an opinion
from outside counsel regarding 8.03. In a memorandum dated September 24, 1998, outside
counsel Kit Pierson of Heller Ehrman White & McAuliffe, provided Gilfoyle the “requested
comments on possible modification of Ethics Standard 8.03.” The memorandum summarized
Pierson’s views regarding the legal impact of revising 8.03 “so that employees could no longer
assert that they were complying with employer directives as a possible defense in ethics
matters.” 196 Pierson stated that he:
agree[d] that there are some circumstances in which the ‘Nuremberg defense’ is
clearly inappropriate (e.g., a psychologist is directed to sleep with patients). The
commentary to 8.03 in Dr. Jones’ book also recognizes this (at 158: ‘in rare
instances the entire employment situation might be so obviously illegal and
unethical as to require withdrawal’). It seems . . . there is very little argument that
8.03 must be available as an absolute defense. 197

194

HC00001888.

195

Ethical Principles of Psychologists and Code of Conduct, American Psychological Association (1992),
available at http://www.apa.org/ethics/code/code-1992.aspx [hereinafter “1992 Ethics Code”].
196

HC00003161.

197

Id.

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Gilfoyle did not recall asking Pierson about the Nuremberg defense, nor did she recall
any discussion that would have led her to ask Pierson about it. 198 When read in context with
Pierson’s other observations in the memorandum, the sentence “[i]t seems . . . there is very little
argument that 8.03 must be available as an absolute defense” seems to suggest that Pierson did
not believe 8.03 would or should ever serve as an absolute defense to illegal or unethical
conduct. Gilfoyle did not necessarily agree with Pierson on this point, but did not pursue it
further. 199 Pierson ultimately suggested that the decision of whether to revise 8.03 so that
employees could not use complying with employer directives as a defense “ought to be decided
on policy, not legal, grounds.” 200 Pierson wrote:
As a matter of policy, it seems odd to me that APA would permit a psychologist
to violate its Code without sanction if directed by an employer, but would
sanction another person engaging in the same conduct without this directive. 201
On October 15, 1998, Gilfoyle issued a legal memorandum to the ECTF analyzing the
issue. 202 In it, she stated that prior to the discussion of standard 8.03 at the previous ECTF
meeting she:
had not understood this provision to mean that a psychologist had a ‘Nuremberg’type defense that the employer or an organization with which (s)he is affiliated
required or caused the unethical behavior, after unsuccessful efforts by the
psychologist to change the organization’s unethical practice. 203
Gilfoyle told Sidley that the underlying concern regarding 8.03 was not whether it
provided a “Nuremberg defense,” but whether it was fair to permit psychologists working for an
organization or corporation to engage in certain conduct without ethical ramifications, when
independently practicing psychologists that engaged in the same conduct were open to sanction
from APA because they had not been acting pursuant to their employer’s directive. Notes from
1998 confirm that the ECTF was grappling with the notion that 8.03 could impose different
ethical standards on organizational psychologists than those to which independent practitioners
were held. 204
198

Gilfoyle interview (May 18, 2015).

199

Id.

200

HC00003161.

201

Id.

202

See HC00001888.

203

Although Pierson’s and Gilfoyle’s memoranda appear to be in response to questions that arose at a
previous ECTF meeting, the minutes for the meeting immediately prior, which took place on March 27 –
29, 1998, simply state that “[i]n executive session, legal counsel was asked to report back to the ECTF at
the October 1998 meeting regarding several questions.”
204

ECTF Meeting Agenda (Apr. 9, 1999). The notes show that the ECTF discussed the idea of imposing a
requirement upon organizational psychologists to follow the Ethics Code along with the countervailing
consideration that if the standard “does not require them to comply with the Code in the end, one rationale
for such a policy is that this might keep psychologists who are advocating for change in such settings,

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None of the ECTF participants with whom we spoke had any recollection of the
discussion that led to Pierson’s and Gilfoyle’s memoranda, or of any discussion of their findings.
In fact, ECTF participants did not recall discussing the phrase “Nuremberg defense” at any point
during the ECTF meetings.
B.

Dispensing with Informed Consent for Research

Critics have alleged that Standard 6.12, which addressed dispensing with informed
consent in research, was revised to permit the government to conduct research on detainees. We
did not find any evidence to support this allegation.
Standard 6.12, in the 1992 Ethics Code, provided that:
Before determining that planned research (such as research involving only
anonymous questionnaires, naturalistic observations, or certain kinds of archival
research) does not require the informed consent of research participants,
psychologists consider applicable regulations and institutional review board
requirements, and they consult with colleagues as appropriate. 205
The third draft revision of the Code, generated on March 21, 2000, contained the first
revisions to 6.12 and proposed revising it to:
Psychologists may dispense with informed consent only where permitted by law,
applicable regulations and institutional review board requirements or where: (1)
research is conducted in commonly accepted educational settings and involves the
study of normal educational practices, instructional strategies, or effectiveness of
or the comparison among instructional techniques, curricula, or classroom
management methods and that would not reasonably be assumed to create distress
or harm; (2) research involving only anonymous questionnaires, naturalistic
observations, or certain kinds of archival research for which participants can not
be identified and for which disclosure of the participants' responses would not
place them at risk of criminal or civil liability or be damaging to the participants'
financial standing, employability, or reputation or that would not reasonably be
assumed to create distress or harm. 206
The draft standard dispensed of informed consent where permitted by law, applicable
regulations, and institutional review board requirements and then set forth two exceptions. The

rather than forcing the psychologist’s resignation or dismissal. Whether if it does not require them to
comply with the Code in the end, it is problematic that this may mean that other psychologists (such as
private practitioners) must meet a higher standard. Whether to have no provision regarding such
matters.”
205

1992 Ethics Code.

206

HC00000106.

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language of the standard underwent some additional revisions between this first proposed change
and what eventually became the final standard, numbered 8.05 in the 2002 Code.
In its final form, Standard 8.05 was more complex than its predecessor and established
two, overarching categories of instances when psychologists were not required to obtain
informed consent for research. Standard 8.05 provided that:
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 particpants’ employability and
confidentiality is protected or (2) where otherwise permitted by law or federal or
institutional regulations.
Category (1) is subdivided into three lettered subcategories that identify certain kinds of
research, such as the study of educational practices or job effectiveness, naturalistic observations,
and archival research, that may be conducted without informed consent. According to an Ethics
Code commentary authored by Behnke, Campbell, Kinscherff, and Vasquez, allowing these
subcategories of research to proceed without informed consent is based on the premise that
“[w]hen data collection does not jeopardize [] protections” put in place to prevent “harm,
exploitation, distress and adverse consequences of psychological activities” to individuals,
psychologists may “use their professional judgment in determining the appropriate consent status
of their proposed research.” 207 The commentary explains that “confidentiality is maintained and
secured in all cases when consent is not sought,” although notably that restriction only applies to
Category (1). In Fisher’s Guide to the Ethics Code, she wrote that the three lettered
subcategories were also all “predicated on the condition that the research will not create distress
or harm.” 208 Therefore, according to the Ethics Code, if research within any of the lettered
subcategories would “reasonably be assumed to create distress or harm,” then psychologists may
not dispense with the requirement to obtain informed consent.
Yet Category (2) allows dispensing with informed consent simply “where otherwise
permitted by law or federal or institutional regulations”—and is not subject to the prerequisite
that the research not reasonably be assumed to create distress or harm. Nor is it subject to the
requirement that confidentiality be maintained and secured in all cases where consent is not
sought.
Critics allege that the changes to Standard 6.12 did away with the basic protections
regarding informed consent as outlined in the Nuremberg Code. The Nuremberg Code “was an
207

2010 Guide at 269.

208

2002 Guide at 157.

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attempt to formulate a universal natural law standard for human experimentation.” 209
Specifically, during the Nuremberg trials following World War II, one trial, dubbed the “Medical
Case,” focused on the physicians’ participation. The judgment contained a 10-point code for
legitimate human research and experimentation now known as the Nuremberg Code. The first of
the 10 points stated that the subject’s informed consent was absolutely essential, and explained
informed consent more fully, to include factors such as the subject having free power of choice,
not being subjected to coercion or force, and having enough knowledge and information to make
an enlightened choice. 210
Critics alleged that by creating a specific and otherwise unrestricted exception to
obtaining informed consent, as articulated by Category (2), the Ethics Code allowed
psychologists to obviate the basic protections of the Nuremberg Code if and when the
government permitted it. The critics’ concern was that this exception could allow psychologists
to participate with impunity in detainee interrogations if their involvement was deemed to be
research and if the government determined informed consent from detainees was not required. 211
The outside experts Sidley spoke to agreed that the blanket exception for dispensing with
informed consent simply when permitted by law was problematic. 212 The experts generally,
acknowledged that there were certain circumstances where informed consent was not required,
including in situations where the government permits, for example, the gathering of personal
health information. 213 That said, Nora Sveaass, Associate Professor of Psychology at the
University of Oslo who served on the UN Committee Against Torture from 2006 through 2013,
told Sidley that exceptions such as the ones outlined in Category (1) of 8.05 should be linked to
specific concerns in order to highlight potentially problematic situations. 214 Janel Gauthier,
President of the International Association of Applied Psychology and primary drafter of the
“Universal Declaration of Ethical Principles for Psychologists,” agreed that “examples of the
types of research for which consent . . . may not be needed . . . is helpful. However, it is empty if
such examples are given without being put into a context of underlying moral considerations and
the need for case-by-case decision making.” 215 But all expressed concern that Category (2) had
no limiting language associated with it. 216 Sveaass noted that it was “stated as a general
209

George Annas and Michael Grodin, The Nazi Doctors and the Nuremberg Code: Human Rights in
Human Experimentation, 3 (1992).
210

The Nuremberg Code, U.S. Department of Health & Human Services, available at
http://www.hhs.gov/ohrp/archive/nurcode.html.
211

See below for further discussion on government research.

212

Reverby interview (June 24, 2015). Susan Reverby is the Marion Butler McLean Professor in the
History of Ideas at Wellesley College who authored Examining Tuskegee: The Infamous Syphilis Study
and Its Legacy. See also Email from Sveaass to Sidley (June 24, 2015); Email from Gauthier to Sidley
(June 25, 2015).
213

Reverby interview (June 24, 2015); Email from Gauthier to Sidley (June 25, 2015).

214

Email from Sveaass to Sidley (June 24, 2015).

215

Email from Gauthier to Sidley (June 25, 2015).

216

Reverby interview (June 24, 2015); Email from Sveaass to Sidley (June 24, 2015); Email from
Gauthier to Sidley (June 25, 2015).

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permission if [the] state or institution so decide,” which was problematic. 217 Gauthier pointed
out that “permitted by law does not make something ethically justifiable” and that 8.05 “(perhaps
unwittingly) gives the impression that, if dispensing with consent is ‘permitted’ by law, no
further considerations are needed.” 218 Sveaass asked why the Standard did not address potential
dilemmas, or at least cross-reference to standards that address dilemmas, including 1.02. 219
Sveaass summed up the concern, asking about situations where “the research may be highly
controversial and unethical but despite this ordered by the state. Then what?” 220
Although critics have suggested that the change to Standard 6.12 may have been
prompted by the events of 9/11, the complained-of language was drafted prior to 9/11. Sidley
asked Fisher about the post-9/11 change of the phrase to “institutional regulations,” the purpose
of that change, and what “institutional regulations” meant. Fisher responded she did not recall
any specific reasons for those changes, and that she was not certain what “institutional
regulations” meant. 221 She believed the ECTF probably thought “institutional review board
requirements” was redundant because it would already be covered under “federal regulations,”
but she conceded that “institutional regulations” was not a good phrase to use because it was not
clear what the phrase meant, it was not otherwise defined in the Code, and therefore gave no
proper notice about what it permitted. 222
Few participants had a strong recollection of discussions regarding research or informed
consent as it related to research—or the reasons for the revision. Fisher stated that the
motivation for the changes to 8.05 were to bring it in line with federal regulations that were
much more specific than what 6.12 stated, which she described as an “afterthought” in the 1992
Code that said almost nothing. Fisher thought Category (1) created a more protective standard,
since none of the identified research could be done without informed consent if it would create
distress or harm. She stated that no one was that concerned with Category (2), and that the intent
in including it was to catch up to federal regulations, especially dealing with HIPAA. In Fisher’s
Guide to the Ethics Code, the discussion regarding Category (2) focuses solely on situations
under which Protected Health Information (“PHI”) can be used without client/patient
authorization. 223
Because the critics’ concerns regarding 8.05 focused on the usurping of subjects’
informed consent, Sidley also looked at other standards in the 2002 Code dealing with informed
consent, including 3.10 “Informed Consent,” 9.03 “Informed Consent in Assessments,” and
10.01 “Informed Consent to Therapy.” Both 9.03 and 10.01 require obtaining informed consent
pursuant to the terms in 3.10. In relevant part, 3.10 requires psychologists to obtain informed
consent for various activities “except when conducting such activities without consent is
217

Email from Sveaass to Sidley (June 24, 2015).

218

Email from Gauthier to Sidley (June 25, 2015).

219

Email from Sveaass to Sidley (June 24, 2015).

220

Id.

221

Fisher interview (May 6, 2015).

222

Id.
2002 Guide at 160–162.

223

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mandated by law or governmental regulation or as otherwise provided in this Ethics Code.”
Standard 9.03 also contains an explicit exception to obtaining informed consent when “testing is
mandated by law or governmental regulations.” In short, it appears that the Ethics Code’s
standards dealing with obtaining informed consent permitted psychologists to dispense with that
requirement if a law or regulation permitted or mandated it. This aspect of each of the standards
was present in the Code before September 11, 2001.
We did not see any evidence to suggest that these standards were changed after
September 11, 2001 to accommodate any particular agenda. Nor was there evidence that any
national security or response to terrorism discussion occurred in relation to any of these
standards. 224
C.

Creation of Police & Public Safety Psychology, Correctional Psychology, and
Military Psychology Seat

In 1999, Edmund J. Nightingale was elected to become Council representative for
Division 18, Psychologists in Public Service. 225 Division 18 represented psychologists working
in the Veterans Administration (“VA”), the criminal justice system, police and public safety,
state mental health systems, the Indian Health Service, and other similar settings. 226 When he
joined Council, Nightingale learned about the Ethics Code revision and thought that public
service, law enforcement, and correctional psychologists, who faced ethical dilemmas unlike
those any psychologists faced in private practice, lacked representation on the Task Force. 227
Nightingale had worked in VA psychology for his entire career and knew that VA psychologists
faced different challenges than private practitioners. Moreover, based on Nightingale’s
knowledge of work done by psychologists in law enforcement (i.e., counseling officers with
work issues because of family situations, assisting in hostage negotiations, and counseling on
police interrogations), he thought these psychologists in particular, and public service
psychologists as a group, should have more guidance from the Code—and that a representative
on the ECTF from this group could further that end. 228 Therefore, Nightingale moved to add a
seat on the ECTF for someone to represent public service psychologists.
Nightingale recalled that the request for the additional ECTF seat was met with general
resistance. 229 Nightingale speculated that the resistance may have been due to a number of
issues including that the revision process was well underway and the seat would create additional

224

In fact, the language in 3.10 excepting the need to obtain informed consent if non-obtainment was
mandated or prescribed by law first appeared in the November 1999 draft revision. HC00000534;
HC00003327.
225

Nightingale interview (June 9, 2015).

226

Id.; Psychologists in Public Service, American Psychological Association, available at
http://www.apa.org/about/division/div18.aspx.
227

Nightingale interview (June 9, 2015).

228

Id.

229

Id.

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expense that would need to be budgeted to ECTF. 230 Nightingale also thought there was
pushback because he was new to Council, and as a relatively young, brash member was
“elbow[ing] [his] way” in and bucking typical protocol with his request. 231 Nightingale
remembered there was “some annoyance” at his proposal, although he could not identify specific
people, with one exception: Nightingale recalled a pointed exchange with Koocher that was
probably related to this issue, although Nightingale conceded it was long ago, and the dispute
could have been about something else. Nightingale asked Sidley if Koocher was on the ECTF
and when we confirmed he was a member, Nightingale said it made sense that Koocher, as a
member, would be upset about a newcomer intervening in the ECTF process. 232
Nightingale said that Pat DeLeon (1999 APA president-elect and 2000 president) shared
the view that ECTF should have a seat to represent public service psychologists and counseled
Nightingale to advocate for the additional seat not only on behalf of Division 18, but on behalf of
Division 19 as well. 233 According to Nightingale, DeLeon advised him that APA usually worked
best in coalitions and that joining forces with Division 19, a group that faced similar ethical
dilemmas to members of Division 18, would make for a better case to add a seat to the ECTF.
Nightingale stated that DeLeon “knew how things worked” because he had been involved in
APA governance for a long time and agreed to advocate for the additional seat on behalf of both
divisions.234
Both the Ethics Committee and Board recommended that Council reject the resolution. 235
Despite the recommendations of the Board and Ethics Committee, Nightingale made an
impassioned plea at the Council meeting to add the seat, and succeeded in garnering enough
support to do so. 236 In August 2000, Council voted to approve a resolution for funding one
additional seat on the ECTF to represent Police & Public Safety Psychology and Correctional
Psychology (Division 18), and Military Psychology (Division 19). 237 The approved resolution
stated that the Ethics Committee had no representation from these groups and no “demonstrated
expertise in these areas of endeavor” and that:
[T]he current Ethical Principles of Psychologists and Code of Conduct [are] silent
on many critical issues faced by psychologists who work in these areas and look
to the principles and code and to the Ethics Committee for guidance; and
[T]he issues they face include consultations with immediate life or death
outcomes (hostage negotiations, timing of interventions in the presence of SWAT
230

Id.

231

Id.

232

Id.

233

Id.

234

Id.

235

HC00007163; Approved Minutes of the Board (June 9–11, 2000) (on file with Sidley); Nightingale
interview (June 9, 2015).
236
Nightingale interview (June 9, 2015).
237

Approved Minutes of the Council (Aug. 3 & 6, 2000) (on file with Sidley); APA_0158056.

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Teams, dual roles by regulation in prison riot situations) coaching of interrogators
during investigative interrogation, development of profiles for investigative
purposes, and special situations involving confidentiality and prescribed dual
roles (working with military clients and their dependents). 238
The new seat was set aside for a member from Division 18 or 19, and the presidents of
those divisions were asked to submit nominations. 239 Randy Taylor, President of Division 18,
nominated Gilbert Sanders and Steve Norton. Sanders submitted his resume, which showed he
was a Captain for the United States Public Health Services and a Counseling Psychologist for the
Immigration and Naturalization Services (“INS”), and provided a range of mental health services
to INS detainees. 240 He was also a Captain with over 20 years in the military and 10 years in
correctional psychology work. 241 Norton was a clinical psychologist with areas of interest in
forensic and correctional psychology, and was a member of Division 18. 242 Janice Laurence,
President of Division 19, nominated Robert Nichols. 243 Nichols was a retired Army Colonel
who had worked in clinical and non-clinical settings in the military and civilian settings. 244 The
ECTF received three other nominations: Dennis Grill, nominated by task force chair Fisher and
task force member Bennett; and Jeffrey Younggren and Karl Moe, both nominated by
Koocher. 245 At the time, Younggren was a Colonel in the U.S. Army Reserve, a clinical and
forensic psychologist in private practice, and a consultant in risk management to the APAIT. 246
Moe was a member of Division 19 and was in the Air Force. 247 Nightingale confirmed he did
not submit, nor was he asked to submit, a nominee. 248
Grill, who belonged to Division 19, was selected to fill the seat. Documents do not
clearly show how or why Grill was picked above other nominees, although internal APA staff
correspondence indicates he was Fisher’s choice. 249 In an October 3, 2000 email, Gilfoyle told
DeLeon that “Celia strongly wanted Dennis Grill.” 250 And in an October 4, 2000 email to

238

Approved Minutes of the Council (Aug. 3 & 6, 2000) (on file with Sidley).

239

See HC00007082; Approved Minutes of the Council (Aug. 3 & 6, 2000) (on file with Sidley).

240

HC00007120.

241

APA_0157701.

242

APA Membership Directory Information for Steven C. Norton (on file with Sidley).

243

Id.

244

APA_0847709.

245

APA_0157701.

246

APA Membership Directory Information for Jeffrey Nels Younggren (on file with Sidley); Jeff N.
Younggren resume, available at http://jeffreyyounggren.com/resume/.
247

APA Membership Directory Information for Karl Owen Moe (on file with Sidley).

248

Nightingale interview (June 9, 2015).

249

See APA0162593; APA0162588.

250

APA0162593.

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Koocher, with a copy to Kinscherff, Gilfoyle stated that perhaps they could explain why the
Ethics Committee “went with the nominee of the ECTF chair.” 251
Fisher said she did not remember nominating Grill and that he was nominated by the
divisions, not by the ECTF. 252 When asked whether Grill was her nominee, Fisher did not
remember ever expressing any preference for Grill. 253 Despite nominating him, Fisher stated she
would have no reason to favor Grill over any other candidate. 254 The only preference Fisher
recalled was not wanting to give the seat to Younggren based on past interactions with him. 255
Otherwise, she could recall no basis for distinguishing among the nominees and speculated that
if she did express a preference for Grill, it may have been based on having met Grill once or
twice in the past and not having any familiarity with most other nominees. 256
After learning of Grill’s appointment to the ECTF, Sanders, who was not chosen, sent a
fax to Kinscherff complaining about Grill’s selection because Grill only had military experience
whereas Sanders had both military and correctional settings experience. 257 Because Grill lacked
experience in correctional psychology, Sanders asked that “the Ethics Committee be informed
that several critical factors may not be discussed that correctional psychologists feel [are] urgent
in any revision of the APA Code of Ethics.” 258 Nightingale was equally displeased with the
choice, and in an email to DeLeon said:
It just goes to show that you can win one on the floor or lose it [in] the cloak
rooms . . . Dennis Grill may be a fine nominee, but he has no background in
Police/correctional issues. I had thought the process was one wherein the division
nominees would become the selection pool from which the committee would
make a selection. I was wrong. The gods were offended and they did what they
pleased! 259
In an October 3, 2000 email chain between Gilfoyle and then-APA President DeLeon,
DeLeon counseled Gilfoyle to communicate directly with an unnamed male individual who “got
council to override everyone’s recommendations” but who DeLeon and Gilfoyle expected not to
be pleased with Grill’s selection for the seat. 260 The email chain does not identify the “he” to
whom they are referring, but presumably they are talking about Nightingale, who had moved for
251

APA0162588.

252

Fisher interview (May 6, 2015).

253

Id.

254

Id.

255

Id.

256

Id.

257

APA_0157701.

258

Id. (emphasis in original).

259

APA_0162588.

260

APA_0168205.

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the seat in Council. Nightingale confirmed to Sidley that he had been upset someone from
military psychology was appointed to the seat, but that he thought Grill was selected due to the
politics of his having moved for the seat. Nightingale took the whole episode as a “lesson
learned” in diplomacy. 261
Although he was upset with Grill’s selection to the ECTF, Nightingale was able to
communicate his concerns about the Ethics Code by making public comments and reaching out
to Fisher to express his concerns and suggestions. 262 Fisher was responsive to Nightingale’s
correspondence, and at one point he even commented: “What a wonderfully complete reply.
Thank you for your efforts on behalf of the revision, but more especially for the thoughtfulness
of your reply.” 263 It therefore does not appear that Nightingale was sidelined in his ability to
comment or provide insight to the revision process.
Grill did not know why he was selected to fill the seat—he did not volunteer his name for
consideration and did not know who did. 264 He speculated that the person most likely to have
suggested his name would have been one of the other nominees—Younggren—whom Grill had
known for “a very long time” and who had tried to involved Grill in ethics issues. 265 Although
Grill attended ECTF meetings, Fisher and other members do not remember him being
particularly vocal. 266
It is not clear why Grill was selected over other nominees, but it is undisputed that the
addition of the seat and Grill’s appointment predated the attacks of September 11, 2001 and were
not motivated by a response to those events. Indeed, the addition of a seat to represent public
service and military psychologists was controversial and the decision was made by Council
against recommendations by the Board and Ethics Committee.
D.

Conflict Between Ethics and Law – Standard 1.02

The first proposed changes to Standard 1.02 appeared in the fourth draft of the revised
Code, generated in October 2000 267—which was the first draft generated after Grill’s
appointment to the ECTF. The proposed changes to Standard 1.02 expanded the Standard to
address not only conflicts between the Code and the law but also conflicts between the Code and
“regulations, or other governing legal authority.” In addition, the revisions permitted
psychologists to adhere to the requirements of “the law, regulations, or other governing legal

261

Nightingale interview (June 9, 2015).

262

Nightingale Document Regarding ECTF Comments (on file with Sidley); APA_0030779;
APA_0036265.
263

APA_0030515.

264

Grill interview (May 23, 2015).

265

Id.

266

Fisher interview (May 6, 2015); D. Knapp interview (Apr. 10, 2015); El-Ghoroury interview (Apr. 14,
2015).
267

HC00005000.

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authority” if the conflict was unresolvable. The comparison below shows Standard 1.02 of the
1992 Code against the proposed changes.

The proposed language was ultimately incorporated into Standard 1.02 in the 2002 Code,
with one additional change—the deletion of the phrase “in a responsible manner,” which was
removed in the June 2001 draft. Critics allege that the revised language, especially the addition
of the second sentence, made it permissible under the Code for a psychologist to abdicate his or
her ethical obligations and follow a military or correctional facility order even when the order
conflicted with the Code. As long as a psychologist made known his or her commitment to the
Code and took some steps to resolve the conflict, the psychologist could follow the order and not
face ethical sanctions. Perhaps the strongest criticism of this revision is that it gave
psychologists cover to participate in or otherwise consult on interrogations involving enhanced
techniques that were tantamount to torture.
While the revisions to Standard 1.02 may have had the effect of providing cover for
these psychologists, we found no indication that the revisions were motivated by the
government’s interrogation program, or by a desire to protect psychologists who were involved
in detainee interrogations, let alone abusive or coercive interrogations. Rather, we found that
changes to Standard 1.02 were motivated by a desire to help: 1) clinicians and forensic
psychologists caught between court orders and ethical obligations, and 2) military and
correctional psychologists who worried about ethical conflicts with military or correctional
facility orders. Specifically, psychologists were concerned that the term “law” as used in
Standard 1.02 was too narrow to cover certain mandates such as subpoenas, court orders, or law
enforcement or military orders, and that the Code lacked clarity with regard to what
psychologists were required or permitted to do if they were unable to resolve a conflict between
the law and the Code.
Fisher recalled these concerns and explained that silence in the 1992 Ethics Code on what
actions psychologists could or should take when faced with a conflict between the Code and the
law created confusion and anxiety about whether psychologists who attempted but failed to
resolve the conflict had met their ethical obligations, or whether they were required to lose their
jobs or face other consequences in order to comply with the Ethics Code. 268 Fisher said that
permitting psychologists to “adhere to the requirements of the law, regulations, or other
governing legal authority” was meant to make clear that the Code did not require psychologists
to quit their jobs, go to jail, or face court martial in order to comply with the Ethics Code.269
268

Fisher interview (May 6, 2015).

269

Id.

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Comments to the revised draft Code support this statement and indicate that some psychologists
were “glad to see an explicit and clear statement about what one’s practice should be when the
law and ethics are in conflict.” 270 Another comment indicated that “[t]he addition that specifies
protocol for dealing with conflict between law and ethics was of critical importance. Clarifying
this possibly frequent quandry [sic] helps in creating a more applicable set of ethical codes.” 271
1.

Concerns from correctional and military psychologists

Fisher’s notes reflect that the participants were thinking about the military in the context
of 1.02 as early as 1999. Specifically, comments to the 1999 draft standard 1.02 had a
typewritten entry of “[n]o changes recommended” and the following handwritten comment: “EC
Statement: shd military be referenced?” 272 “EC” is a possible reference to the Ethics Committee,
but the document contains no other comments or references for the standard. This was the
earliest reference to the military or correctional psychologists contained in the draft revisions, but
it is clear that correctional and military psychologists wanted to ensure that Standard 1.02
applied to correctional facility and military orders. 273
Grill, the task force member representing law enforcement, correctional, public service,
and military psychologists, told Sidley that his principal focus as a task force member was to
enact changes to standard 1.02 that would ensure military orders were covered as a potential
conflicting authority under 1.02 274 — and that he advocated for this change during the revisions
process. 275 Grill stated that, for example, the regulations of the Army, the VA, or the San
Antonio Police Department are not law, but they are still directives for those who work for those
organizations. 276 Therefore, the language “regulations or other governing legal authority” was
added to capture, among other things, military regulations that are not law but are directives. 277
For Grill, it was important to address the conflicts that military psychologists faced on a routine
basis when confronted with military procedures and regulations that were not consistent with
Ethics Code requirements. 278 A principal concern for Grill was the issue of non-confidentiality
for military patients seen by military psychologists. 279 280 If a military psychologist assessed and
270

ECTF Reference Book Part 9, comment 313 (Laxton) (June 22-24, 2001) (on file with Sidley).

271

Id. at comment 375 (Paez).

272

ECTF Meeting Agenda (Apr. 9, 1999) (on file with Sidley).

273

Grill interview (May 23, 2015); Nightingale interview (June 9, 2015); Fisher Notes (undated) (on file
with Sidley).
274

Grill interview (May 23, 2015).

275

Id.

276

Id.

277

Id.

278

Id.

279

Id.

280

At least one other comment from a military psychologist raised the issue of confidentiality in the
military setting, although not specifically tied to any standard: in comments gathered for review at the
April, 1999 meeting, Patrick Harrington suggested “explicit wording in the ethical principles regarding

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treated someone in the military, the psychologist was required to inform superiors of any
treatment prescribed or concerns stemming from information gleaned during therapy. Military
patients, therefore, were not afforded confidentiality over their assessment and treatment
information. 281
In the early 1990s, Grill and others, including Younggren, worked on a form to explain
the limits of treatment confidentiality to military personnel. 282 Grill said that the form tried to
inform the soldier as much as possible about the psychologists’ limits on maintaining
confidentiality and then the soldier could determine whether to continue with treatment. Despite
that, Grill was still concerned about confidentiality and other conflicts between military
regulations and ethical requirements and thought that 1.02 should provide military psychologists
with guidance for those situations. 283 Sidley asked Grill why his concerns were different than
those of other participants representing organizational psychology in the ECTF. Grill noted that
organizational psychologists had clients not patients, and for Grill it was important to address
ethical conflicts in the context of treating patients. 284
Grill said that no one identified Standard 1.02 for him as one that needed to be changed
when he was asked to participate in the ECTF, but that it was clear to him that it was a principal
area of concern for his constituency. 285 He had grappled with the question of conflict between
military requirements and the law while he practiced, and had discussed it with Younggren. So
Grill knew when he started on the ECTF that 1.02 was a relevant standard for his concerns. 286
Members of Division 18, Psychologists in Public Service, lobbied for the change to 1.02
as well. Gil Sanders, 287 the Chair of the Criminal Justice (Corrections) Section of Division 18,
communicated with Fisher about the division’s concerns with the scope of 1.02. Specifically, he
and Fisher discussed three standards: conflict between ethics and law, 288 multiple relationships,

confidentiality for both civilian and active duty patients seen in military healthcare settings.” ECTF
Reference Booklet Part 5, comment 116 (Harrington) (Apr. 9-11, 1999) (on file with Sidley).
281

Grill interview (May 23, 2015); ECTF Reference Booklet Part 5, comment 116 (Harrington) (April 911, 1999) (on file with Sidley).
282

Grill interview (May 23, 2015).

283

Id.

284

Id.

285

Id.

286

Id.

287

Sanders questioned Grill’s appointment to the ECTF as the representative for law enforcement,
correctional, public service, and military psychologists.
288

At that time, the standard addressing conflicts between ethics and law was temporarily numbered 1.03
because as of draft 1 of the revision, generated in April 1999, Standard 8.01, addressing familiarity with
the Ethics Code, was moved to 1.02, shifting the conflict standard to 1.03.

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and dispensing with informed consent for research. 289 Regarding the conflict standard, Fisher’s
notes about their conversation stated that:
Psychologists in correctional facilities are often caught between conflicting
demands of their facilities and the ethics code. However, [the conflict standard]
may not be adequate because ‘law’ is vague in these facilities and are often
interpreted through ‘regulations.’ Would including ‘government regulations’ in
[the conflict standard] address this issue? 290
Although it is not possible to tell from the note if others had also proposed the language,
Fisher’s note shows that Sanders suggested the “government regulations” language that was
eventually incorporated into the standard. Fisher’s notes on the comments to draft 3 of the Code,
which was generated in March 2000, also speak to this question, clearly attributing the
suggestion of the phrase “law, regulations, or other governing legal authority” to Division 18. 291
Fisher agreed with the overall concerns of military and correctional psychologists that the
scope of 1.02 in the 1992 Code did not capture conflicts arising from directives in correctional
and military settings. 292 Fisher recalled that “one of the lawyers” at APA, perhaps Nathalie
Gilfoyle, had determined that “law” did not include orders issued by supervisors or superiors to
military and correctional psychologists. 293 Fisher thought the revised, more expansive language
would therefore ensure 1.02 covered directives to military and correctional psychologists, who
faced legal or quasi-legal consequences from disobeying orders from their superiors. More
specifically, Fisher recognized the “stakes were higher” for military psychologists, who could
face court martial for disobeying a direct order. 294
The new 1.02 language made explicit that it captured mandates other than federal or state
law and therefore clarified that military and correctional psychologists should refer to 1.02 to
guide them when faced with conflicts between their employer’s directives and ethics. Before the
revisions to Standard 1.02, correctional and military psychologists would have looked to 8.03 in
289

Sanders’s comment on dispensing with informed consent for research was not relevant to the issues in
this investigation.
290

Fisher Notes (undated) (on file with Sidley).

291

See APA Ethics Code, Draft 3 Comments (on file with Sidley).

292

Fisher interview (May 6, 2015).

293

In discussions with the investigative team, Gilfoyle did not think she would have interpreted “law” so
narrowly as to have excluded judicial or military orders, but she did recall others’ concern about ensuring
that the standard cover, for example, court orders.
294

Harrington’s comment, up for consideration in April 1999, pointed out that, as to the confidentiality
issue he raised, “[a] potential problem lies in the different military laws that apply (e.g., commanding
officer ‘orders’ you to give information and if you don’t obey you could have charges brought against
you).” ECTF Reference Booklet Part 5, comment 166 (Harrington) (April 9-11, 1999) (on file with
Sidley). As a reviewer for this comment, Koocher determined that this issue was effectively addressed in
the current ethics code and added that it had been written about extensively, therefore no action in the
current Code was needed. The other reviewer, Swenson, noted that the issue was already under
consideration.

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the 1992 Code which addressed “Conflicts Between Ethics and Organizational Demands” (1.03
in the 2002 Code). Standard 8.03 required that:
If the demands of an organization with which psychologists are affiliated conflict
with this Ethics Code, psychologists clarify the nature of the conflict, make
known their commitment to the Ethics Code, and to the extent feasible, seek to
resolve the conflict in a way that permits the fullest adherence to the Ethics
Code. 295
The 1992 Guide to the Ethics Code explicitly contemplated ethical challenges faced by
military psychologists under Standard 8.03:
It is recognized that in some situations as, for example, in the military, the
psychologist is not likely to be able to change the system. But note that failing to
resolve the conflict is not an ethical violation. Failing to attempt resolution is. 296
Fisher’s Guide to the 2002 Ethics Code did not discuss military and correctional
psychologists in relation to 1.03 (2002), but addressed them in the context of 1.02, noting that the
standard “addresses instances in which the requirements of the Ethics Code may conflict with
judicial authority, with state or federal laws, or with regulations governing the activities of
psychologists working in the military, correctional facilities, or other areas of public service.” 297
It therefore appears that the language in the 2002 revised Code successfully transferred coverage
of ethical conflicts arising in military and correctional settings from 8.03 (1992), which dealt
with ethical conflicts with organizational demands, to 1.02, which tackled ethical conflicts with
law, regulations, or other governing legal authority.
With the revision to Standard 1.02, psychologists arguably no longer had to resolve
ethical conflicts in a way that “permits adherence” 298 to the Code; instead, they could simply
follow the law. Yet we did not see any evidence that the shift to reliance on 1.02 from 8.03
(1992 Code) / 1.03 (2002) had a practical impact on the obligations imposed upon military
psychologists. Although the language differs, neither iteration of either standard imposed a
requirement on psychologists to follow either the Ethics Code or the conflicting directive.
Rather, both standards had the same basic affirmative requirements: that psychologists raise the
conflict and attempt to resolve it. Both also left the final decision of what to do, if the conflict
was unresolvable, to the psychologist. And although both 1.02 and 1.03 were amended in 2010

295

1992 Ethics Code.

296

Id. at 159 (emphasis in original).

297

2002 Guide; see also 2010 Guide at 26–28 (including case study regarding psychologists in
correctional setting, under Standard 1.02 case studies).

298

The 2002 Ethics Code removed the adjective “fullest” from standard 1.03, thereby requiring only that
psychologists “resolve the conflict in a way that permits adherence to the Ethics Code,” rather than “the
fullest adherence,” as the language in 8.03 required. Ethical Principles of Psychologists and Code of
Conduct, American Psychological Association (2002), available at
http://www.apa.org/ethics/code/principles.pdf [hereinafter the “2002 Code”].

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to include language explicitly prohibiting their terms to excuse a violation of human rights,
neither standard contained that explicit limitation in 1992 or 2002.
Sidley found no evidence that the Nuremberg defense arose at any point during the
considerations of the revisions to 1.02. This is especially notable in light of the revisions
specifically aimed at expanding the scope of 1.02 to capture ethical conflicts with military
directives. We note that the 1992 Guide had contemplated that 8.03, at that time the standard
that covered military and correctional psychologists, was not a universal solution for conflict
situations. The 1992 Guide explained that “psychologists are not ordinarily expected to resign
from their professional positions in order to comply with the stipulations of [the] Ethics
Code,” 299 but recognized that there were certain “rare instances” that were “so obviously illegal
and unethical as to require withdrawal, such as if the psychologist finds that he or she has been
hired solely to ‘develop’ and sell bogus, totally unvalidated ‘diagnostic’ tests.” 300 Neither the
1992 Ethics Code nor the 1992 Guide explained when a situation becomes one of the “rare
instances” requiring withdrawal. It seems reasonable to conclude from the example provided
that an interrogation involving enhanced techniques designed to cause harm to the detainee
would be one of the instances that require withdrawal. But, the Ethics Code itself does not
explicitly say this; indeed, it does not even state that some situations would require withdrawal;
that suggestion is only found in the 1992 Guide to the Code.
Moreover, the 2002 Fisher Guide specifically recognized the difficulty of the ethical
dilemma in the context of the military, highlighting it as an area where a psychologist may often
be unable to resolve a conflict under 1.02. The Guide explained that:
Standard 1.02 also recognizes that legal and regulatory authorities may not always
respond to specific steps taken by psychologists. When reasonable actions taken
by psychologists do not resolve the conflict, they are permitted to make a
conscientious decision regarding whether to adhere to the Ethics Code or the legal
or regulatory authority.
For example, U.S. Department of Defense (DoD) regulations routinely require
military psychologists to perform activities that place service to the military
mission above those of the best interests of the individual client/patient, resulting
in conflicts between DoD requirements and Ethical Standards involving
confidentiality, maintenance of records, competence, and multiple relationships
[]. 301
Although it is clear that ECTF participants were aware that 1.02 would cover military
directives, participants again and again told Sidley that they never contemplated that the
exception they were creating was the same kind of exception used in the Nuremberg trials to
attempt to excuse egregious, inhumane, and immoral conduct. For example, Ramos-Grenier
emphasized that the ECTF was “not even thinking of following orders in the way that we are
299

1992 Guide at 158.

300

Id. at 158–59.

301

2002 Guide at 35.

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hearing some psychologists may have. It did not even occur to us at that point that that is even
an issue.” 302 She analogized the Task Force’s inability to predict enhanced interrogation
practices to not accounting for unforeseeable advances in technology. 303 However, RamosGrenier remembered that the Task Force discussed the idea that the Ethics Code was allowing
psychologists in certain situations to set aside the constraints of the Ethics Code and that there
was debate about whether that was appropriate. 304 She was one of the few ECTF participants
who stated that the group considered whether the standard would allow psychologists to harm
people, 305 but she said the harm they envisioned had absolutely nothing to do with interrogations
of prisoners or detainees. When asked what kind of “harm” they had considered, Ramos-Grenier
responded that their concerns “in hindsight … were kind of silly.” 306 For example, ECTF
members were worried about using outdated tests, or institutional policies that provided services
to some people but not to others. She emphasized that the ECTF “did not design the Code so
that it would allow psychologists to do that [engage or participate in interrogations using
enhanced techniques or resulting in harm to detainees], because it wasn’t going on in our
heads.” 307 And Grill, who was specifically at the ECTF to address military concerns, stated that
he did not recall anyone ever using the phrase “Nuremberg defense.” 308 Indeed, Grill asked the
Sidley team for clarification of what the Nuremberg defense was, although after it was explained,
he conceded that allowing psychologists to follow military orders even if they conflicted with
their ethical constraints was, in essence, what they were talking about in 1.02. 309
Despite how squarely on point the Nuremberg defense is when considering a standard
that allows individuals to eschew ethical limitations otherwise binding on their peers and their
profession if directed to the contrary by military superiors, ECTF participants uniformly stated
that it did not occur to them that they were opening the door for psychologists to invoke the
Nuremberg defense. The amendments to Standard 1.02 were added to the draft Code prior to
September 11, 2001, so they could not have been the result of collusion with the government to
support torture during the war on terror. And although there were two ECTF meetings after
S9/11, there were no changes to 1.02 that further facilitated engaging in unethical conduct or
broadened the exception for doing so.
Last, we must note that although there is evidence showing that correctional and military
psychologists pushed for the expansion of 1.02 to allow it to cover correctional facility and
military regulations, there is no similar evidence of their suggesting the second sentence of 1.02.
As noted before, the second sentence is the language of 1.02 that explicitly permits psychologists
to follow directives contrary to their ethical obligations. We cannot conclusively say that
302

Ramos-Grenier interview (June 4, 2015).

303

Id.

304

Id.

305

Cooper also recalled a discussion along these lines. Cooper interview (Apr. 16, 2015).

306

Ramos-Grenier interview (June 4, 2015).

307

Id.

308

Grill interview (May 23, 2015).

309

Id.

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military or correctional psychologists did not ask for, advocate for, or encourage the adoption of
the second sentence, but Sidley found no evidence similar to what it found for their advocacy of
the expansion in scope of the standard. In his conversation with Sidley, Grill was very clear on
his desire to ensure 1.02 covered military directives by including language other than “law,” but
he did not remember with as much clarity the debate regarding the second sentence, although he
eventually stated that the sentence would have been important because it would help sensitize the
ECTF members to the concerns military psychologists faced. 310
2.

Concerns from private practitioners and forensic psychologists

Private practitioners and forensic psychologists were very concerned about the Code
generally, which manifested itself in criticism of many of the standards, including 1.02. In
general, private practitioners thought the Code was too easily turned into a weapon against
psychologists and advocated for the Code to be shorter and clearer in defining aspirational versus
enforceable conduct, much less vague and much more careful in its wording. For example, in
August 2000, John Fleer wrote to Lenore Walker of Division 42’s Ethics Task Force, providing
comments on draft 3 of the Ethics Code, generated in March 2000, which sum up many of the
concerns private practitioners were expressing. He stated that in his experience as a malpractice
attorney having represented mental health professionals:
The APA Code is routinely utilized in civil trials and administrative hearings to
establish the standard of care for psychologists. Judges and juries refer to the
Code to make decisions about psychologists’ liability for civil damages and
whether to revoke or suspend their licenses.
Unlike most statutes and regulations, the ethical standards in the APA Code are
vague as to what specific conduct is mandated or prohibited. The vagueness gives
rise to interpretation by so-called experts, typically to the detriment of the
psychologist whose work is under scrutiny. The standards are so overly broad
that some language can be said to apply to almost anyone accused of negligence
or misconduct. I do not believe the Code of Ethics ever helps in the defense of a
psychologist. It is only used as a tool for attack. In my view, there are simply too
many standards. . . . Given that these principles have the effect of law in many
states (e.g. California), it seems to me most important that they are
comprehensible to both professionals and lay people and that they are enforceable
in a consistent manner.
...
I am certainly not the first person to note the Code’s ambiguity and the difficulty
which thereby arises in applying it to actual occurrences. (See, Bersoff, D.N.
1994. Explicit ambiguity: The 1992 ethics code as oxymoron. Professional
Psychology: Research and Practice, 25, 382-387.)

310

Id.

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Gerald Koocher and Patricia Keith-Spiegel have suggested that the “many
qualifiers” in the Code provide “some flexibility in responding to different
contexts.” (Ethics in Psychology, 2d Ed., New York, Oxford University Press,
1998 at 29.) This is certainly correct. However, it is just such “flexibility” which
I find unfair for the competent and well-intentioned psychologist who is fighting
for his or her professional life. The APA Ethics Committee is likely to make god
use of the Code’s “flexibility” to arrive at a just and informed decision. In
contrast, an administrative law judge, untrained in psychology, or a jury of
laypeople, are not so likely to do so. My comments are addressed to the use of
the APA Code in these latter contexts—civil litigation and licensing board
disciplinary actions. 311
Arthur Kovacs and Christie Morehead aired similar thoughts in their comments on draft 3
of the Code, stating that their suggestions “will increase the clarity and precision of the document
and will better serve those who believe in the worth of clear and enforceable ethical principles
while at the same time markedly reduce the risks that our constituents face from zealous
plaintiffs’ attorneys and from overzealous psychology board investigators and administrative law
judges.” 312 Specifically, their proposals were based on, among other things, “[a]n unremitting
desire to make sure that the text created provided better protection to our constituents from
having to be subject to inappropriate and harmful possible interpretations by plaintiffs’ attorneys
or by non-psychologist state psychology board investigators and/or administrative law
judges.” 313
And in February 2001, Dick Saunders posted a message on the Division 42 listserv with
subject line “Ethics Disaster,” voicing his opinions on the revision process to date. He
commented that a “professionally respectable [document] to me means clear, concise minimum
standards of behavior” and that “the Code says little if anything about due process for
psychologists, or any of the Constitutional protections to which we are entitled as citizens,
including the right to know what we are going to be charged with—so that we can refrain from
adverse behavior in the first place, or defend ourselves if necessary in the second place.” 314
Although the documentary evidence confirmed that private practitioners were concerned
with the Code and unhappy with the early revisions, it did not show that their most vocal
complaints were about 1.02, especially after the revised language was added to the draft in
October 2000. However, Division 42 members Sidley spoke to emphasized that having clearer
guidance in 1.02 was important to the group. Marty Williams, an ECTF observer for Division
42, Independent Practice, from 2000-2002, recalled this area of concern—and said that standard
1.02 was one of the Division’s priorities in its agenda for the Ethics Code revision. 315 Division
42 was the largest Division in APA. Williams confirmed that psychologists in independent
311

HC00003496.

312

APA_0246161.

313

Id.

314

APA_0172556

315

Williams interview (Apr. 30, 2015).

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practice felt under attack and were concerned about increasing liability from state licensure
boards and civil litigation. 316 Williams and other Division 42 representatives, including Lenore
Walker and Jean Carter, were very vocal about the risk the Ethics Code extended to them, and
believed the Ethics Code had drifted from its original purpose, which was for use by the Ethics
Committee to adjudicate complaints against psychologists charged with ethical misconduct.
Instead, the Ethics Code had gained the force of law in many states, and psychologists were
facing prosecution pursuant to state licensing laws and defending against civil suits, and in both
settings, opposing parties used the Ethics Code as a weapon against psychologists. Division 42
wanted to revise the Ethics Code substantially so that independent practitioners would not
continue to be hurt by it.
Although Division 42 had several areas it focused on in the revisions, Williams said
ensuring that there was clear language in 1.02 that allowed psychologists to follow the law
without facing “prosecution” for actions undertaken in compliance with legitimate legal
mandates was one of the Division’s priorities. 317 For example, Williams explained that one of
the ethical rules required psychologists to withhold test data, and practitioners were “getting
burned” because judges were ordering them to release data and enter it into evidence. 318
Therefore in order to comply with the Ethics Code, a psychologist was required to withhold the
data and therefore disobey a court order and risk being held in contempt and jailed. Carter also
recalled that most of the discussions around 1.02 centered around this kind of example
situation. 319 It was therefore important to Division 42 that psychologists be free to follow legal
orders, and Williams felt very strongly about this. 320
The 1992 Guide provides a sample 1.02 conflict a forensic psychologist might face: “in a
forensic matter in which records are ordered to be released without consent, the psychologist
may consider requesting the judge to review the material in private and make a determination if
any information should be released.” 321 Fisher noted this example in a May 21, 1999
memorandum to the ECTF regarding drafts of standards 322 which supports the idea that this was
an area of concern.
Behnke did not recall the ECTF discussions around 1.02, but he did recall that
psychologists in independent practice were feeling under attack, and that there had been an
enormous amount of “pushback” regarding the Ethics Code and the revision from the
independent psychologists who felt under siege. Generally, as seen in some of the comments
included above, private practitioners felt like their concerns about the Code being used as a tool
316

Id.

317

Id.

318

Id.

319

Carter interview (Apr. 17, 2015).

320

Williams interview (Apr. 30, 2015).

321

1992 Guide at 33.

322

Memorandum from Fisher, Drafts of Standards Assigned at the April 1999 ECTF Meeting (May 21,
1999).

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against them were not being heard and that the revisions did not reflect the changes they were
proposing. When we asked Behnke what Ethics Code revisions would have addressed their
concerns, Behnke stated that changes to 1.02 could have primarily addressed their concerns.
3.

Nuremberg not discussed

While military, correctional, forensic and other psychologists advocated for revisions to
Standard 1.02 which would arguably make it less restrictive on psychologists and permit them to
follow the law, court orders, or military directives, absent from the discussion were clear, robust
voices to advance the need for a stricter ethical standard that would prevent psychologists from
subverting their ethics to comply with a legal directive. This absence is remarkable given that
one purpose of the Ethics Code was the “welfare and protection of the individuals and groups
with whom psychologists work.” And even more remarkable given what we now know about the
abuses that occurred during interrogations at CIA black cites and U.S. military detention centers.
There was not complete silence on the side of the debate asking for more specificity in
the standards, but those voices recognized that they were in the minority. For example,
Nightingale acknowledged that his push for more specific standards ran counter to the concerns
driving the majority of the membership. In July 2001, he wrote Fisher that he was “not in
agreement with the move away from specificity in standards and away from guidelines toward
more generalities. I suppose that this sea change may suit the needs of some constituencies who
are concerned about lawsuits and overly zealous boards, but my own concern is educative …
[and] those needs are better served by standards which address some of the concerns of specific
groups. Isolated guidelines run the risk of being just that, isolated.” 323
Though the ECTF favored a less restrictive Code, no one that we spoke to who
participated in the ECTF process thought that the motivation behind the changes to 1.02 was to
provide psychologists an excuse to engage in unethical conduct or to facilitate it in any way—
and none had considered the “Nuremberg defense” in the context of 1.02. ECTF member
Williams did not associate 1.02 or the changes to it with national security or military settings and
“never in a million years” thought that the revision had any relationship to a Nuremberg
defense. 324 ECTF member Carter also stated that the discussions about 1.02 and 1.03 were not in
the context of national security. 325 In retrospect, Williams recognized that the wording relieved
psychologists of the responsibility to refuse to do something morally wrong, but the thought of
the 1.02 language being applied in relation to national security settings or interrogation
techniques did not occur to him during discussions of the revision. 326
When we asked Gilfoyle whether she or the ECTF considered the Nuremberg defense in
connection with revisions to standard 1.02, Gilfoyle stated she did not recall the Nuremberg
defense ever coming up in the context of 1.02. Gilfoyle noted that prior discussion of the
Nuremberg defense and her analysis as well as the analysis of outside counsel related only to
323

APA_0030515.

324

Williams interview (Apr. 30, 2015).

325

Carter interview (Apr. 17, 2015).

326

Williams interview (Apr. 30, 2015).

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standard 8.03 and not 1.02. When pressed on why they did not consider that the Nuremberg
defense could present more serious and pertinent concerns in a standard that specifically
addressed laws conflicting with ethics, Gilfoyle stated that 1.02 was really being looked at and
interpreted in the context of addressing psychologists’ obligations when dealing with, for
example, turning over patient records pursuant to a court order. Moreover, Gilfoyle stated that
the phrase “Nuremberg defense” is used in very casual settings to mean that “someone else made
me do it,” presumably indicating that the phrase did not immediately raise concerns about its
potential for excusing immoral conduct. 327
Many participants with whom we spoke could see how 1.02 could be interpreted as
allowing a Nuremberg defense, although they maintained it was not discussed in the context of
1.02 during the revisions. Yet Behnke 328 stated that he did not think 1.02 provided a Nuremberg
defense—which he defined as the abdication of moral agency by deferring entirely to another
moral agent. Behnke said he never read the APA Ethics Code to allow such an abdication: rather
Behnke stated that it affirmatively placed ethical obligations on psychologists to clarify, try to
resolve, and in some cases to argue. 329 Ethicists Sidley spoke to had differing opinions on this,
with some stating that the Nuremberg defense implications of the language of 1.02 should have
been immediately obvious. 330 However, although Gauthier acknowledged that the Standard
could certainly present that concern, he also agreed with Behnke’s notion that the Standard’s first
sentence requiring that psychologists engage in order to resolve the conflict stands in contrast
with the events at Nuremberg, where soldiers simply removed themselves from the ethical
question. 331
There was at least one person who raised a Numerberg-type concern. After the second
sentence was added, which permitted psychologists to follow the law if unable to resolve an
conflict, the ECTF received at least one logged comment that specifically raised a concern that
the language “reads too much like the ‘I was only following orders’ excuse that has been used to
disastrous and inhuman[e] effect in the past.” 332 The reviewer for this comment was RamosGrenier, who classified it as “inimical to the spirit of ethics,” one of the pre-formulated
statements reviewers could assign to comments. 333 Ramos-Grenier was surprised that she had
been the reviewer, as she did not recall this comment, and doubted she would use the term

327

Gilfoyle interview (May 18, 2015)

328

Behnke did not join APA until 2000, after the 1998 memoranda were issued. The memoranda were
accessible to him for review once he joined, but he stated he did not recall ever reviewing the 1998
memoranda discussing the Nuremberg defense.
329

Behnke interview (May 5, 2015).

330

Sherman interview (June 5, 2015). Nancy Sherman is a Professor of Philosophy at Georgetown
University and a former Distinguished Chair in Ethics at the United Stats Naval Academy. See also
Sveaass interview (June 11, 2015).
331

Gauthier interview (June 15, 2015).

332

ECTF Reference Book Part 9, comment 85 (Maierle) (June 22-24, 2001) (on file with Sidley)
(referring to laws mandating that Jews be put in concentration camps).
333

Approved Minutes of the Ethics Code Task Force (Oct. 24, 1997) (on file with Sidley).

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“inimical” 334 absent its having been pre-composed. She agreed the phrase must have been
preformulated. Although Ramos-Grenier classified the comment as needing no further review,
she recalled quite a bit of discussion about the conflict standards. 335 She confirmed that the
ECTF did consider whether it was allowing psychologists to “get away” with following
directives they had determined were unethical. Nonetheless, the ECTF participants’ view of the
unethical directives was nowhere near as serious or grave as what gave rise to the term
“Nuremberg defense” or as what is currently alleged this language permitted. 336 Instead, RamosGrenier said they debated whether psychologists working for organizations should be permitted
to operate under a different ethical standard than private practitioners, who would have no choice
but to step away from the situation. In the end, the ECTF determined it could not require
psychologists to quit or walk away from their jobs whenever they confronted a directive they
could not, after considerable required effort, reconcile with the Ethics Code. 337 Ramos-Grenier
stated that the real quandary of how a psychologist should resolve a situation where he or she is
mandated to do something unethical was never properly resolved, and that she was “not happy”
with these standards. Fisher used the same sentiment to describe these standards, saying no one
really “liked them.” Both recognized that there were serious concerns on both sides of the
argument that could not be fully resolved by the Standard.
To be fair, the ECTF also received comments from those who thought it problematic that
the second sentence suggested psychologists did not have to follow the law. The APA’s
Committee on Legal Issues (“COLI”) recommended removing it “because the words ‘may
adhere’ seem to imply that psychologists may disregard the law.” 338 Fisher’s reaction was that
“the last sentence is helpful and informative to psychologists.” Similarly, a group from a
seminar on ethics and legal issues from the University of Maryland submitted comments to draft
5 concrned that the phrase “may adhere” “might be interpreted by some as condoning not
following laws, legal rulings, or precedents.” 339 The group proposed alternative language that
was not adopted.
Despite these countervailing opinions, it is a striking oversight not to grapple with
concerns about the Nuremberg defense when drafting a sentence ostensibly to resolve confusion
and uncertainty about choosing between legal or organizational mandates and ethics. This is
especially the case when one or both of these standards specifically dealt with and sought to
incorporate military and law enforcement commands, the very kinds of mandates used as a
defense in the Nuremberg Trials. While those involved with the revision claimed that the 1998
legal analysis applied to 8.03, at that point, 8.03 covered correctional and military psychologists.
Although Gilfoyle sought outside counsel’s opinion on, among other things, concerns
regarding 8.03 and the Nuremberg defense, there is no evidence that Gilfoyle, Fisher, or the
334

Ramos-Grenier interview (June 4, 2015).

335

Id.

336

Id.

337

Id.

338

APA Ethics Code, Draft 6 Comments (Apr. 2002) (on file with Sidley).

339

Letter from Strein to Tin, Ethics Code Draft 5 (Oct. 26, 2001).

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ECTF consulted any outside ethicists about this concern. If they had, they would have probably
learned that the concern regarding the Nuremberg defense is immediately apparent when reading
the language added to 1.02. 340 And although Gauthier pointed to the first sentence in 1.02 as an
indication that the psychologist was required to engage in the decision-making process in order
to determine the correct path, rather than detach from it as had been the case with soldiers in
Nuremberg, he did recognize the concern regarding the Nuremberg defense in the 2002 1.02
standard. 341
E.

Human Rights Standards

The ECTF published draft 5 in February 2001. 342 Fisher’s notes show that at the June
2001 session, the ECTF reviewed a comment to draft 5 from the Committee on International
Relations in Psychology (“CIRP”), which suggested inserting the phrase “in keeping with the
basic principles of human rights” to end the first sentence of Standard 1.02. CIRP was
“concerned about the use of this standard in countries with totalitarian regimes.” 343 Fisher noted
that she “understand[s] their concern and put that in the aspirational section” because she was
“not sure whether basic principles of human rights can be operationalized in a way that can be in
the specific standards.” 344
When we asked Fisher about CIRP’s concern, Fisher recalled that the ECTF discussed
the issue, but that they decided they could not define “human rights” in a way that would provide
notice to psychologists about what conduct would be considered acceptable under the standard.
For example, would a psychologist counseling someone seeking an abortion be counseling
someone to violate human rights? They discussed many examples of potential disagreements
about the definition of human rights. Gilfoyle agreed that “human rights” is too vague a phrase
to be included in the enforceable section of the Ethics Code.345 As stated earlier, the ECTF had
been focused on creating an Ethics Code that provided psychologists with clear notice about
prohibited or required conduct, and they felt that inserting a phrase like “human rights” in the
enforceable section of the Code ran counter to their efforts in providing clear guidance and
notice. 346
Moreover, Fisher explained that CIRP’s concern was one having to do with totalitarian
regimes, which they did not at the time think was applicable in the United States. 347 Fisher
340

Sherman interview (June 5, 2015); Sveaass interview (June 11, 2015).

341

Gauthier interview (June 15, 2015)

342

APA_0847489.

343

Id.

344

Id. The discrepancy between the language in the aspirational section and 1.02 later led to calls to
revise 1.02 to mirror the language in the aspirational section, which eventually resulted in the 2010
amendment to 1.02. Additional discussion of this issue appears later in the report..
345

Gilfoyle interview (May 18, 2015).

346

Behnke interview (May 5, 2015); Gilfoyle interview (May 18, 2015).

347

Fisher interview (May 6, 2015).

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stated that the lens within which the ECTF viewed this discussion was not about torture, but
instead about more everyday situations like if someone could not pay his or her psychologist,
was demanding payment potentially depriving that individual of human rights? 348 It did not even
occur to them to grapple with whether the standard potentially sanctioned torture in the United
States. Fisher stated that had they known about the EIT interrogation program, Standard 1.02
would not have remained the way it was. If she were to be dealing with the issue today, she
would include compliance with “human rights” in the standard and define that phrase somewhere
in the introduction, perhaps by referencing the World Health Organization or other international
treatises. 349 Fisher thought the current version of 1.02, as amended in 2010, does render
participation in interrogations using EITs a violation of the Code. 350
Ethicists do not seem to find the same vagueness in the phrase “human rights” that
Gilfoyle, Fisher, and Behnke identified at the time of the ECTF revisions and after, including in
their discussions with Sidley. Nancy Sherman, a Professor of Philosophy at Georgetown
University and former Distinguished Chair in Ethics at the United States Naval Academy,
believed that the prohibition on violating human rights is not and should not be aspirational, but
is rather a deontological limitation—in other words, an absolute prohibition. 351. She agreed that
“human rights” could be a vague term, but that most people have a sense of what it means, and
the solution to the vagueness problem was to define it within the Ethics Code. 352 Nora Sveaass,
an Associate Professor of Psychology at the University of Oslo who served on the United
Nations Committee Against Torture from 2006 to 2013, was also skeptical that concerns
regarding alternative interpretations of what could constitute human rights should have led to the
language included in 1.02. 353
F.

Seligman comment

The ECTF received an official comment on draft 5 from Martin Seligman, 1998 APA
president. Seligman’s comment addressed standard 2.01(b), Boundaries of Competence, and
asserted that the limitations on psychologists regarding competence were based in political
considerations and not in fact, and that the standard “counfound[ed] the political leanings of
many of the members, with what is known scientifically.” 354 Seligman argued that there was no
evidence to support engaging in different approaches with patients depending on their ethnicity,
race, or socioeconomic status, and emphasized separating politics from the Ethics Code. 355

348

Id.

349

Id.

350

Id.

351

Sherman interview (May 19, 2015).

352

Sherman interview (June 5, 2015).

353

Sveaass interview (June 11, 2015).

354

ECTF Reference Book Part 9, comment 74 (Seligman) (June 22-24, 2001) (on file with Sidley).

355

Id.

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Fisher recalled that Seligman had tried to influence her view of the standard on
competence. 356 Seligman invited Fisher to meet with him during one of the APA summer
functions and generally advocated for a less restrictive competence standard. 357 Fisher reported
that she was annoyed at the approach and did nothing in response to his view. 358 If Seligman’s
conversation with Fisher was contemporaneous with his comment, he would no longer have been
in governance, though still arguably was an influential member within APA. Other than the
conversation with Seligman, Fisher faced no pressure regarding specific revisions from anyone
at APA governance or staff, and stated that she was never unduly influenced one way or another
by anyone. 359
G.

October 2001 meeting

The meeting immediately after the events of 9/11 took place in October 2001, and was
facilitated as a phone conference, although some staff and at least one member met in person in
Washington, D.C. Behnke commented that the meeting taking place as a phone conference cut
down on “small talk” or social discussions, and therefore the October 2001 meeting was even
more focused than other meetings on the standards. 360 No one recalled going back to revise
standards because of the events of 9/11 or because of concerns about national security, terrorism,
interrogations, or psychologists’ role in any of the aforementioned. Similarly, neither Fisher nor
other participants recalled discussions about national security, terrorism, or interrogations.
H.

Nightingale concern

After September 11, 2001, at least one comment directed to individuals involved in the
Ethics Code revision raised concerns about issues germane to this investigation. Sometime
between February 17 and February 20, 2002, Edmund Nightingale wrote to Fisher 361 to reiterate
a comment he had brought up “briefly” at the February 17, 2002 Council of Representatives
(“COR”) meeting. He stated that:
the current ethics code focuses on a number of general issues and then upon
certain specific activities of psychologists such as assessment, therapy, teaching,
and research. I wondered aloud whether activities such as advising a physician on
psychotropics, a politician on self-presentation and ‘spin’ on information and
events, ‘psychological profiling’, hostage negotiation, consultation with police
interrogators in vivo who are trying to ‘break down’ a suspect [at this point still
innocent until proven guilty], with SWAT teams, national intelligence
organizations (CIA, NSA, FBI, etc) would have anything in common with each
356

Fisher interview (May 6, 2015).

357

Id.

358

Id.

359

Id.

360

Behnke interview (May 1, 2015).

361

It is not clear on what date Nightingale wrote the email or to whom he directed it. However, Fisher
responded to him on Feb. 20, 2002, and copied Deborah Felder, Jonathan Tin, Behnke, and Stanley Jones.

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other which would not be covered already in the more general principles. Perhaps
the general principle of ‘beneficence’ covers it, but there are certainly competing
views about who benefits from some of these activities… perhaps some principles
on Consultation as an activity would make explicit what is already implicit in the
larger picture. Perhaps another time, another place would be the venue for these
issues to be considered. 362
Although Nightingale seemed to be raising a number of different circumstances of
varying ethical implications, he did refer to the concept of “interrogators in vivo who are trying
to ‘break down’ a suspect,” albeit in the context of consulting with police interrogators. Fisher
responded that:
I think that there are general standards relevant to these issues. However,
providing specific guidance on alternative ethical pathways that correctional and
military psychologists might select to address the complexity and contextual
nature of the types of dilemmas you describe is beyond the scope of the ethics
code. 363
Fisher went on to describe the applicability of certain standards to the different examples
he set out, and concluded that “[f]or all the dilemmas you describe, Standard 1.02 is also
relevant, recognizing that correctional, military, and other psychologists need to make ethical
decisions within the context of laws, regulations, and other legal authorities governing their
work.” 364
Fisher told Sidley that she understood Nightingale to be requesting a standard for each
example in his email and her response was meant to convey that the Ethics Code could not do
that. 365 She said he seemed to want a section of the Code dedicated to correctional and military
psychologists, but the 2002 revision had sought to minimize sections dedicated only to particular
specialties, including by eliminating the section dedicated to forensic psychology.
Behnke stated that Nightingale was raising a long, laundry list of scenarios, and Fisher’s
response was that as a category, the list was beyond the scope of the Ethics Code. 366 At the time,
despite Nightingale’s description, no one imagined that interrogations would become the issue
they became, and if they knew then what they know now, things might have evolved in a very
different way. Behnke also pointed out that Nightingale’s comment came toward the very end of
the revision process and the bulk of the revisions were completed, and that people might have
been reluctant at that point to reopen the entire revision process. 367

362

APA_0036265.

363

Id.

364

Id.

365

Fisher interview (May 6, 2015).

366

Behnke interview (May 5, 2015).

367

Id.

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For his part, Nightingale confirmed that he had envisioned that public service
psychologists could benefit from a section or certain standards dedicated to their particular
ethical concerns, similar to the section dedicated to forensic psychologists. 368 He also believed
that the Code would benefit from directly addressing specific situations rather than describing
circumstances generally, which is why he raised some of these scenarios in his email to
Fisher. 369 He told Sidley, however, that when he stated in his email that “[p]erhaps another time,
another place would be the venue for these issues to be considered,” he likely meant that he
understood that the Code was close to completion and that the policy decision had been to make
it more general rather than more specific. 370
ECTF members, observers, and staff recalled no changes to any Ethics Code standards
because of national security interests or interrogations, and remembered no discussions about
either topic. 371 ECTF participants overwhelmingly stated that they would never have supported
any language or standard that would support or facilitate torture or cruel, inhuman, or degrading
treatment, or that would have supported EITs. Moreover, participants stated that the war on
terror and the EIT program were unknown to them at the time the Code was being revised, and
that the Bush administration would have engaged in the EIT program was inconceivable. 372
I.

Changes to Principles After September 11, 2001

There were no relevant significant changes to the draft language post September 11,
2001. 373 We reviewed changes made after September 11, 2001 to determine whether any
appeared motivated by or connected to the events of 9/11, the country’s response to terrorism,
and the legal framework of the Yoo/Bybee memos, which were not yet public at the time.
Between draft 5 from June 2001 and draft 6 generated in October 2001, there were two
changes to principles dealing with harm and fundamental rights. First, the October 2001 version
of Principle A (Beneficence and Nonmaleficence) deleted language added in June 2001 on
“thoughtful and prudent conduct” and “prevent[ing] or minimiz[ing] harm to others through acts
of commission or omission in their professional behavior.” 374

368

Nightingale interview (June 9, 2015).

369

Id.

370

Id.

371

D. Knapp interview (Apr. 10, 2015); Williams interview (Apr. 30, 2015); El-Ghoroury interview (Apr.
14, 2015).
372

Fisher interview (May 6, 2015); Behnke interview (May 5, 2015).

373

Tri-part Comparison for Standard 1.02 (on file with Sidley).

374

HC00007718.

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Also between the June and October 2001 draft, the phrase “fundamental rights” was
deleted from the sentence “Psychologists accord appropriate respect to the fundamental rights,
dignity, and worth of all people…” in Principle E (Respect for People’s Rights and Dignity). 375

Participants did not recall discussions regarding these changes and did not recall the
motivation behind them. 376 Although both changes make the relevant principles less protective,
Sidley was not able to find any evidence that they were motivated by a desire to facilitate any
conduct in response to the events of September 11, 2001.
J.

Do No Harm

It is important to note that many members and staff stated that the changes to 1.02 alone
could not have provided psychologists with “permission” to engage in torture or cruel, inhuman,
or degrading treatment because the Ethics Code still imposed a requirement to “do no harm.” 377
The general concept of “do no harm” exists in two places in the Code: in the General
Principles and in the Enforceable Standards.
375

Id.

376

Fisher interview (May 6, 2015); Koocher interview (Feb. 26, 2015); Behnke interview (May 1, 2015).

377

Behnke interview (May 5, 2015); Fisher interview (May 6, 2015); Walker interview (May 14, 2015);
Cooper interview (Apr. 16, 2015).

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“Principle A: Beneficence and Nonmaleficence,” reads, in relevant part: “Psychologists
strive to benefit those with whom they work, and take care to do no harm . . . When conflicts
occur among psychologists’ obligations or concerns, they attempt to resolve these conflicts in a
responsible fashion that avoids or minimizes harm. . . .” Although the Principles “are
aspirational goals to guide psychologists toward the highest ideals of psychology . . . [and]
should be considered by psychologists in arriving at an ethical course of action,” they are “not
themselves enforceable rules.” 378 Indeed, “General Principles, in contrast to Ethical Standards,
do not represent obligations and should not form the basis for imposing sanctions. Relying upon
General Principles for either of these reasons distorts both their meaning and purpose.” 379
Therefore, although the aspirational principles are meant to provide directional guidance and a
sense of ideal conduct, they are not actionable and provide no basis by which to adjudge a
psychologist’s conduct with any consequence.
Standard 3.04 (2002) is titled “Avoiding Harm” and reads: “Psychologists take
reasonable steps to avoid harming their clients/patients, students, supervisees, research
participants, organizational clients, and others with whom they work, and to minimize harm
where it is foreseeable and unavoidable.”
First, 3.04 has a different mandate than General Principle A. It does not instruct
psychologists to do no harm, but rather obligates them to “avoid harming” and to “minimize
harm.” Although it encourages psychologists to distance themselves from causing harm, it is not
an absolute requirement to do no harm.
Second, according to the Ethics Office, standard 3.04 in particular is not enforceable on
its own. Specifically, Behnke and Lindsey Childress-Beatty380 stated that a psychologist would
not be charged with violating standard 3.04 unless he or she was also charged with violating
other standards. In other words, unless a psychologist caused harm in a way that violated a
standard other than 3.04, that psychologist could not be charged with violating standard 3.04.
Childress-Beatty explained that “harm” was too vague a concept and did not provide
psychologists with proper notice about proscribed behavior. 381 For example, a psychologist who
competently testified at a child custody hearing in such a way that a parent did not obtain
custody could be said to be causing “harm” to that individual. 382 Because “harm” was so broad a
term as to potentially capture that kind of conduct, it could not be the basis of liability on its
own. Behnke and Childress-Beatty said that this understanding of 3.04 came from the General
Counsel’s office at APA. When asked about standard 3.04, Gilfoyle stated that it absolutely
could be the sole basis for charges against a psychologist and that there was no reason for it not
to be enforceable on its own. 383

378

2002 Ethics Code, at Introduction and Applicability.

379

Id. at General Principles.

380

Behnke interview (May 5, 2015); Childress-Beatty interview (May 13, 2015).

381

Id.

382

Id.

383

Gilfoyle interview (May 18, 2015).

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Therefore, although the Code contains both an exhortation to take care to do no harm and
an explicit standard that requires avoiding and minimizing harm, the view of the APA Ethics
Office is that doing harm is not a basis for an ethical violation in the absence of a violation of
another standard.

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APA INTERACTIONS WITH CIA AND DoD: 2001—2004
I.

BACKGROUND: GOVERNMENT POLICY AND PRACTICE

On September 17, 2001, President George W. Bush signed a Memorandum of
Notification granting the CIA authority to covertly capture and detain individuals who posed a
threat of terrorist activity. Over the next several months, the CIA and DoD began capturing and
interrogating individuals suspected of involvement in terrorist activity, as well as individuals
believed to have knowledge of such activity even if not involved themselves. These individuals
were detained at foreign military bases and CIA black sites, where they were classified as
“enemy combatants” 384 and denied protected status under the Geneva Conventions. 385 President
Bush also issued a policy statement directing military commanders to “treat detainees humanely
and, to the extent appropriate and consistent with military necessity, in a manner consistent with
the principles of Geneva,” 386 but there is no evidence that a similar policy statement was directed
toward non-military government agencies. 387
On January 9, 2002, just days before the detention facility at Guantanamo Bay opened,
John Yoo, Deputy Assistant Attorney General in the Department of Justice’s Office of Legal
Counsel (“OLC”), produced a memorandum to William J. Haynes, General Counsel for the
Department of Defense, regarding the applicability of international laws of armed conflict to the
detention of members of al Qaeda and the Taliban at Guantanamo. 388 The memorandum
concluded that the War Crimes Act, the Geneva Conventions, and customary international law
do not apply to al Qaeda and Taliban detainees.
On January 11, 2002, the first detainees began arriving at Guantanamo Bay, where both
the CIA and DoD had set up interrogation facilities. When the detention center at Guantanamo
opened in January 2002, military and intelligence personnel were assigned to either an
investigative role or an intelligence gathering role. The Criminal Investigation Task Force
(“CITF”), an organization created under the auspices of the Department of Defense, functioned
to maintain security and conduct criminal investigations of suspected terrorists for the purpose of
384

A Military Order of November 13, 2001, classified al Qaeda members and others who engaged in
terrorist activities as individuals who could be detained by the Secretary of Defense and tried in military
commissions. Military Order of November 13, 2001, available at http://fas.org/irp/offdocs/eo/mo111301.htm. The term “enemy combatants” was not used until March 2002. Peter Jan Honisberg, The
Real Origin of the Term ‘Enemy Combatant’, Huffington Post (Jan. 9, 2014), available at
http://www.huffingtonpost.com/peter-jan-honigsberg/the-real-origin-of-the-te_b_4562216.html.
385

Memorandum from President Bush to Vice President Cheney et al., Humane Treatment of Taliban and
al Qaeda Detainees (Feb. 7, 2002), available at
http://www.pegc.us/archive/White_House/bush_memo_20020207_ed.pdf.
386

Id.

387

United States Senate Committee on Armed Services, 110th Cong., Inquiry Into the Treatment of
Detainees in U.S. Custody, 3 (2008) [hereinafter “SASC Report”].

388

Memorandum from John C. Yoo, Deputy Assistant Atty’n Gen., Dep’t of Justice, to William J.
Haynes, Gen. Counsel, DoD, Application of Treaties and Laws to al Qaeda and Taliban Detainees (Jan. 9,
2002).

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bringing them to trial. The CITF, dubbed JTF-160, included members from the Army, Navy,
Marine, and Air Force investigative services and divisions. By contrast, the military personnel
attached to the intelligence mission, dubbed JTF-170, operated at Guantanamo for the purpose of
gathering intelligence to dismantle terrorist networks and prevent additional attacks. 389
A.

Origins of Enhanced Interrogation Techniques

As the CIA and DoD began their detention programs, both agencies turned to the Joint
Personnel Recovery Agency (“JPRA”) for assistance. The JPRA is a military agency run under
the auspices of the Chairman of the Joint Chiefs of Staff to provide education and training
regarding personnel recovery matters. The JPRA runs Survival, Evasion, Resistance, and Escape
(“SERE”) schools designed to train DoD personnel in the skills necessary to survive and evade
enemy capture in hostile climates and to resist the enemy in the event of capture. The segment
of the training focused on resistance exposes students to the physical and psychological methods
of interrogation that might be used by an enemy who does not abide by the Geneva Conventions
as a means of inoculating them against the effects of such techniques in the event of capture. 390
The physical and psychological pressures used at SERE schools include stress positions, sleep
deprivation, abdomen slaps, isolation, degradation, walling, and waterboarding. 391
Psychologists monitor the training programs at SERE schools to ensure that no harm
comes to students. At the Air Force SERE school in Spokane, Washington, James Mitchell and
Bruce Jessen served as psychologists in this role. Sidley’s information about Mitchell and
Jessen’s activities at the SERE school comes from interviews with witnesses who also worked
with the SERE program. One witness described Mitchell and Jessen as a “driving force” at the
center of the SERE program, which originated with the Air Force school. 392 The witness said
that Mitchell was “dogmatic” and introduced new “backward” methods to the curriculum, in
which students would be exposed to interrogation tactics first and then receive instruction and
training only after exposure. 393 Another witness who had worked with Mitchell and Jessen in the
SERE school environment described a “dust up” within the ranks of psychologists around 1999
or 2000 regarding the role of psychologists at the SERE school, prompted by Jessen’s desire to
“play interrogator.” The witness said that many psychologists in the program objected to the
idea that a psychologist would “wear two hats,” as both a monitor of the interrogation and the
interrogator. The witness emphasized that the goal of psychologists at the SERE schools was to
select the best participants and ensure a safe training environment. 394
Bryce LeFever, a psychologist at the Navy SERE school in the 1990s, said that
representatives from the different SERE schools held an annual meeting to discuss and compare
389

SASC Report at 12.

390

Id. at 4.

391

Id. Waterboarding was used as a training technique at only one of the SERE schools, and the practice
ended in 2007.
392

The witness requested that this comment not be attributed to him or her.

393

The witness requested that this comment not be attributed to him or her.

394

Morgan interview (May 29, 2015).

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training methods. LeFever said that, during one of these meetings, he, Mitchell, Jessen, and
another psychologist spent most of a week with Joseph Matarazzo, a former President of the
APA, in Spokane or Colorado Springs. LeFever recalled that Matarazzo was invited by Army
psychologists so that he could assess psychologists’ involvement with the SERE program and
ensure that it was ethical. He stated that Matarazzo’s “ethical test” was whether a person would
be proud of his actions if they were published on the front page of the newspaper. 395 Matarazzo
did not make any specific mention of the Ethics Code, but he indicated that if he could use his
skills as a psychologist to further America’s cause, he would not hesitate to do so. Lefever said
that he completely agreed with Matarazzo’s point of view that psychologists should be proud to
use their skills to defend the nation. 396
Just weeks before the first detainees arrived at Guantanamo and more than a month
before President Bush signed a memorandum denying detainees the protections of the Geneva
Conventions, DoD’s Office of the General Counsel began soliciting information from JPRA
regarding information on detainee “exploitation.” 397 In response to DoD’s request, in February
2002, Jessen circulated to JPRA commander Col. Randy Moulton and other senior JPRA officers
a draft exploitation plan, which incorporated heavily techniques used at the SERE schools. 398
Shortly thereafter, DoD requested additional support, in response to which Jessen and another
JPRA instructor taught a two week “ad hoc ‘crash’ course on interrogation” for a group that
would be sent to Guantanamo as interrogation staff. 399 In April, Jessen drafted and circulated to
Moulton another draft exploitation plan, containing the recommendation that JPRA personnel
remain involved in the detainee exploitation process, which he explained should occur at a
separate facility that was “off limits to non-essential personnel, press, ICRC, or foreign
observers.” 400
Meanwhile, the CIA also turned to JPRA as it began considering interrogation options for
detainees it expected to hold in its custody. In January 2002, the CIA’s Office of Technical
Services (“OTS”) commissioned a report from Mitchell and Jessen titled “Recognizing and
Developing Countermeasures to Al-Qa’ida Resistance to Interrogation Techniques: A Resistance
training Perspective,” 401 which related to the al Qaeda manual that the CIA believed to include
descriptions of strategies to resist interrogations. 402

395

Lefever interview (May 3, 2015).

396

Id.

397

SASC Report at 3–4.

398

Id. at 7.

399

Id. at 8.

400

Id. at 14.

401

Central Intelligence Agency, Inspector General, Special Review: Counterterrorism Detention and
Interrogation Activities (September 2001–October 2003), 13 (2004) [hereinafter “CIAIG Report”].

402

Senate Select Committee on Intelligence, Committee Study of the Central Intelligence Agency’s
Detention and Interrogation Program, 113th Congress, 20–21 (2014) [hereinafter “SSCI Report”].

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Shortly after preparing their report, Mitchell and Jessen attended a lecture given by
Martin Seligman at the Navy SERE school in San Diego on May 17, 2002. 403 Seligman
explained that Kirk Hubbard had invited him to the program, where he “lectured to about 100
people on how captured American personnel could use what is known about learned helplessness
to resist, evade, and escape captivity and interrogation.” 404 Seligman said that he was not
permitted to attend any other sessions at the event, and when he asked two former police
interrogators who had transferred to the DoD about their methods, he was told that they could
not share any information with him because he was a civilian and lacked security clearance. 405
Hubbard confirmed that he invited Seligman to the conference during a meeting with Mitchell
and Jessen on April 3, 2002. 406 Although Seligman could not indpendently recall any meetings
with Mitchell and Jessen other than a December 2001 conference at his home and the May 2002
JPRA-sponsored lecture, 407 he said that if such a meeting had occurred, he assumed they would
have discussed his theory of learned helplessness in the context of captured American personnel,
but not as a means of interrogating detainees. 408 Hubbard confirmed that Mitchell expressed
interest in Seligman’s theories of learned helplessness and positive psychology, but that they did
not speak with Seligman about interrogations directly at any point. 409
B.

The First Application of Enhanced Interrogation Techniques

On March 28, 2002, Abu Zubaydah was captured in Pakistan and subsequently rendered
to a CIA black site in Thailand. Initially, Zubaydah was held in a hospital facility, where he was
questioned by special agents from the FBI. Though Zubaydah appeared to be cooperating with
the agents, the CIA’s CTC and OTS soon began proposing more aggressive tactics, including
coercive physical techniques. 410 The CIA contracted with James Mitchell to consult on
psychological aspects of the interrogation and to “provide real-time recommendations to
overcome Abu Zubaydah’s resistance to interrogation.” 411 By mid-April, the CIA had taken
control of the interrogation and begun implementing a plan developed by the psychological
team. 412 At the end of April, the interrogation team proposed three alternative interrogation
plans to CIA Headquarters, and Headquarters approved the most coercive of the three plans, the
one supported by Mitchell. 413
403

Jane Mayer, The Dark Side: The Inside Story of How the War on Terror Turned into a War on
American Ideals, 164 (2008).
404

Email from Seligman to Sidley (May 19, 2015).

405

Email from Seligman to Sidley (June 13, 2015).

406

Email from Seligman to Sidley (June 21, 2015); Email from Hubbard to Sidley (June 24, 2015).

407

Email from Seligman to Sidley (June 13, 2015).

408

Email from Seligman to Sidley (June 18, 2015).

409

Hubbard interview (May 5, 2015); Email from Seligman to Sidley (June 21, 2015).

410

SSCI Report at 26; CIAIG Report at 3.

411

SSCI Report at 25–26.

412

Id. at 27.

413

Id. at 30.

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In July 2002, Mitchell joined Jessen, who had recently retired from the Department of
Defense, 414 and other former JPRA officials to form Mitchell Jessen & Associates. The CIA
soon contracted with the newly formed company to support the CIA’s fledgling interrogation
program. 415 Mitchell and Jessen’s roles under the contract initially included conducting
interrogations, assessing the detainees’ fitness for interrogations, and assessing the effectiveness
of particular interrogation techniques, but in May 2004 the CIA’s policy changed and thereafter
Mitchell and Jessen acted only as interrogators.416 Mitchell said that he and Jessen never intended to
study the effectiveness of the techniques themselves, but rather that their role was “to find and
pay an independent researcher, not involved with the program, to do the work.” 417 Mitchell
explained that they never fulfilled the part of the contract calling for an evaluation of the
effectiveness of the program, because the contract was terminated. 418
During July, Mitchell proposed that the CIA should begin using twelve interrogation
techniques derived from SERE training, including the attention grasp, walling, facial hold, facial
slap, cramped confinement, wall standing, stress positions, sleep deprivation, waterboard, use of
diapers, use of insects, and mock burial. 419 The CIA’s OTS obtained data from several
psychologists and other academics with expertise in psychopathology and from JPRA on the
“potential long-term psychological effects on detainees” of using the proposed techniques. 420 On
August 3, CIA Headquarters formally approved the use of a set of ten techniques proposed by
Mitchell, including use of the waterboard, “subject to a competent evaluation of the medical and
psychological state of the detainee.” 421 Over the next three weeks, Mitchell and Jessen subjected
Zubaydah to the enhanced interrogation techniques on a daily basis. 422 Among other techniques,
interrogators caged Zubaydah in small boxes, placed him in stress positions, deprived him of
sleep, and waterboarded him several times each day. 423 FBI agents present for the interrogation
objected that such techniques were “borderline torture,” and FBI Director Robert Mueller
subsequently ordered that FBI agents would not participate in interrogations using techniques
that were not permitted in domestic investigations. 424

414

SASC Report at 23–24.

415

Id. at 24.

416

Memorandum from John Brennan, Director, Central Intelligence Agency, to Sen. Dianne Feinstein and
Sen. Saxby Chambliss, CIA Comments on the Senate Select Committee on Intelligence Report on the
Rendition, Detention, and Interrogation Program (June 27, 2013).
417

Email from Mitchell to Sidley (May 31, 2015).

418

Id.

419

SSCI Report at 32.

420

CIAIG Report at 14.

421

Id.

422

SSCI Report at 40.

423

Id. at 40–44.

424

SASC Report at 19.

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At the conclusion of Zubaydah’s interrogation, the CIA considered it a success and
recommended that the plan, in which psychologists “shape[d] compliance of high value captives
prior to debriefing by substantive experts,” be used as a template for future interrogations. 425
Shortly thereafter, interrogation operations based on Mitchell and Jessen’s plans began
expanding to other CIA black sites. 426
Throughout the summer and fall of 2002, JPRA continued to support interrogator training
efforts for both the CIA and DoD. JPRA developed a training program for the CIA that included
demonstrations of the physical pressures used at SERE schools, including body slaps, face slaps,
hooding, stress positions, walling, immersion in water, stripping, isolation, and sleep
deprivation, 427 and on July 1 and 2, JPRA instructors facilitated a two-day training based on this
program. 428 The July training also included instruction on waterboarding. 429 In June and July
2002, the Chief of Staff of JPRA also worked with Army Special Operations Command’s
Psychological Directorate to “develop[] a plan designed to teach interrogators how to exploit
high value detainees.” 430
C.

Legal Guidance

On August 1, 2002, the Office of Legal Counsel produced a pair of memoranda directed
to Alberto R. Gonzales, Counsel to the President, assessing the standards for conducting
interrogations under 18 U.S.C. §§ 2340-2340A 431 and applying the analysis to an interrogation
plan for a specific detainee. 432 The first memorandum defined torture in narrow terms:
Physical pain amounting to torture must be equivalent in intensity to the pain
accompanying serious physical injury, such as organ failure, impairment of bodily
function, or even death. For purely mental pain or suffering to amount to torture
under Section 2340, it must result in significant psychological harm of significant
duration, e.g., lasting for months or even years. 433

425

SSCI Report at 46.

426

Id. at 49–53.

427

SASC Report at 21.

428

Id. at 22.

429

Id.

430

Office of the Inspector General of the Department of Defense, Review of DoD-Directed Investigations
of Detainee Abuse, 25 (2006) [hereinafter “DODIG Report”].
431

In combination, Sections 2340 and 2340A criminalize “an act committed by a person acting under the
color of state law specifically intended to inflict severe physical or mental pain or suffering . . . upon
another person within his custody or physical control.”
432

Memorandum from Jay Bybee, Assistant Att’y Gen., Dep’t of Justice, to Alberto Gonzales, Counsel to
the President, Interrogation of Abu Zubaydah (Aug. 1, 2002).
433

Memorandum from Jay Bybee, Assistant Att’y Gen., Dep’t of Justice, to Alberto Gonzales, Counsel to
the President, Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340–2340A (Aug. 1, 2002).

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The scope of the statute narrowed even further under the memorandum’s analysis of
specific intent, which required that, to torture, an individual must “act[] with the express purpose
of inflicting severe pain or suffering.” Thus, if an individual held a “good faith belief” that his
conduct would not produce severe pain or suffering, specific intent was negated. This good faith
belief might be shown by an individual “taking such steps as surveying professional literature,
consulting with experts, or reviewing evidence gained from past experience.”
Furthermore, the memorandum concluded, even if the interrogation activities violated
Section 2340, the application of Section 2340A to interrogations of enemy combatants might
represent an unconstitutional infringement of the President’s Commander in Chief powers. At
the time that the OLC prepared this memorandum, its authors Jay Bybee and John Yoo had seen
an assessment of the psychological effects of military resistance training and had “used that
assessment to inform” the opinion. 434
At an August 12 meeting, shortly after the Department of Justice issued the two
memoranda offering guidance on the legality of the interrogation program, JPRA created a
special program to limit distribution of information related to JPRA’s “sensitive activities” in
support of interrogations. 435 As the CIA continued to consult with DOJ on the expanded use of
enhanced interrogation techniques, a supplementary document was produced that both confirmed
the OLC’s previous conclusions regarding the torture statute and came to similar conclusions
with respect to the federal War Crimes Act and the Fifth, Eighth, and Fourteenth Amendments.
The CIA interpreted this subsequent analysis as an agreement from DOJ that the legal opinions
embodied in the August 2002 memoranda extended beyond the specific conditions described in
those opinions. 436
D.

Behavioral Science Consultation Teams

As Mitchell and Jessen worked with the CIA and DoD to develop exploitation plans,
Maj. Gen. Michael Dunlavey, commander at Guantanamo, requested a team of psychologists and
other mental health professionals to facilitate interrogations at the detention site. These teams of
psychologists and psychiatrists were called Behavioral Science Consultation Teams (“BSCT”).
The concept of a BSCT had originated in the Naval Criminal Investigative Service
(“NCIS”). Michael Gelles, Chief Psychologist of NCIS, had developed a behavioral science
consultation team to guide the CITF at Guantanamo in understanding the individuals against
whom they intended to bring criminal charges. 437 Dunlavey adopted Gelles’s term but
significantly altered the role that such a team would play. Instead of working with a law
enforcement team behind the scenes to enhance understanding of a detainee’s cultural and
personal background, the Guantanamo BSCT psychologists and psychiatrists would work in the
interrogation room to assist interrogators in breaking through a detainee’s defenses and
434

SASC Report at xvi.

435

Id. at 38.

436

CIAIG Report at 22–23.

437

Jane Mayer, The Dark Side: The Inside Story of How the War on Terror Turned into a War on
American Ideals, 195–96 (2008).

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extracting information. 438 Morgan Banks, the Chief of the Psychological Applications
Directorate in the Army Special Operations Command and senior Army SERE Psychologist,
stated that he was not consulted when the BSCT was established. 439
In July 2002, psychologist Maj. John Leso, psychiatrist Maj. Paul Burney, and a
psychiatric technician, arrived at Guantanamo. They had expected to serve as healthcare
providers to servicemen suffering from combat stress, but upon their arrival they were assigned
as the first BSCT. When they landed at Guantanamo, neither Leso nor Burney had training or
experience in interrogations or intelligence gathering. 440 Indeed, one witness commented that, at
the time, no training programs had been developed for psychologists deployed to Guantanamo,
and they were expected to get their training “on the job.” 441
Another witness described a general state of confusion at the time regarding which roles
psychologists should play in interrogations. Because military psychologists had, prior to this
point, primarily worked in a clinical assessment context, the witness explained that there were
very few active duty psychologists with training or experience in supporting interrogations to
provide guidance. 442
The BSCT soon reached out to Banks for guidance on how to support the intelligence
mission. 443 Banks said that he recognized that the Army had very little institutional knowledge
regarding interrogations at that point, and he thought it was important that psychologists working
to support interrogations have SERE training so that they would recognize the danger of the
power differential between detainees and guards. He thought that psychologists could make
significant contributions to the intelligence mission, both by preventing abuse and by enhancing
the effectiveness of interrogations. 444
Banks requested assistance from JPRA in organizing training for the Guantanamo
BSCT.
At this point, JPRA was already developing an exploitation and interrogation training
program, which included instruction on the physical and psychological pressures used at the
SERE schools. 446 After JPRA agreed to modify its planned training sessions to suit BSCTs,
Banks invited Leso and other interrogation personnel to attend the training. 447
445

438

Id. at 196.

439

Banks interview (May 21, 2015).

440

SASC Report at 39.

441

Dunivin interview (May 20, 2015).

442

Morgan interview (May 29, 2015).

443

SASC Report at 39.

444

Banks interview (May 21, 2015).

445

SASC Report at 40.

446

Id. at 25–30.

447

Larry C. James, Fixing Hell: An Army Psychologist Confronts Abu Ghraib, 22 (2008).

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In August 2002, the Chairman of the Joint Chiefs of Staff completed a review of the
Guantanamo interrogation program, which recommended that the FBI Behavioral Science Unit,
Army BSCT, Southern Command Psychological Operations Support Element, and JTF-170
clinical psychologist “develop a plan to exploit detainee vulnerabilities.” As part of this process,
Dunlavey considered SERE training techniques as “possible DoD interrogation alternatives.” 448
On September 16, 2002, the Army Special Operations Command and JPRA co-hosted a
SERE psychologist conference at Fort Bragg for interrogation personnel and the BSCT
responsible for facilitating interrogations at Guantanamo. 449 The Director of Intelligence at
Guantanamo approved the trip with the expectation that the BSCT would learn about techniques
that could be used in interrogations. 450 The training program included a briefing on the
exploitation techniques used to increase resistance at SERE schools. 451 Although Banks stated
that he did not think that SERE resistance concepts and physical pressures were taught during
this conference, Burney said that he discussed with Banks Guantanamo command’s interest in
obtaining a list of techniques. 452 In light of Banks’s professed belief that interrogation support
personnel should receive SERE training, it seems likely that Banks was aware when he
organized the training that participants would become familiar with the SERE resistance training
techniques, including physical pressures.
E.

Guantanamo Request for Authorization to Use SERE-Based Interrogation
Techniques

Shortly after Burney and Leso returned from training at Fort Bragg, Dunlavey directed
his staff to draft a request to the Southern Command for the authority to use additional
interrogation techniques at Guantanamo. 453 Lt. Col. Jerald Phifer instructed the BSCT team to
“draft an interrogation policy that could be formally submitted up the chain of command for
review.” 454 Banks stated that it was his impression that Leso and Burney were under enormous
pressure from their superiors to produce a memo requesting authorization for harsh interrogation
methods, 455 and Burney has testified that there was pressure from the command to get “tougher”
and use more coercive techniques. 456
Leso and Burney prepared a memorandum listing proposed interrogation techniques,
many of which they had learned of or observed during their Fort Bragg SERE training. 457 The
448

DODIG Report at 25.

449

SASC Report at 38; DODIG Report at 25.

450

SASC Report at 40.

451

DODIG Report at 25.

452

SASC Report at 40.

453

Id. at 50.

454

Id.

455

Banks interview (May 21, 2015).

456

SASC Report at 50.

457

Id. at 51–52.

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memo delineated three categories of interrogation techniques, as decribed in the Senate Armed
Services Committee’s 2008 report:
Category I techniques included incentives and “mildly adverse approaches” such
as telling a detainee that he was going to be at GTMO forever unless he
cooperated. . . .
Category II techniques were designed for “high priority” detainees, defined in the
memo as “any detainee suspected of having significant information relative to the
security of the United States.” Category II techniques included stress positions;
the use of isolation for up to 30 days (with the possibility of additional 30 day
periods, if authorized by the Chief Interrogator); depriving a detainee of food for
up to 12 hours (or as long as the interrogator goes without food during an
interrogation); the use of back-to-back 20 hour interrogations once per week;
removal of all comfort items including religious items; forced grooming;
handcuffing a detainee; and placing a hood on a detainee during questioning or
movement.
The memo reserved Category III techniques “ONLY for detainees that have
evidenced advanced resistance and are suspected of having significant
information pertinent to national security.” Category III techniques included the
daily use of 20 hour interrogations; the use of strict isolation without the right of
visitation by treating medical professionals or the International Committee of the
Red Cross (ICRC); the use of food restriction for 24 hours once a week; the use of
scenarios designed to convince the detainee he might experience a painful or fatal
outcome; non-injurious physical consequences; removal of clothing; and exposure
to cold weather or water until such time as the detainee began to shiver. 458
Leso and Burney also included a statement reflecting their concerns that “[p]hysical and/or
emotional harm from the above techniques may emerge months or even years after their use,”
and “[i]nterrogation techniques that rely on physical or adverse consequences are likely to garner
inaccurate information and create an increased level of resistance.” 459
Leso and Burney shared the memo with Banks, who “praised the BSCT for their ‘great
job’ on the memo,” but raised concerns regarding the “physical pressures” recommended in the
memo because such pressures were used in SERE training to increase rather than break down
resistance to interrogation:
The use of physical pressures brings with it a large number of potential negative
side effects. . . When individuals are gradually exposed to increasing levels of
discomfort, it is more common for them to resist harder. . . . Bottom line: The
likelihood that the use of physical pressures will increase the delivery of accurate
information from a detainee is very low. The likelihood that the use of physical
pressure will increase the level of resistance in a detainee is very high. . .
458

Id. (emphasis in original).

459

Id. at 52.

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My strong recommendation is that you do not use physical pressures. . . . [If
GTMO does decide to use them] you are taking a substantial risk, with very
limited benefit.” 460
Sidley’s only evidence of additional communications and thoughts related to this
memorandum, not included in the Senate Armed Services Committee’s report, comes from
interviews with Morgan Banks and Larry James. James said that, despite producing the memo,
Leso continued to work to convince the chain of command that interrogations based on rapportbuilding were superior to abusive tactics. 461 Banks agreed that Leso continued to communicate
with him to find ways to combat his commander’s instruction to develop coercive techniques. 462
However, it seems likely that Banks’s condemnation of the techniques listed in the BSCT
memo is less sweeping than it first appears. Banks explained that, in the SERE community,
“physical pressure” is a term used in contrast to “psychological pressure.” He added that, by
using the term physical pressures, he was not approving of the use of psychological pressures. 463
However, his explanation seems odd, given that he identified the vast majority of the techniques
identified in the BSCT memorandum as psychological pressures. 464 Banks went on to explain
that it is more difficult to define when psychological pressures are impermissible because a
psychologist would need to assess whether such a technique would be safe, legal, ethical, and
effective. For example, Banks thought that the use of stress positions might or might not be
permissible depending on whether it was safe under the circumstances. 465 Therefore, Banks’s
email, when read in context, recommends against the use of only those few techniques that
qualify as “physical pressures,” and could have been read as an implicit endorsement of the
majority of the techniques listed in the BSCT memo.
On October 2, Guantanamo staff convened a meeting with Jonathan Fredman, Chief
Counsel to the CIA’s Counterterrorism Center (“CTC”). The BSCT provided a briefing on the
Fort Bragg training, describing psychological stressors such as sleep deprivation and isolation as
“extremely effective.” 466 Fredman concluded that all of the techniques listed in the BSCT memo
were legal, 467 and Guantanamo staff prepared a memorandum heavily based on the BSCT memo
to be submitted to the Secretary of Defense for approval. 468
460

Id. at 53 (ellipses in original).

461

James interview (May 1, 2015).

462

Banks interview (May 21, 2015).

463

Id.

464

Banks did not think that any of the techniques described in the memo written by Leso and Burney, as
described in the 2008 report of the Senate Armed Services Committee report, were “physical pressures,”
aside from the application of cold water to the point of shivering and possibly stress positions, but only
under some circumstances. Id.
465

Id.

466

SASC Report at 54.

467

Id. at 55.

468

Id. at 62.

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On December 2, 2002, Secretary of Defense Donald Rumsfeldauthorized the use of all
techniques listed in Categories I and II and one of the techniques listed in Category III, “the use
of mild, non-injurious physical contact,” for interrogations of detainees at Guantanamo Bay. 469
Rumsfeld’s authorization arguably permitted activities that run afoul of Army Regulation
190-8 (“AR 190-8”), made effective in 1997, which established policies and guidance for the
treatment of prisoners of war and detainees. AR 190-8, which is Army policy, requires that all
persons captured and held in the custody of the United States Armed Forces during an armed
conflict receive humane treatment consistent with the Geneva Conventions. 470 Banks said that
this policy made clear to him that the Geneva Convention protections applied to all detainees
held by the Department of Defense at Guantanamo. He explained that, as soon as he realized
that the Army was holding detainees, he reviewed AR 190-8 with a Judge Advocate General
(“JAG”), and that they arrived at this conclusion together. However, Banks conceded that AR
190-8 is merely policy that can be superseded by an order of the Secretary of Defense, such as
the authorization provided on December 2, 2002. He explained that, in the event of a conflict,
individuals in the military would be required to follow an order from the Secretary in
contravention of AR 190-8. 471 Thus, it is unlikely that AR 190-8 was an effective shield for
detainees held at Guantanamo Bay.
F.

Enhanced Interrogations at Guantanamo

In November 2002, Maj. Gen. Geoffrey Miller replaced Dunlavey as commander of the
intelligence mission at Guantanamo. Miller quickly approved an interrogation plan for
Mohammed al Qahtani, the alleged “20th hijacker” in the 9/11 attacks, that utilized the newly
approved 472 enhanced interrogation techniques, based on the memo drafted by the Guantanamo
BSCT. 473
As the interrogation of al Qahtani began on November 23, members of the BSCT were
present to observe and assist interrogators. A log of the al Qahtani interrogation reveals that
Leso participated directly at several points, including by recommending that al Qahtani be placed
in a swivel chair “to keep him awake and stop him from fixing his eyes on one spot in [the]
booth.” An unidentified BSCT also observed at various times that al Qahtani was lying or trying
to gain sympathy. 474 James said that it was not clear whether this unidentified BSCT was Leso
because there were around ten psychologists at Guantanamo at the time; he conceded, however,
469

Action memorandum from William J. Haynes, Gen. Counsel, DoD, to Donald Rumsfeld, Sec. of Dep.,
DoD, Counter-Resistance Techniques (Nov. 27, 2002).
470

Army Regulation 190-8, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other
Detainees, 2 (Oct. 1, 1997).
471

Banks interview (May 21, 2015).

472

Guantanamo command received official approval to use the enhanced techniques described in the
memo drafted by Leso and Burney on December 2, more than a week after the al Qahtani interrogation
began on November 23. SASC Report at 87.

473

Id. at 74.

474

Interrogation Log Detainee 063, available at http://content.time.com/time/2006/log/log.pdf.

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that based on the timing and the small size of the BSCT team, comprised only of Leso, Burney,
and one or two psychological technicians, it was likely that Leso was the BSCT described in the
interrogation log. 475 Gen. James Hill later confirmed that Guantanamo interrogators were
“working with behavioral scientists,” when they applied the enhanced techniques. 476
Sidley was unable to speak with Leso, and thus our knowledge of the circumstances of
this interrogation come only from the report of the Senate Armed Services Committee and
witnesses who knew Leso. James said that the al Qahtani interrogation was directed by a highranking officer, and that Leso had no legal authority to stop the interrogation. 477 Moreover, he
explained that Leso was young and inexperienced, and had no knowledge regarding how to
oppose an order that had been approved by officials in the offices of the Attorney General and
Secretary of Defense. By focusing on the circumstances of Leso’s involvement, James
attempted to absolve Leso of responsibility for his actions. This attitude echoes that of the APA
staff who adjudicated the complaints filed against Leso after the al Qahtani interrogation log
came to light, who also excused Leso’s participation in the interrogation because of his youth
and inexperience.
Throughout the fall of 2002, JPRA continued to provide training support to both DoD
and CIA. In October, JPRA developed a training session for Guantanamo interrogators that was
nearly identical to the agenda developed for the Fort Bragg training from September, including
instruction on the use of physical pressures. 478 In November 2002, the CIA’s Counterterrorism
Center, with assistance from JPRA, initiated an Interrogator Training Course designed to train,
qualify, and certify individuals as CIA interrogators. 479 On December 30 and 31, two SERE
instructors traveled to Guantanamo to conduct enhanced interrogation technique training. 480
G.

Growing Opposition to the Enhanced Interrogation Program

As the interrogation program moved forward, FBI and CITF personnel stationed at
Guantanamo began to voice concerns about the abusive tactics rumored to be inflicted on the
detainees in CIA custody. These concerns intensified and moved further up the chain of
command throughout the fall. On December 18, 2002, after hearing allegations that prisoner
abuses were occurring at Guantanamo, Alberto Mora, General Counsel of the Navy, met with
subordinates David Brant, Director of the NCIS, and Michael Gelles, NCIS’s Chief Psychologist.
Mora confirmed with his counterpart in the Army, which had operational responsibility for
Guantanamo detainees, that the abusive practices were authorized by Secretary of Defense
Rumsfeld, before confronting William Haynes, DoD’s General Counsel, with his concerns.
Mora initially assumed that Rumsfeld would reverse his authorization of these techniques, but

475

James interview (May 1, 2015).

476

SASC Report at 66.

477

James interview (May 1, 2015).

478

SASC Report at 72.

479

SSCI Report at 58.

480

SASC Report at 103.

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when Mora continued to hear reports of the abusive tactics several weeks later, he again
confronted Haynes.
On January 15, 2003, Mora prepared a memorandum concluding that the majority of the
tactics that had been approved by Rumsfeld constituted cruel and unusual treatment or torture.
He threatened to sign and circulate the memorandum that day unless he heard that the use of the
interrogation techniques would be halted. By the afternoon, Haynes had confirmed that
Rumsfeld had suspended his authorization for the techniques. 481
Following the suspension, Rumsfeld established a working group of military and civilian
lawyers to review the techniques. Before the working group could draw conclusions, however,
their review was circumvented by a memorandum from John Yoo in OLC that constrained the
group’s ability to independently assess the legality of many of the proposed interrogation
techniques. 482 While strongly objecting to the restrictions imposed by the OLC memorandum,
the working group nonetheless produced a draft report that concluded that many of the originally
approved techniques were legal. Mora cautioned Haynes, however, that the report was deeply
flawed because of its reliance on the OLC memorandum, and recommended that the report be
kept in draft form. 483 Despite Mora’s warning, in April 2003 Rumsfeld signed the draft report of
the working group, without the knowledge of its members, and once again authorized the use of
enhanced interrogation techniques at Guantanamo. 484
Shortly thereafter, on April 16, Rumsfeld issued a DoD Directive regarding CounterResistance Techniques in the War on Terrorism, which approved the use of a set of twenty-four
techniques in the interrogations of unlawful combatants held at Guantanamo Bay. Among the
approved techniques were “sleep adjustment,” which the Directive explicitly noted was “NOT
sleep deprivation”; environmental manipulation, which the Directive explained could be
considered inhumane in some countries; dietary manipulation; and many specific methods of
questioning. Four of these techniques—incentives or removal of incentives, including religious
items; pride and ego down; “Mutt and Jeff” or good cop-bad cop teams; and isolation—required
that an interrogator assess whether the use of the technique is required by military necessity and
give advance notification to the Secretary of Defense. These four techniques were identified as
potentially inconsistent with the Geneva Convention protections applicable to prisoners of
war. 485
481

Memorandum from Alberto J. Mora, Gen. Counsel, Dep’t of the Navy, to Inspector Gen., Dep’t of the
Navy Statement for the Record: Office of General Counsel Involvement in Interrogation Issues (July 7,
2004) [hereinafter “Mora Memorandum”].
482

Memorandum from John C. Yoo, Deputy Assistant Att’y Gen., Dep’t of Justice, to William J. Haynes,
Gen. Counsel, DoD, Military Interrogation of Alien Unlawful Combatants Held Outside the United States
(Mar. 14, 2003). This memorandum reiterated much of the analysis from the August 2002 memoranda.
483

Mora Memorandum.

484

SASC Report at 130–32.

485

Memorandum from Donald Rumsfeld, Sec. of Def., to the Commander, US Southern Command
Counter-Resistance Techniques in the War on Terrorism (Apr. 16, 2003), available at
http://nsarchive.gwu.edu/NSAEBB/NSAEBB127/03.04.16.pdf.

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After Rumsfeld’s re-authorization, interrogators resumed the use of enhanced techniques
at Guantanamo. 486 In June 2003, the Department of Defense issued a statement to Senator
Patrick Leahy asserting that all interrogations, “wherever they may occur,” are consistent with
the U.S. Constitution. 487
In the first several months of 2003, detention facilities in Iraq and Afghanistan also began
developing interrogation policies that incorporated many of the enhanced techniques first
approved for use at Guantanamo. 488 In August, a team from the Guantanamo Joint Task Force
visited Iraq to conduct an assessment of the interrogation operations within Central Command’s
area of responsibility. Although the Iraq Survey Group, charged with conducting the search for
weapons of mass destruction in Iraq, did not fully accept the “hard line approach” recommended
by the assessment team, the Combined Joint Task Force-7, charged with coordinating all military
operations in Iraq, did incorporate some of the techniques recommended by the Guantanamo
assessment team into its policies and procedures. 489 In September 2003, JPRA also sent a
delegation to Iraq to provide “offensive” SERE training to the Special Mission Unit Task Force,
which conducted interrogations of detainees deemed to be high value targets. 490 While in Iraq,
the JPRA team was authorized to participate directly in interrogations and to use the full range of
SERE school physical pressures. 491 When friction began to develop between the JPRA team and
the Task Force staff regarding whether SERE techniques complied with the Geneva
Conventions, the decision was made to pull the JPRA delegation out. 492 However, the visit of
the JPRA team, in combination with the dissemination of the working group report and the visit
of the team from the Guantanamo Joint Task Force, was sufficient to introduce many of the
enhanced tactics to interrogation operations in Iraq.
H.

Continued Involvement of Mitchell and Jessen

During 2002 and 2003, as Mitchell and Jessen continued to facilitate interrogations at
CIA black sites, concerns related to their dual roles as interrogators and psychological evaluators
emerged. Mitchell stated that neither he nor Jessen ever performed a fitness for assessment
evaluation on a detainee that they subsequently interrogated. 493 However, the Senate Select
Committee on Intelligence found evidence suggesting otherwise. In January 2003, Jessen
traveled to a CIA black site to assess the suitability of continuing to use enhanced interrogations
against Abd al-Rahim al-Nashiri, whom two interrogators had deemed cooperative. 494 At least
one person raised concerns about Jessen both conducting the psychological interrogation
486

SASC Report at 138, 143–46.

487

Mora Memorandum.

488

SASC Report at 154–58.

489

DODIG Report at 27.

490

SASC Report at 170.

491

Id. at 174.

492

DODIG Report at 28.

493

Email from Mitchell to Sidley (May 31, 2015).

494

SSCI Report at 71.

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assessment and carrying out the interrogation. 495 In June 2003, Mitchell and Jessen were
deployed to a black site, where Khalid Sheikh Mohammed was held, to interrogate Mohammed
and “assess [his] ‘psychological stability’ and ‘resistance posture.’” 496 During this interrogation,
Mohammed was waterboarded at least 183 times over the course of fifteen separate sessions. 497
A psychologist in the CIA’s Office of Medical Services (“OMS”) objected to the conflict of
interest presented by this dual role, and stated that “no professional in the field would credit
[Mitchell and Jessen’s] later judgments as psychologists assessing the subjects of their enhanced
measures.” 498
Throughout 2003 and early 2004, the CIA continued to take detainees into custody at
various detention facilities and to subject them to enhanced interrogation techniques, at times
without authorization from CIA Headquarters or in ways that diverged from the authorization. 499
On July 29, 2003, the CIA secured oral concurrence from the Department of Justice that “certain
deviations are not significant” to the analysis underlying the OLC legal opinions. 500
In early 2003, the CIA’s Office of the General Counsel began to express concerns to
National Security Council, White House, and DOJ personnel that the Bush Administration’s
statements about the “humane” treatment of detainees might be inconsistent with the CIA’s
interrogation program. 501 The CIA began to discuss with personnel from DOJ, DoD, and the
White House whether they could represent that the treatment of detainees complied with
constitutional standards in the Fifth, Eighth, and Fourteenth Amendments, and in June the
General Counsel of DoD represented to Senator Patrick Leahy that it was U.S. policy to comply
with these standards. 502 In July 2003, as the White House continued to make statements
indicating that detainees received “humane” treatment, the CIA asked for a reaffirmation of
support for the CIA’s policy of using enhanced interrogation techniques. While the request was
pending, the CIA began using only “standard” interrogation techniques, which according to the
CIA did not involve “significant physical or psychological pressure,” 503 rather than enhanced
interrogation techniques. 504 The National Security Council did not consider it necessary to have
a full Principals Meeting to reaffirm the program. 505
495

Id. at 72.

496

Id. at 65.

497

Id. at 85.

498

Id. at 65-66.

499

Id. at 96-105.

500

CIAIG Report at 5.

501

SSCI Report at 115.

502

Id. at 116.

503

CIAIG Report at 30. Many of the “standard” techniques—sleep deprivation not to exceed 72 hours,
use of loud music or white noise, use of diapering not to exceed 72 hours, and others—were merely less
severe forms of the “enhanced” techniques.
504

SSCI Report at 116.

505

Id. at 118.

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In January 2004, under pressure from the ICRC, the CIA reduced the number of detainees
held in its custody by transferring 25 to the custody of the U.S. military or foreign governments
and releasing an additional five detainees. 506 Several months later, Deputy Secretary of Defense
Paul Wolfowitz refused to support the CIA’s position that continuing to conceal detainees from
the ICRC was a national security imperative, and instead believed that it was appropriate to give
the ICRC full notification regarding the detainees held in CIA custody. 507
Meanwhile, the CIA Inspector General began circulating a draft of a Special Review of
the CIA’s Detention and Interrogation Program, finalized in May 2004. The Special Review
identified several matters of concern, including divergences between the techniques authorized
and their use in practice, 508 the use of unauthorized techniques, and oversight problems. 509 The
Special Review report also recommended that the CIA conduct a review of the effectiveness of
the CIA’s interrogation techniques. The Inspector General clarified that the recommendation did
not contemplate the CIA engaging in “additional, guinea pig research on human beings. What
we are recommending is that the Agency undertake a careful review of its experience to date in
using the various techniques and that it draw conclusions about their safety, effectiveness, etc.,
that can guide CIA officers as we move ahead.” 510 When National Security Advisor Condoleeza
Rice posed similar questions to the CIA about the effectiveness of the enhanced techniques in
November and December 2004, the CIA responded that “an effectiveness review was not
possible.” 511 In March 2005, the Director of the CIA’s CTC proposed establishing a “blue
ribbon commission” to study the enhanced interrogation technique program, but the commission
concluded that there was no objective way to assess the efficacy of the interrogation techniques
used by the CIA. 512
In May 2004, at around the same time that the CIA’s Inspector General issued his report
and shortly after reports of abuses at Abu Ghraib became public, the Office of Legal Counsel
informed the CIA that it had never formally opined on the constitutionality of the CIA’s
enhanced interrogation techniques, and expressed concern that the CIA’s practices diverged from
the techniques described in the August 1, 2002 memorandum. 513 In late May, CIA Director
506

Id. at 119.

507

Id. at 120.

508

The Special Review took particular note that interrogators were employing the waterboard technique
in a manner different from the authorization provided in the OLC memoranda, which was based on SERE
training. The report documented that interrogators obstructed detainees’ airflow by applying large
volumes of water to the detainee’s mouth and nose in an attempt to make the experience “more poignant
and convincing” or applied the technique a large number of times. CIAIG Report at 37, 44. The
Inspector General’s report did not conclude whether the waterboard technique had been effective, though
it noted that the detainees subjected to waterboarding were cooperative following the experience. Id. at
90-91.
509

SSCI Report at 123.

510

Id. at 126.

511

Id.

512

Id. at 127-28.

513

Id. at 134-35.

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George Tenet suspended the CIA’s use of both “enhanced” and “standard” interrogation
techniques, pending approval from the OLC. 514
On June 4, 2004, after DOJ refused to render a written opinion confirming that the CIA
interrogation program remained legal, CIA Director George Tenet directed an immediate
suspension of the use of interrogation techniques against detainees. 515 Nonetheless, the CIA
continued to seek approval for the use enhanced techniques against specific detainees. In July,
the National Security Council granted approval for the use of enhanced interrogation methods,
with the exception of waterboarding, against a member of al Qaeda suspected to have knowledge
of plans to bomb key targets during the 2004 presidential election. 516 In addition to that
detainee, the CIA sought and was granted approval to use enhanced techniques against two other
detainees during the remainder of 2004. 517 In 2005, the CIA continued to use enhanced
interrogation techniques against detainees on an individualized basis. For example, in May
2005, CIA Director Porter Goss approved the use of enhanced interrogation techniques against a
detainee suspected of holding the third most important position in al Qaeda. 518 In September, the
CIA took custody of two additional detainees from the DoD, and used enhanced techniques
during their interrogations. 519 However, beginning in the fall of 2004, the pace of CIA
interrogations slowed as the CIA began considering an “end game” to relieving itself of detainee
custody. 520 In May 2005, the CIA again suspended use of enhanced interrogation techniques,
and in February 2006, the Agency informed the National Security Council that it would not seek
continued use of all of its techniques. 521
Between 2005 and January 2009, when President Obama rescinded authorization for the
use of enhanced techniques, the CIA took custody of only six new detainees. 522 In early January
2006, Secretary of Defense Donald Rumsfeld made the formal decision not to accept additional
CIA detainees at the Guantanamo Bay military base, 523 and by September 2006, the CIA had
transferred all detainees remaining in its custody to either third party countries or DoD
custody. 524 However, after that point, the CIA continued to accept custody of a small number of
detainees, 525 and in spring 2007, after passage of the Military Commissions Act, the CIA
developed a modified enhanced interrogation program for use on the few detainees remaining in
514

Id. at 135.

515

Id.

516

Id. at 135-36.

517

Id. at 136.

518

Id. at 147.

519

Id. at 148-49.

520

Id. at 143.

521

Id. at 151.

522

Id. at 171.

523

Id. at 156.

524

Id. at 154.

525

Id. at 161.

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its custody. 526 The CIA took custody of its final detainee in 2007, and after Mitchell and Jessen
briefed Secretary of State Condoleeza Rice, in early July she granted approval for the CIA to use
six enhanced techniques: sleep deprivation, dietary manipulation, facial grasp, facial slap,
abdominal slap, and attention grab. 527 The interrogation of the last detainee in the CIA’s
detention and interrogation program ended in December 2007. 528
In January 2009, Obama prohibited use of interrogation techniques other than those found in the
Army Field Manual. Only a few months later, the CIA terminated its contract with Mitchell
Jessen & Associates. 529
I.

Evolution of the BSCT Role

As the Bush Administration’s counterterrorism policies continued, the DoD developed
clearer boundaries and guidelines for the military personnel stationed at Guantanamo. Sidley’s
information about this evolution comes from Larry James and Debra Dunivin, military
psychologists who were stationed with a BSCT between 2003 and 2005. Dunivin said that over
time, the command structure at Guantanamo solidified to the point that psychologists stationed to
Guantanamo operated in one of two chains of command, defined by the mission. Psychologists
assigned to Guantanamo as healthcare providers, either to the servicemen stationed on the base
or to the detainees, worked in the medical chain of command, which reported directly up through
medical personnel to the Surgeon General of the Army. On the other hand, psychologists
assigned to Guantanamo to assist in the intelligence mission worked in the intelligence or
detention commands, which reported up through operational personnel, most of whom were not
healthcare professionals. The BSCTs teams working at Guantanamo were in the latter group as
of 2004, and operated outside of the medical command. 530
However, when the first psychologists began to arrive at Guantanamo in 2002 there was
no structure in place to guide them. Initially, there was no “firewall” between treatment
personnel and interrogation teams, and psychologists moved in and out of both roles. 531 For
example, in an interview with Sidley, Albert Shimkus, the commander of the hospital at
Guantanamo, who was charged with credentialing healthcare providers, explained that several
BSCT members in 2002 and 2003 came to him seeking credentials to act in a healthcare role,
though he stated unequivocally that he never granted such approval. 532 It was only as the Army
began to provide guidance through Standard Operating Procedures (“SOP”) for the Guantanamo
BSCT in November 2002, that the treatment and intelligence roles were separated. The 2002
SOP described several “mission essential tasks,” including consulting on interrogation
526

Id. at 162.

527

Id. at 143, 163.

528

Id. at 167-68.

529

Id. at 169.

530

Dunivin interview (May 20, 2015).

531

APA_0087334.

532

Shimkus interview (June 10, 2015).

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techniques, developing behavior management plans, and liaising between intelligence and
medical personnel to describe the implications of medical diagnoses and treatments for the
interrogation process. 533
Dunivin said that as of January 2003, when Col. Larry James deployed to Guantanamo to
replace Leso as a BSCT member, there was not yet any formalized training in place. James
explained that when he arrived, Leso had already convinced the commanders that rapportbuilding techniques were superior to abusive tactics, and James was able to expand on the
progress Leso had already made to end the abuses at Guantanamo. 534 James said that he
remained at Guantanamo until May 2003, when he was replaced by Maj. Diane Zierhoffer.
Behavioral scientists were also used to address abusive tactics that had begun to spread to
military facilities in Iraq and Afghanistan. In late 2003, military police and CIA personnel at
Abu Ghraib engaged in a consistent pattern of human rights abuses against detainees. As reports
of prisoner abuses filtered back to the military command, a team from JPRA was dispatched to
Iraq to advise regarding interrogation policies. 535 After reports of these abuses broke to the
public in April 2004, Larry James deployed to Abu Ghraib as director of the Behavioral Science
Unit. He returned in November 2004 after he suffered injuries during an attack on his convoy. 536
Dunivin said that in the fall of 2004, she deployed to Guantanamo as a BSCT
psychologist, where she remained until the fall of 2005. During Dunivin’s deployment, the
Department of Defense issued a supplemental policy memorandum for BSCTs. The
supplemental policy reiterated many of the mission essential tasks from the first SOP, but
elaborated that BSCTs were not only to provide consultation to interrogation staff but also to
“monitor[] interrogations and other staff-detainee interactions.” 537 Dunivin said that the Army
did not provide formalized training for BSCT psychologists until after her return in 2005. 538
On November 3, 2005, the Department of Defense issued Directive 3115.09 relating to
“DoD Intelligence Interrogations, Detainee Debriefings and Tactical Questioning” to consolidate
existing policies that required humane treatment during all intelligence interrogations and
debriefings. 539 The Directive explicitly separated the BSCT and medical provider role, stating
533

Memorandum from JTF GTMO, DoD, for the Record, BSCT Standard Operating Procedures (Nov.
11, 2002).
534

James interview (May 1, 2015).

535

In May 2004, the Inspector General of the CIA released a Special Review of the records from a
number of interrogations, which concluded that interrogators were improvising new techniques and using
approved enhanced techniques in ways that did not comply with the legal guidelines or the limits imposed
in SERE training. CIAIG Report at 100–105.

536

APA_0186135.

537

Memorandum from Headquarters, Joint Task Force Guantanamo, DoD, to Joint Intelligence Group,
Joint Task Force–Guantanamo, APO AE 09360 Operational Policy Memorandum # 14, Behavioral
Science Consultation Team (BSCT) (Dec. 10, 2004).
538

Dunivin interview (May 20, 2015).

539

Intelligence Interrogations, Detainee Debriefings, and Tactical Questioning, DoD Directive No.
3115.09 (Nov. 3, 2005).

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that “[t]hose who provide such advice [to personnel performing interrogations] may not provide
medical care for detainees except in an emergency.” 540
Although the CIA did not utilize BSCTs, it used physicians and psychologists to support
interrogations in a manner similar to the DoD. Mitchell explained that at least one, and often
several, medical professionals were present for every interrogation overseen by the CIA. 541
However, the CIA did not undertake the same process of training and educating psychologists.
Mitchell said that the CIA was not as concerned with training and ethics because it did not face
the same set of circumstances as DoD, which oversaw many young psychologists early in their
careers. 542 He stated that DoD was genuinely interested in adhering to the Ethics Code and was
seeking clarity about its guidelines, whereas the CIA would not have changed its operational
decisions based on the ethical statements of a professional association. 543
J.

Department of Defense Research Policy

Critics have argued that legal and policy changes by DoD in the period immediately after
9/11 permitted DoD to conduct human subjects research on detainees without their informed
consent and without oversight from Congress or Institutional Review Boards (“IRB”). The
critics allege that APA, by softening informed consent protections in the Ethics Code and
encouraging research in the PENS report, permitted psychologists to take full advantage of the
weakened legal protections and participate in research programs run under the auspices of DoD
or the CIA. Taken together, it seems likely that the exceptions in the Common Rule and the
definitional changes in the Wolfowitz Directive broadened opportunities for DoD to conduct
research on detainees subjected to interrogations. However, there is no evidence that APA acted
to facilitate psychologists’ participation in such research, if it occurred. 544 As discussed above,
the changes made to the research standards in the APA Ethics Code occurred well before the
September 11 terrorist attacks, and thus could not have been intended to facilitate research on
detainees held as part of the national security policies initiated in response to the attacks.
Therefore, although the critics may be correct that DoD policy changes in the period shortly after
9/11 permitted DoD to conduct research on detainees, Sidley has identified no evidence that
APA acted to support or conduct such research.
Our analysis on this topic confirmed that, at the same time that the CIA and DoD were
developing their interrogation programs, a series of nuanced changes to domestic law and
Department of Defense policy broadened the scope of permissible human subjects research.
Federal policy on human subjects research is grounded in the Common Rule, a uniform set of
regulations relating to the protection of human subjects in biomedical or behavioral research.
540

Id.

541

Mitchell interview (May 15, 2015).

542

Id.

543

Id.

544

As discussed above, there are at least hints in the Senate committee reports that DoD and CIA were
interested in such research, but we are unable to conclude definitively whether research was conducted on
detainees.

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The Common Rule developed out of the 1947 Nuremberg Code and the 1978 Belmont Report,
produced by the National Commission for the Protection of Human Subjects of Biomedical and
Behavioral Research. Following the release of the Belmont Report, the Department of Health
and Human Services began revising and expanding the protections found in the Nuremberg Code
and Belmont Report, and codifying these changes in the federal regulations. 545 In 1991, 15
federal departments and agencies, including the Department of Defense, adopted the Common
Rule in their respective federal regulations.
The Common Rule applies to all research involving human subjects conducted or
supported by any federal department or agency, including research conducted by federal civilian
employees or military personnel. 546 It protects human subjects by requiring IRB review and
approval of proposed human subjects research as part of an effort to minimize risk, ensure
confidentiality, and protect vulnerable populations. It also requires informed consent from all
human subjects. However, the protections of the Common Rule are not absolute: exceptions and
modifications may be made to its provisions by department or agency heads, if deemed
administratively appropriate, 547 and these same department and agency heads “retain final
judgment as to whether a particular activity is covered” by the Common Rule at all. 548
Generally, the informed consent component of the Common Rule requires that “[e]xcept
as provided elsewhere in this policy, no investigator may involve a human being as a subject in
research covered by this policy unless the investigator has obtained the legally effective
informed consent of the subject or the subject’s legally authorized representative.” 549 However,
informed consent requirements may be waived by an IRB provided that it finds that the waiver
would not be harmful to the subjects and the research could not practicably be carried out
without the waiver. 550 Thus, the DoD had ample discretion to exclude certain activities from the
ambit of the Common Rule, even apart from any legal or policy changes that occurred in the
months after 9/11.

545

Critics have argued that Department of Defense Directive No. 3216.2 (the “Wolfowitz Directive”)
permits research activity that does not comply with the Nuremberg Code because it merely requires that
investigators and researchers be “familiar” with the Nuremberg Code, rather than requiring adherence to
the Code. Protection of Human Subjects and Adherence to Ethical Standards in DoD-Supported
Research, DoD Directive No. 3216.2 (Mar. 25, 2002). The reference to the Nuremberg Code appears
among other provisions describing policies that were adopted to ensure that DoD departments comply
with human subjects protections, in a section that discusses the “applicability” of federal policy for the
protection of human subjects research. Thus, in context, it does not seem that the language requiring
familiarity with the Nuremberg Code permits deviation from the principles of the Code in activities to
which the Wolfowitz Directive applies.
546

45 C.F.R. § 46.101.

547

Id. § 46.101(a).

548

Id. § 46.101(c).

549

Id.. § 46.116.

550

Id. § 46.116(c).

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On December 28, 2001, the 2002 Defense Appropriations Act amended 10 U.S.C. § 980
to permit the Secretary of Defense to waive the informed consent requirement in experimentation
on human subjects “with respect to a specific research project to advance the development of a
medical product necessary to the armed forces if the research project may directly benefit the
subject and is carried out in accordance with all other applicable laws.” 551 Only days later, on
January 10, 2002, as President Bush signed into law a supplemental appropriations act for DoD,
he issued a signing statement regarding the Act’s requirement for prior congressional approval
before funding a special access program:
The U.S. Supreme Court has stated that the President’s authority to classify and
control access to information bearing on national security flows from the
Constitution and does not depend upon a legislative grant of authority. Although
30-day advance notice can be provided in most situations as a matter of comity,
situations may arise, especially in wartime, in which the President must promptly
establish special access controls on classified national security information under
his constitutional grants of the executive power and authority as Commander in
Chief of the Armed Forces. 552
Critics have read this statement as a reservation of executive discretion with respect to
notifying congressional committees regarding the initiation of military and intelligence
experiments on human subjects.
On March 25, 2002, the Department of Defense issued Directive Number 3216.2 (the
“Wolfowitz Directive”), relating to “Protection of Human Subjects and Adherence to Ethical
Standards in DoD-Supported Research.” The Wolfowitz Directive reissued a 1983 version of the
same Directive, and incorporated many of the same provisions. The 2002 version amended the
earlier version by supporting the implementation of Section 980 and 32 C.F.R. Part 219, which
contains the DoD statement of the Common Rule. In many ways, the Wolfowitz Directive
adopted as DoD policy a set of very broad protections for human subjects of research. For
example, although many departments adopted only subpart A of the Common Rule, DoD
adopted additional subparts related to research on vulnerable populations. 553 One of these
subparts imposed additional protections in biomedical and behavioral research that used
prisoners as subjects. The subpart defines “prisoner” as “any individual involuntarily confined
or detained in a penal institution. The term is intended to encompass individuals sentenced to
such an institution under criminal or civil statute, individuals detained in other facilities by virtue
of statutes or commitment procedures which provide alternatives to criminal prosecution or
incarceration in a penal institution, and individuals detained pending arraignment, trial, or
sentencing.” 554 Although no reference to other specific categories of prisoners appears in the
551

National Defense Authorization Act for Fiscal Year 2002, Pub L. No. 107-107, 115 Stat. 1012.

552

President George W. Bush, Statement on Signing the Department of Defense and Emergency
Supplemental Appropriations for Recovery from and Response to Terrorist Attacks on the United States
Act (Jan. 10, 2002).
553

Protection of Human Subjects and Adherence to Ethical Standards in DoD-Supported Research,
Directive No. 3216.2 (Mar. 25, 2002).
554

45 C.F.R. § 46.303(c).

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Common Rule, the Wolfowitz Directive adds that “[t]he involvement of prisoners of war as
human subjects of research is prohibited.” 555 This addition, found only in the Department of
Defense policy codifying the Common Rule, is logical in light of the fact that most of the other
agencies that adopted the Common Rule would have no interaction or involvement with
prisoners of war.
Some critics have alleged that this statement demonstrates that the DoD intended to
exclude Guantanamo detainees from the class of people enveloped by the protections for human
subjects. They argue that detainees legally were not considered prisoners of war, in light of
contemporaneous orders classifying detainees as enemy or unlawful combatants, and thus would
not fall within the scope of the Directive. 556 In addition, it seems that Guantanamo detainees
might not qualify as “prisoners” under the Common Rule definition, which describes individuals
held by statute at penal institutions; Guantanamo is not a penal institution and the detainees held
there were captured during armed conflict rather than detained pursuant to federal statute. It
seems fair to conclude that, had the DoD wanted to codify the broadest protections possible, it
could have explicitly extended research protections to additional classes of prisoners, including
detainees held as “unlawful combatants” at Guantanamo. However, it also seems unlikely that
the use of the term “prisoners of war” represents an intentional choice to exclude detainees from
the policy granting protections to the subjects of human research; rather, it is more likely that the
DoD simply adapted the language already existing in the 1983 version of the Directive, which
likewise prohibited “[t]he use of prisoners of war as human subjects of research.” 557 Moreover,
the specific provision relating to prisoners of war has little effect in the context of the Directive
as a whole, because the Directive applies to any research “with a human being,” which includes
detainees regardless of their status as prisoners of war or unlawful combatants. 558 Therefore,
despite its reference to prisoners of war, it seems that the overall effect of the Wolfowitz
Directive was to broaden protections for human subjects of research.
Although the Wolfowitz Directive seemed on its face to extend a generally broad range
of protections to human subjects of research, the Directive also subtly limited the scope of
individuals who were entitled to such protections. First, the Directive broadened the set of
circumstances under which the requirement of informed consent could be waived. The Common
Rule itself contains many exceptions to the informed consent requirement, preserving to the
heads of departments the authority to determine that an activity does not constitute research on
human subjects, and thus does not fall within the policy encapsulated by the Common Rule.559
555

Protection of Human Subjects and Adherence to Ethical Standards in DoD-Supported Research,
Directive No. 3216.2 (Mar. 25, 2002).
556

Peter Jan Honigsberg, The Real Origin of the Term ‘Enemy Combatant,’ Huffington Post (Jan. 9,
2014), available at http://www.huffingtonpost.com/peter-jan-honigsberg/the-real-origin-of-thete_b_4562216.html.
557

Protection of Human Subjects and Adherence to Ethical Standards in DoD-Supported Research,
Directive No. 3216.2 (Jan. 7, 1983).
558

Protection of Human Subjects and Adherence to Ethical Standards in DoD-Supported Research,
Directive No. 3216.2 (Mar. 25, 2002).
559

45 C.F.R. § 46.101(c).

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The Wolfowitz Directive incorporated these exceptions when it adopted the Common Rule as
policy, while also including a provision that permits the Head of a DoD Component to waive the
informed consent requirement “with respect to a specific research project to advance the
development of a medical product necessary to the Armed Forces if the research project may
directly benefit the subject and is carried out in accordance with all other applicable laws and
regulations.” 560 This language is identical to that found in the 2002 Defense Appropriations Act.
The reference to medical products suggests that the Wolfowitz Directive’s implementation of
Section 980 does nothing to expand the scope of human subjects research related to
interrogations, and thus it is unlikely that this aspect of the Directive facilitated research on
detainee interrogations.
Although it seems unlikely that the codification of Section 980 expanded the scope of
permissible human subjects research, the Wolfowitz Directive contained a separate provision that
permits the Director of Defense Research and Engineering to “grant exceptions to policy under
this Directive if justified by special circumstances and consistent with law.” 561 The 1983 version
of the Directive contained a similar provision, which permitted heads of departments to submit
requests for exceptions to the policy to the Under Secretary of Defense for Research and
Engineering, 562 but the changes to the 2002 version seem to give the Director more expansive
authority to carve out exceptions from the policy. It seems likely that the DoD would consider
the war on terror to be a “special circumstance” that permits deviation from human research
subjects protections, and that the memoranda produced by the Department of Justice later in
2002 provided the legal authority to grant an exception for research on interrogations. In
combination with the many exceptions found in the Common Rule, the Wolfowitz Directive’s
exceptions to the informed consent requirement gave the Department of Defense sufficient
leeway to dispense with informed consent and conduct research on detainee interrogation.
Another limitation on the broad protections encompassed in the Wolfowitz Directive is
found in the definition of research itself. In the Common Rule, research is defined as “a
systematic investigation, including research development, testing and evaluation, designed to
develop or contribute to generalizable knowledge. Activities which meet this definition
constitute research for purposes of this policy, whether or not they are conducted or supported
under a program which is considered research for other purposes.” 563 The 1983 version of the
Directive parrots the definition of research found in the Common Rule. However, in the 2002
version of the Directive, the DoD made a notable change and defined research as “an
intervention or interaction with a human being for the primary purpose of obtaining data
regarding the effect of the intervention or interaction. Examples of interventions or interactions
include, but are not limited to, a physical procedure, a drug, a manipulation of the subject or
subject’s environment, [and] the withholding of an intervention that would have been undertaken
560

Protection of Human Subjects and Adherence to Ethical Standards in DoD-Supported Research,
Directive No. 3216.2 (Mar. 25, 2002).
561

Id.

562

Protection of Human Subjects and Adherence to Ethical Standards in DoD-Supported Research,
Directive No. 3216.2 (Jan. 7, 1983).
563

32 C.F.R. § 219.102(d).

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if not for the research purpose.” 564 The requirement that collection of data be the “primary
purpose” of an activity represents a notable change from the broad Common Rule definition,
which contemplates that activities and programs whose principal purpose is something other than
research might nonetheless present an incidental opportunity for researchers to obtain and
evaluate data. It seems likely that DoD would consider the primary purpose of the interrogation
program to be the extraction of information in the service of national security. Thus, even if data
were collected during interrogations for the purpose of deriving generalizable knowledge, that
activity might not be considered research under the Wolfowitz Directive.
It seems likely that, had DoD wished to conduct research on the interrogations of detainees held
in its custody, the Common Rule, as supplemented by the Wolfowitz Directive, would have
given commanders ample leeway to authorize such research. However, Sidley has identified no
evidence that APA coordinated with DoD to facilitate or conduct research on detainees, or that
APA amended its Ethics Code or issued policy statements permitting its members to participate
in such research.
K.

Public Awareness of Abusive Interrogations

In late 2002, the first reports of secret CIA interrogation centers or “black sites” began to
circulate at the major news outlets. On December 26, 2002, Dana Priest and Barton Gellman
reported in the Washington Post that the CIA was running a clandestine interrogation site near
Bagram air base where detainees were “held in awkward, painful positions and deprived of sleep
with a 24-hour bombardment of lights—subject to what are known as ‘stress and duress’
techniques.” 565 The article continued that detainees who cooperated were “rewarded with
creature comforts,” while those who did not were “rendered” to foreign countries, such as
Jordan, Egypt, and Morocco, where the use of torture was well-documented.
Reports of detainees suffering physical abuse while in U.S. custody and after rendition to
other nations continued to emerge over the next several months. In March, the New York Times
reported that several individuals held in American custody claimed that they “had been made to
stand hooded, their arms raised and chained to the ceiling, their feet shackled, unable to move for
hours at a time, day and night,” and a commander of coalition forces in Afghanistan
“acknowledged that prisoners had been made to stand for long periods,” though he denied that
they were chained to the ceiling. 566 Several days later, another article reported that intelligence
officials “acknowledged that some suspects had been turned over to security services in countries
known to employ torture,” and described the case of one such detainee who was “subjected to
sleep and light deprivation, prolonged isolation and room temperatures that varied from 100

564

Protection of Human Subjects and Adherence to Ethical Standards in DoD-Supported Research,
Directive No. 3216.2 (Mar. 25, 2002) (emphasis added).
565

Dana Priest & Barton Gellman, U.S. Decries Abuse but Defends Interrogations, Washington Post
(Dec. 26, 2002), available at http://www.washingtonpost.com/wpdyn/content/article/2006/06/09/AR2006060901356.html.
566

Carlotta Gall, U.S. Military Investigating Death of Afghan in Custody, New York Times (Mar. 4,
2003), available at http://www.nytimes.com/2003/03/04/international/asia/04AFGH.html?pagewanted=1.

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degrees to 10 degrees.” 567 In May, the New York Times published another article that identified a
number of detainees who claimed to have been beaten or subjected to electric shock at the hands
of American and British soldiers. 568
On November 1, 2003, the Associated Press published a report documenting the
inhumane treatment of detainees at Abu Ghraib and other Iraqi prisons. Based on accounts by
released detainees, the article reported that detainees were beaten, exposed to the sun as
punishment, and deprived of water for drinking and washing. Several former detainees
described a common punishment for minor infractions called “‘The Gardens’—a razor-wire
enclosure where prisoners were made to lie face down on the burning sand for two or three
hours, hands bound.” 569 The major news outlets did not pick up on the AP story, even as rumors
began to swirl that American soldiers had posed for photographs with nude prisoners. 570
On March 3, 2004, Salon carried a story by Jen Banbury titled “Guantanamo on
Steroids,” which repeated earlier reports that “[s]ome Iraqis who have been held as security
detainees claim they were subjected to ill treatment, including beatings, sleep deprivation and
psychological abuse.” Banbury, citing a member of a faith-based peace group working with
detainees and their families, described accounts from former detainees who claimed they were
“hooded, handcuffed and left outside for hours on end (sometimes in the rain) at bases where
they are initially taken for interrogation. Accusations of beatings during interrogations are also
common.” Another detainee described “psychological abuse,” as “one of his interrogators
threatened to take pictures of his wife, mother and sister naked and show them on satellite as a
sex film.” 571
On April 28, 2004, 60 Minutes II broadcast graphic photos of Iraqi detainees being
abused and humiliated. Many of the photographs depicted guards sexually humiliating
detainees, who were stripped naked and forced to simulate sex acts on other detainees. Other
photographs showed the battered bodies of two detainees who had died in custody.

567

Raymond Bonner, Don Van Natta Jr. & Amy Waldman, Threats and Responses: Interrogations;
Questioning Terror Suspects In a Dark and Surreal World, New York Times (Mar. 9, 2003), available at
http://www.nytimes.com/2003/03/09/world/threats-responses-interrogations-questioning-terror-suspectsdark-surreal-world.html?pagewanted=1.
568

Marc Lacey, Iraqi Detainees Claim Abuse by British and U.S. Troops, New York Times (May 17,
2003), available at http://www.nytimes.com/2003/05/17/international/worldspecial/17PRIS.html.
569

Charles J. Hanley, Former Iraqi Detainees Tell of Riots, Punishment in the Sun, Good Americans and
Pitiless Ones, Associated Press (Nov. 1, 2003), available at
http://legacy.utsandiego.com/news/world/iraq/20031101-0936-iraq-thecamps.html.
570

Barbara Starr, Details of Army’s Abuse Investigation Surface, CNN (Jan. 21, 2004), available at
http://www.cnn.com/2004/US/01/20/sprj.nirq.abuse/.
571

Jen Banbury, Guantanamo on Steroids, Salon (Mar. 3, 2004), available at
http://www.salon.com/2004/03/03/prison_3/.

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Only two days later, the New Yorker carried the first of Seymour Hersh’s articles about
the abuses at Abu Ghraib. 572 In his article, “Torture at Abu Ghraib,” Hersh quoted from the
newly released Taguba Report, which documented that between October and December 2003,
military and intelligence personnel engaged in “numerous instances of ‘sadistic, blatant, and
wanton criminal abuses,’” including:
Breaking chemical lights and pouring the phosphoric liquid on detainees;
[t]hreatening detainees with a charged 9mm pistol; [p]ouring cold water on naked
detainees; [b]eating detainees with a broom handle and a chair; [t]hreatening male
detainees with rape; [a]llowing a military police guard to stitch the wound of a
detainee who was injured about being slammed against the wall in his cell;
[s]odomizing a detainee with a chemical light and perhaps a broom stick, [and]
[u]sing military working dogs to frighten and intimidate detainees with threats of
attack, and in one instance actually biting a detainee.
The Taguba Report quoted in the article had been completed on February 26, 2004, and
included descriptions of additional abusive acts committed by military police personnel:
Punching, slapping, and kicking detainees; jumping on their naked feet;
[v]ideotaping and photographing naked male and female detainees; [f]orcibly
arranging detainees in various sexually explicit positions for photographing;
[f]orcing detainees to remove their clothing and keeping them naked for several
days at a time; [f]orcing naked male detainees to wear women’s underwear;
[f]orcing groups of male detainees to masturbate themselves while being
photographed and videotaped; [a]rranging naked male detainees in a pile and then
jumping on them; [p]ositioning a naked detainee on a MRE Box, with a sandbag
on his head, and attaching wires to his fingers, toes, and penis to simulate electric
torture; [w]riting “I am a Rapest” [sic] on the leg of a detainee alleged to have
forcibly raped a 15-year old fellow detainee, and then photographing him naked;
[p]lacing a dog chain or strap around a naked detainee’s neck and having a female
Soldier pose for a picture; [a] male MP guard having sex with a female detainee;
[u]sing military working dogs (without muzzles) to intimidate and frighten
detainees, and in at least one case biting and severely injuring a detainee; [and]
[t]aking photographs of dead Iraqi detainees. 573
Throughout May and June 2004, the major media outlets turned their focus to reporting
on the Abu Ghraib abuses. On May 5, 2004, the New York Times published a story in which
Maj. Gen. Geoffrey D. Miller “defended practices like depriving prisoners of sleep and forcing
them into ‘stress positions’ as legitimate means of interrogation, noting that they are among 50-

572

Seymour M. Hersh, Torture at Abu Ghraib, The New Yorker (May 10, 2004),available at
http://www.newyorker.com/magazine/2004/05/10/torture-at-abu-ghraib. The article was posted online on
April 30, but appeared in the May 10 print edition.
573

Article 15-6 Investigation of the 800th Military Police Brigade, Part 1, ¶¶ 6, 8.

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odd coercive techniques sometimes used against enemy detainees.” 574 On May 21, 2004, the
Washington Post identified fresh allegations of abuse at the Abu Ghraib prison, including
allegations that prisoners were “ridden like animals, sexually fondled by female soldiers and
forced to retrieve their food from toilets.” 575 Although it is not clear that all of these abuses
occurred during the course of interrogations, there was sufficient information by the summer of
2004 to put the American public on notice that a number of abusive tactics, including beating,
sleep deprivation, and sexual humiliation, were being used against detainees taken pursuant to
the war on terror.
On June 7, 2004, the Wall Street Journal published a story describing the draft report
produced by the working group of military and civilian lawyers created after Mora forced
Rumsfeld to rescind authorization for the use of enhanced interrogation techniques. The Journal
reported:
The draft report, which exceeds 100 pages, deals with a range of legal issues
related to interrogations, offering definitions of the degree of pain or
psychological manipulation that could be considered lawful. But at its core is an
exceptional argument that because nothing is more important than ‘obtaining
intelligence vital to the protection of untold thousands of American citizens,’
normal strictures on torture might not apply. 576
The article added that the working group’s report elaborated on the Bush administration’s
position of the president’s expansive power to wage war, unbound by Congress or the courts;
therefore, the report concluded, the anti-torture statute cannot be applied to acts undertaken
pursuant to the president’s order as commander in chief. Accordingly, the article continued, the
report provides a Nuremberg defense to individuals acting under military orders, in addition to
outlining defenses based on necessity and self-defense. 577
The following day, on June 8, the Washington Post broke the news that the Department of
Justice had produced a series of memoranda in 2002 and 2003 that advised the White House that
torture of captured al Qaeda terrorists could be both legal and justified “to prevent further attacks
on the United States by the Al Qaeda terrorist network.” The article quoted the 2002 memoranda
as stating that interrogation techniques must be similar to severe beatings, threats of imminent
death, rape, or electric shocks to genitalia to constitute torture. Moreover, the memoranda stated
that psychological techniques based on “purely mental pain or suffering” must “result in
significant psychological harm of significant duration” to constitute torture. The article also
described the analysis of specific intent contained in the memoranda:
574

Dexter Filkins, The Struggle for Iraq: The Warden; General Will Trim Inmate Numbers at Iraq Prison,
New York Times (May 5, 2004), available at http://www.nytimes.com/2004/05/05/world/the-strugglefor-iraq-the-warden-general-will-trim-inmate-numbers-at-iraq-prison.html.
575

Scott Higham & Joe Stephens, New Details of Prison Abuse Emerge, Washington Post (May 21,
2004), available at http://www.wsj.com/articles/SB108655737612529969.
576

Jess Bravin, Pentagon Report Set Framework for Use of Torture, Wall Street Journal (June 7, 2004),
available at http://www.wsj.com/articles/SB108655737612529969.
577

Id.

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Of mental torture, however, an interrogator could show he acted in good faith by
“taking such steps as surveying professional literature, consulting with experts or
reviewing evidence gained in past experience” to show he or she did not intend to
cause severe mental pain and that the conduct, therefore, “would not amount to
the acts prohibited by the statute.” 578
On June 13, the Washington Post published copies of the memoranda. Shortly after, Assistant
Attorney General for the Office of Legal Counsel Jack Goldsmith, withdrew the 2002 and 2003
memoranda at issue. 579
II.

APA’S INITIAL COUNTERTERRORISM RESPONSE: SEPTEMBER 2001–
NOVEMBER 2001
A.

The Board of Directors’ Response

Sidley heard from numerous witnesses that, immediately after 9/11, APA staff and
governance began to identify ways that psychologists and psychological science could contribute
to efforts to cope with the aftermath of the attacks and the nation’s efforts to combat terrorism.
On September 19, 2001, the Board of Directors organized a conference call for the chairs of the
various APA committees to discuss “psychology’s role in addressing the trauma of the terrorist’s
[sic] attacks” and “to help identify experts who can address the research and knowledge that we
have to offer in response to the decisions and actions that face our nation.” 580
Shortly after the conference call, the Board of Directors created a Subcommittee on
Psychology’s Response to Terrorism, with the mission of identifying the role of psychology in
addressing both the threat and the impact of terrorism. The Science, Practice, and Education
Directorates staffed the Subcommittee, with Science Directorate taking the lead. 581 Initial efforts
in the Practice Directorate focused on the formation of a Disaster Relief Network to provide
counseling services and “emotional first-aid” to families of victims, rescue workers, and others
who experienced loss as a result of the terrorist attacks. 582
The Subcommittee also began assembling lists of psychological experts who might
contribute research on relevant topics and networking with government policymakers to
578

Dana Priest & R. Jeffrey Smith, Memo Offered Justification for Use of Torture, Washington Post (June
8, 2004), available at http://www.washingtonpost.com/wp-dyn/articles/A23373-2004Jun7.html.

579

The memoranda were brought to Goldsmith’s attention in December 2003, shortly after he took office.
He decided at that time that they should be rescinded, but his hope was to produce a replacement
document before withdrawing the guidance. Amidst growing political pressure, Goldsmith rescinded the
memoranda on June 14 without any replacement guidance, and submitted his resignation on June 16.
Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration, 159-161
(2009). The OLC would not provide new guidance to the White House until December 30, under acting
Assistant Attorney General Daniel Levin.
580

APA_0033960.

581

APA_0234428.

582

APA_0033736.

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determine what contributions might be of interest to critical government agencies. 583 Members
of the Subcommittee also participated in events designed to educate APA membership on the
contributions of psychological science to counterterrorism efforts. For example, in early
February 2002, Ron Levant, the Chair of the Subcommittee, spoke at a continuing education
seminar in Orlando, Florida titled “The Aftermath of Terror: Psychology’s Role.” 584
As part of APA’s outreach efforts to government personnel, staff from the Science
Directorate began networking with psychologists in the government and compiling a list of
psychologists who could act as consultants on topics related to terrorism. 585 Staff in the Science
Directorate said that Susan Brandon, who was then a visiting Senior Scientist, worked with
Geoff Mumford and Heather Kelly, staff in the Government Relations Office within the Science
Directorate, to reach out to personnel at the FBI, CIA, and other executive agencies and
departments regarding the ways that psychology could contribute to the missions of those
respective agencies.
B.

Relationships with the Department of Defense

At the time of the September 11 terrorist attacks, APA maintained a healthy relationship
with DoD, under the guidance of Heather Kelly and Geoff Mumford in the Science Government
Relations Office. Kelly said that she maintained APA’s research and advocacy portfolio with
respect to DoD, and that as part of this position she tracked DoD research programs, particularly
those research activities that involve behavioral science, and lobbied for funding for those
programs. 586 For example, in the summer before 9/11, Kelly facilitated APA’s participation in
Department of Defense Hill Day, designed to urge policy makers to strengthen the DoD’s
science and technology research program for the upcoming fiscal year. 587 Kelly also maintained
contacts with individuals who presented testimony on behalf of APA before Congress, drafting
language touting APA’s science advocacy efforts as “instrumental in heading off proposed cuts
to military behavioral research programs,” 588 and participated in the Coalition for National
Security Research (“CNSR”), a broad-based group of universities, non-profit institutions and
associations that advocated for Defense science and technology programs. 589
Kelly explained that her interactions with DoD did not change after 9/11, as she
continued to advocate for additional funding for DoD’s research programs. 590 Kelly’s email
activity from the time period demonstrates that she continued to meet with the CNSR, 591 and to
583

APA_0033736; APA_0033744.

584

APA_0056932.

585

APA_0034321.

586

Kelly interview (Dec. 12, 2014).

587

DoD Hill Day (June 6, 2001) (on file with Sidley).

588

APA_0130255.

589

APA_0786417.

590

Kelly interview (Dec. 12, 2014).

591

APA_0128368.

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interact with psychologists in support of the its initiatives and goals. 592 Kelly and other Science
Directorate staff also worked on initiatives internal to the APA designed to demonstrate to
Congress the value of psychological science and the need for adequate funding to support DOD’s
behavioral science research. In November, Kelly and Mumford discussed “accelerat[ing] the
schedule” for the science advocacy training workshop to be held in the spring and shifting the
focus to contributions psychological science could make in the aftermath of 9/11. 593 Mumford
also reached out to Mahzarin Banaji at Yale to discuss holding a House Science Committee
hearing on the same topic in December 2001. 594 It is apparent that APA’s advocacy on behalf of
DoD research and relationships with DoD personnel extended well before 9/11, and continued to
grow after the terrorist attacks, with an increased emphasis on behavioral research and
psychological science related to counterterrorism efforts.
C.

Developing Contacts with the FBI

Though they maintained strong relationships with DoD prior to 9/11, the Science
Directorate staff said that at that time they were not aware of any significant professional
contacts 595 APA had with operational psychologists at the FBI or CIA. 596 Sidley’s only
information regarding APA’s initial contacts with the FBI comes from Susan Brandon. Brandon,
a visiting Senior Scientist at APA, stated that when she attempted to reach out to the FBI in the
weeks after 9/11, she “cold-called” Steve Band, who was head of the Behavioral Science Unit. 597
Brandon told Sidley that Band invited her to Quantico for a meeting on October 24, 2001, and
that at that meeting he said that she could be useful. Brandon added that, after this initial
meeting, she arranged for a number of academics to speak to the FBI, including Ian Lustick, an
expert on modeling risk and decision making from the University of Pennsylvania; George
Bonanno, a psychologist who specializes in resilience and grief recovery from Columbia
University; and Brendan O’Leary, an economist and political scientist from the University of
Pennsylvania. 598
Although there is no evidence to illuminate how Brandon identified these individuals to
speak to the FBI, it seems likely that Brandon connected with the academics from the University
592

APA_0130218.

593

APA_0128339.

594

APA_0128342.

595

Behnke stated that his brother served in various positions with the FBI as a special agent, and at one
time he was special assistant to Louis Freeh, who was Director of the FBI until June 2001. Behnke
explained that, through his brother, he had developed a relationship with the FBI and friendships in the
Secret Service. Behnke interview (May 22, 2015). As early as October 2001, and likely well before,
Behnke also served on an FBI Research Advisory Board that focused on issues related to violence against
women and children. APA_0498683. Behnke stated that he most likely joined this Board prior to
starting at APA, but he could not remember who reached out to him to ask him to participate. Behnke
interview (May 22, 2015).
596

Mumford interview (May 15, 2015); Kelly interview (Apr. 24, 2015).

597

Brandon interview (Apr. 15, 2015).

598

Brandon interview (Apr. 15, 2015).

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of Pennsylvania through Martin Seligman, the former president of APA whose theory of
“learned helplessness” inspired Mitchell and Jessen’s interrogation program. Seligman was a
professor of psychology at the University of Pennsylvania, where he co-founded the Solomon
Asch Center for the Study of Ethnopolitical Conflict with Peter Suedfeld of the Canadian
Psychological Association.
D.

Broadening Relationships with the CIA

APA staff said that they also had no significant professional contacts in the CIA prior to
9/11, and it is not clear how members of the Science Directorate first met Kirk Hubbard in the
Operational Assessment Division (“OAD”) of the CIA. However, it seems likely that one of the
current or former presidents of APA who maintained a relationship with the CIA brokered the
introductions. Geoff Mumford stated that APA staff likely met Hubbard and became involved
with his unit in the CIA through an introduction facilitated by Philip Zimbardo or Joseph
Matarazzo, 599 and Brandon also recalled that Zimbardo was supportive of their outreach
efforts. 600
1.

Professional Standards Advisory Committee

Hubbard’s relationship with Matarazzo, Zimbardo, and several other prominent
psychologists likely developed out of a paid Professional Standards Advisory Committee
(“Advisory Committee” or “PSAC”) retained by the CIA, which met several times each year
beginning in 2000 to advise Kirk Hubbard’s Research & Analysis Branch within the OAD. 601
Hubbard chaired the Advisory Committee, whose members included Joseph Matarazzo, a former
APA president, and Melvin Gravitz, a psychologist who had helped to “revolutionize” APA
during the 1970s. 602 Also involved in the Advisory Committee, likely as a member or possibly
as a consultant, was Ronald Fox, another former APA president. 603
It is likely that James Mitchell served as a consultant to the Advisory Committee on at
least a sporadic basis. Although Hubbard unequivocally stated that neither Mitchell nor Jessen
was ever involved with the Advisory Committee, 604 Matarazzo recalled that Mitchell was a
member of the Committee, and Fox said that Mitchell attended as many as half of the
meetings. 605 Mitchell confirmed that he consulted and wrote some papers for the Committee. 606
Moreover, there is documentary evidence that Mitchell attended a meeting of the Advisory
Committee in January 2002, at the same time that he and Jessen were preparing a report for the
CIA’s Office of Technical Services regarding the al Qaeda manual presumed to be a guide to
599

Mumford interview (May 15, 2015).

600

Brandon interview (May 26, 2015).

601

APA_0329574.

602

Matarazzo interview (May 4, 2015).

603

APA_0329574; Matarazzo interview (May 4, 2015).

604

Hubbard interview (May 5, 2015).

605

Matarazzo interview (May 4, 2015); Fox interview (June 11, 2015).

606

Mitchell interview (May 15, 2015).

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resisting interrogations. 607 Therefore, Hubbard’s assertion that James Mitchell had no
involvement with the Advisory Committee is not credible.
That Mitchell consulted to the Advisory Committee, however, is not proof that the
Committee convened to advise the CIA regarding its interrogation program. Sidley spoke with
several members of the Advisory Committee, including Kirk Hubbard, Joseph Matarazzo,
Ronald Fox, and James Mitchell, 608 and more than one member of the Committee explained that
its purpose was to advise the CIA on the methodology for conducting operational assessments of
personnel. 609 Hubbard stated that he contracted with Mitchell and Jessen to write some papers
for him on topics related to assessments, 610 and Mitchell confirmed that the papers he wrote for
the Advisory Committee related to surreptitious psychological profiling, intelligence and
personality features, and asset identification, all subjects related to the topic of operational
assessment. Matarazzo explained that the Committee continued to meet until 2004, when it
“faded away” because the group had not been able to produce a good assessment tool. 611
2.

Operational Assessment Division’s role in interrogations

Sidley’s only insight into the organization and purpose of the CIA’s Operational
Assessment Division, where Hubbard operated as Chief of the Research and Analysis Branch,
came through discussions with Hubbard, Mitchell, and other witnesses who worked with various
branches of the CIA. Hubbard explained that the OAD’s primary goal was to assess potential
assets or informants for credibility, discretion, capability, and other performance metrics. Within
OAD, the assessment branch, headed by Kirk Kennedy, conducted assessments of potential
assets, while the analysis branch, headed by Kirk Hubbard, developed and improved the
assessment methodology. 612
Hubbard said that his work within OAD had absolutely no connection to interrogations,
and that OAD was totally separate from the CIA’s Counterterrorism Center (“CTC”). 613
Hubbard was aware of only two individuals in OAD who had any involvement in interrogations:
Mike McConnell, an operational psychologist in a different branch of OAD, and Judy
Philipson, 614 who did work on interrogations before joining Hubbard’s Research and Analysis
607

See infra.

608

Melvin Gravitz declined an interview with the investigative team.

609

Hubbard interview (Apr. 30, 2015); Matarazzo interview (May 4, 2015); Fox interview (June 11,
2015).
610

Jessen, “Consulting with the Intelligence Community in Operational Settings: An Operational Model.”
Email from Hubbard to Sidley (May 5, 2015).
611

Matarazzo interview (May 4, 2015).

612

Hubbard interview (May 5, 2015).

613

Kirk Kennedy stated that there were psychologists in three distinct divisions of the CIA: OAD was
under the Office of Technology Services, CTC resided under the Directorate of Operations, and OMS
resided under the Directorate of Administration. Kennedy interview (May 28, 2015).
614

Hubbard said that Philipson was married to Jonathan Fredman, chief counsel to CTC. Hubbard
interview (May 5, 2015).

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Branch. 615 Hubbard explained that he was introduced to Mitchell and Jessen through
McConnell, and that he later introduced Mitchell and Jessen to Jim Cotsana, the Chief of Special
Missions within the CTC. 616
Hubbard stated that there was only one time that OAD engaged in activity related to
interrogations. He recalled that, soon after 9/11, the Division Chief of the Operational
Assessment Division received a request from Cotsana related to ethical complaints arising from
the Office of Medical Services. According to another witness, physicians and psychologists
within OMS were not “on board” with what was going on regarding interrogations, and felt that
they were being cut out of the discussion. 617 Hubbard and Mitchell spoke during the course of
Sidley’s investigation, and Hubbard then clarified that Terry DeMay, who was the Chief of
Psychology at OMS, “was berating Jim Mitchell about being involve[d]” in the interrogation
program. Hubbard said that Cotsana then suggested obtaining an independent opinion from Mel
Gravitz to respond to DeMay’s “ethical concerns.” 618
Mitchell would neither confirm nor deny that DeMay was the individual who raised
concerns about his participation in the interrogation program, but he clarified that the objections
related to the involvement of psychologists, as professionals adept at human behavior and
manipulation, and not to the use of enhanced interrogation techniques in the interrogation
program generally. 619 Mitchell said that he suggested to the division head that the CIA seek an
independent opinion regarding the ethics of psychologists being involved in interrogations, and
soon after, Gravitz was approached to write the opinion. 620
On February 13, 2003, Gravitz delivered an opinion titled “Ethical Cons[id]erations in
the Utilization of P[s]ychologists in the Inter[r]ogation Process” to James Mitchell. 621 The
opinion recites:
Recently, some questions have been raised regarding the ethical implications of
psychologists applying their skills by assisting in the interrogation process of
certain persons who have been detained in the currently ongoing world-wide war
against terrorism. . . .

615

Email from Hubbard to Sidley (May 1, 2015).

616

Hubbard interview (May 5, 2015).

617

Morgan interview (May 29, 2015). Kennedy stated that he also began to voice concerns over
psychologists being involved in abusive tactics when there was no science to support the techniques.
Kennedy explained that when he produced a memo stating these objections, it was received poorly and
thereafter he decided to transition to CIFA. Kennedy interview (May 28, 2015).
618

Email from Hubbard to Sidley (May 1, 2015).

619

Mitchell interview (May 15, 2015).

620

Id.

621

It is not clear whether the opinion was completed in February 2003, or whether it was completed
earlier and a version merely delievered to Mitchell at that time.

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The following comments are based upon a review of the principles of the Ethical
Code as they may be relevant to certain psychological services rendered by
Agency staff psychologists and contractors, all of whom are required by
regulation to be licensed. 622 In the interrogation of detainees, such services may
include (1) acting as a consultant to officers who design and conduct
interrogations, (2) acting as observers but not actually participating in the
interrogations, and (3) participating in the interrogation process themselves. 623
Gravitz identified a number of ethical standards that might be relevant to psychologists’
involvement in interrogations, including conflicts between ethics and law (Standard 1.02),
conflicts between ethics and organizational demands (Standard 1.03), management of alleged or
possible ethical violations, boundaries of competence, providing services in emergencies
(Standard 2.02), bases for professional judgments (Standard 2.04), 624 and cooperation with other
professionals. He concluded:
While the APA Ethics Code focuses primarily on concern for the individual (i.e.,
client or patient), it also recognizes that the psychologist has an obligation to the
group of individuals, such as the Nation. The Ethics Code is in its essence a set of
aspirations and guidelines, and these must be flexibly applied to the circumstances
at hand. 625
Mitchell said that Gravitz’s opinion, though it did not give a definitive answer, satisfied his
superior. 626
3.

Advisory Committee members’ inquiries to APA members and staff

Several witnesses recalled discussions or interactions with members of the CIA Advisory
Committee in the months after 9/11 that suggest that Committee members were involved in
issues related to national security and interrogations. Brandon said that she observed Gravitz in a
“huddle” with members of APA leadership, possibly including Kurt Salzinger, the Executive
Director of the Science Directorate, to the side of a Board of Scientific Affairs (“BSA”) meeting
in October 2001. Brandon recalled discussing the meeting with Mumford, and coming away
with the impression that the side discussion related to intelligence efforts. 627 Gravitz was not
622

At the time, Jim Mitchell was a member of APA.

623

Melvin A. Gravitz, Ethical Consideration in the Utilization of Psychologists in the Interrogation
Process (2003). Email from Hubbard to Sidley (May 5, 2015) [hereinafter “Gravitz Opinion”].
624

The opinion stated: “Psychologists base their work on established scientific and professional
knowledge. It follows that, when there is a minimal knowledge base existing in science or practice, such
services may be informed by the psychologist’s prior and ongoing experience.” Gravitz Opinion. The
statement likely references the relative paucity of research regarding enhanced interrogation techniques,
and suggests that Mitchell and Jessen could draw on their prior experience with SERE training or ongoing
experience applying these techniques as a basis for their work.
625

Gravitz Opinion.

626

Mitchell interview (May 15, 2015).

627

Brandon interview (April 15, 2015).

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listed as being in attendance at the October 2001 meeting of the BSA, and the minutes of the
meeting do not include any discussion of intelligence-related activities. 628
Salzinger said that, also in the same timeframe shortly after 9/11, Matarazzo approached
him, likely during a break at an APA meeting, with the idea that psychologists ought to be able
to do something on the topic of interrogations because they had knowledge regarding how to ask
people questions and persuade them to provide information. Salzinger said that Matarazzo’s
explanation made sense to him, and after this conversation he sent a note to Morton Ann
Gernsbacher, the Chair of BSA, to ask if she was aware of psychologists and researchers who
worked in the area of “getting information from people.” Salzinger said that Gernsbacher
rebuffed his request, and he did not pursue the idea any further. 629
Other witnesses told Sidley that Matarazzo spoke to them about interrogations as well.
Michael Wessells stated that Matarazzo approached him at a conference in July 2002 to ask
about assisting the CIA, saying: “In this environment, things are different, and the CIA is going
to need some help. Things may get harsh. We may need to take the gloves off.” Wessells said
that he responded that he was committed to human rights standards at the core of all of his
activities, and rejected the idea of collaborating with the CIA, though he was not certain
precisely what Matarazzo wanted. 630 Patrick DeLeon also stated that Matarazzo approached him
to ask if he had gotten a call from the CIA because he was getting pressure about psychologists’
role in interrogations. 631
In an exchange that might have prompted Matarazzo’s inquiries to other APA members,
Matarazzo said that Hubbard once asked him, apart from the Advisory Committee, whether sleep
deprivation constituted torture. Matarazzo said that he consulted with other psychologists and
thought about his own experience before concluding that sleep deprivation is not torture on its
own. Matarazzo said that he gave his opinion to Hubbard, and that Hubbard came back to him
with a questionnaire that broke down the question about sleep deprivation into several parts. 632
Hubbard said that he could not recall this exchange, and that if it had happened it would have
been an aside between him and Matarazzo, and not a topic to be raised with the Advisory
Committee. 633 Matarazzo said that Hubbard did not ask him about any other interrogation
techniques.

628

APA_0234367. During the Board meeting, Salzinger reported that the Science Directorate was
involved in several initiatives, including “divisional involvement in suggesting names and/or information
about terrorism and its aftermath from a scientific point of view” and “volunteering scientific
psychological services at various government agencies such as the FBI, Secret Service, State Department,
and Federal Aviation Administration.”
629

Morton Ann Gernsbacher did not respond to several requests to meet with Sidley.

630

Wessells interview (March 11, 2015).

631

DeLeon interview (May 26, 2015).

632

Matarazzo interview (May 4, 2015).

633

Hubbard interview (May 5, 2015).

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Although Sidley found no documentary evidence to support these witness statements, the
collection of incidents strongly suggests that Gravitz and Matarazzo consulted with Hubbard on
ethical issues related to interrogations. However, there is no evidence suggesting that either
Gravitz or Matarazzo engaged in these activities with the knowledge or approval of anyone at
APA. We have no reason to believe that APA staff knowingly assisted in the preparation of
research or opinions for the CIA related to abusive interrogation techniques.
III.

GROWING RELATIONSHIPS WITH GOVERNMENT AGENCIES: DECEMBER
2001 – FEBRUARY 2002
A.

Continued Science Directorate Outreach

By December 2001, the APA Board had taken emergency action to adopt a “Resolution
on Terrorism,” which resolved:
[T]hat the American Psychological Association, an organization devoted to the
promotion of health and well being, calls upon the psychology community to
work toward an end to terrorism in all its manifestations; BE IT FURTHER
RESOLVED THAT THE AMERICAN PSYCHOLOGICAL ASSOCIATION:
[a]dvocates at the congressional and executive levels for increased use of
behavioral experts and behavioral knowledge in dealing with both the threat and
impact of terrorism; [and] [e]ncourages increased support for behavioral research
that will produce greater understanding of the roots of terrorism and the methods
to defeat it, including earlier identification of terrorists and the prevention of the
development of terrorism and its related activities . . . . 634
As part of the APA’s advocacy mission, it continued to build relationships in the FBI, CIA, and
other executive agencies. For example, several Science Directorate staff members recalled a
meeting in late 2001 or early 2002 with members of the FBI’s Behavioral Science Unit.
Brandon said that she arranged the meeting at the FBI for Kurt Salzinger and other staff within
the Science Directorate. Merry Bullock, the Associate Executive Director of the Science
Directorate, attended the meeting and recalled that their hosts at the FBI led the group from APA
on a tour of a village the FBI had constructed for running behavioral simulations of terrorist
attacks. 635
At about the same time, in January 2002, John Marburger, Director of the Office of
Science and Technology Policy (“OSTP”), met with APA staff to discuss a comprehensive
science and technology policy for countering terrorism. The OSTP is one of about twenty
offices within the Executive Office of the President that advises the administration on policy
issues related to all sciences, including physical sciences and social sciences. The proposed
policy discussed at the January meeting involved the preparation of research agendas, including

634

Approved Minutes of the Board (Dec. 7–9, 2001) (on file with Sidley).

635

Bullock interview (May 18, 2015).

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an agenda in the key area of “behavioral, social and institutional issues,” and the assessment of
government research programs to identify areas for improved interagency coordination. 636
B.

Seligman Gathering

In December 2001, Martin Seligman, a former president of APA credited with
developing the theories of learned helplessness and positive psychology, hosted a meeting at his
home for “an international group of sixteen distinguished professors and intelligence personnel”
to discuss how America could respond to Islamic Extremism. The group included “experts in
terrorism and related topics from psychology, political science, history, Islam, sociology, the
CIA and the FBI.” 637 Seligman said that this meeting was not at the request of any government
agency, and was convened because he “wanted to send to the White House unsolicited
recommendations to help the nation in a time of great need.” 638
At the close of the meeting, the group had made “six policy recommendations aimed at
winning a victory that will lastingly contain global terrorism”:
Isolate Jihad Islam from Moderate Islam worldwide; [n]eutralize Saudi
support for jihad Islamic fundamentalism worldwide; [p]olice the Arab Diaspora
in Western Europe forcefully; [s]ubvert the social structure of terrorist
organizations; [b]reak the link between the terrorists and the pyramid of
sympathizers; [and] [b]uild American knowledge of Arab and Muslim culture and
language. 639
Seligman denied that there was a “single mention by anyone of interrogation, captives, or torture
or any related subject” at the meeting, 640 and the summary document produced by the group does
not reflect that discussion of any of these topics occurred. Indeed, Seligman said that he has
never worked on interrogations or held a contract with the CIA or any other entity related to
interrogations. 641
Steven Band, Chief of the Behavioral Science Unit at the FBI attended the meeting, as
did Kirk Hubbard, Chief of the Research and Analysis Branch in the Operational Assessment
Division of the CIA, and James Mitchell, whose only listed affiliation was “CIA.” 642 After
communicating with the parties who attended this meeting, 643 we cannot say with any certainty
how Hubbard and Mitchell came to be present. Seligman said that he did not know who had
636

APA_0318979.

637

Martin Seligman et al,. How to Win the Peace (on file with Sidley).

638

Email from Seligman to Sidley (June 13, 2015).

639

Martin Seligman et al,. How to Win the Peace (on file with Sidley).

640

Email from Seligman to Sidley (May 19, 2015).

641

Email from Seligman to Sidley (June 13, 2015).

642

Martin Seligman et al,. How to Win the Peace (on file with Sidley).

643

Steven Band declined to speak with Sidley, but Kirk Hubbard and James Mitchell both agreed to be
interviewed and Martin Seligman communicated in writing.

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invited Hubbard, Mitchell, or Band, and he described all three as “almost totally silent
throughout” the meeting. 644 Hubbard also said that he could not recall how he had been invited
to this meeting, though he thought that Joseph Matarazzo had brokered his initial introduction to
Seligman. Mitchell said that Hubbard had invited him to the meeting, though he did not know
how Hubbard had received an invitation. 645 It seems most likely that Matarazzo introduced
Seligman, a fellow former APA president, to Hubbard, whom he had worked with on the CIA’s
Advisory Committee, and that this introduction led to an invitation for Hubbard to attend the
gathering at Seligman’s home.
Communications between Steve Band and Geoff Mumford suggest that Band discussed
Seligman’s meeting with Susan Brandon and Mumford within days after it occurred, and that he
encouraged them to brief Kurt Salzinger. 646 Band also seemed eager to share the report
produced after the meeting, promising to show both Mumford and Brandon a copy of the “writeup” the next time he saw them, though he could not provide a copy. Band described the report to
Mumford in provocative terms:
Seligman’s ‘gathering’ produced an extraordinary document that is being
channeled on high (very high)… I did not get the impression from Seligman that
it was intended for wide distribution or readership… some of the national
strategies and supportive statements proposed by ‘the gathering’ are pretty
intense; the authors may want their involvement to remain discrete. 647
Band later confirmed, based on email traffic between Seligman and Brandon, that his “gut
feeling about not releasing [Seligman’s] product outside of its intended audience was on-point
and . . . it may have discomforted [Seligman] to learn that Kirk [Hubbard] did.” 648 Brandon
assured Band that she had not distributed the Seligman paper, but indicated that it had sparked
some “lively debate here.” 649 During their interviews, both Brandon and Mumford stated that
they did not believe they had ever seen the paper, 650 but it seems likely that Brandon did see the
paper and discuss it with some of her colleagues in the Science Directorate.
Hubbard stated that Seligman met with Hubbard and his staff several more times after the
initial meeting in Seligman’s home. One of these meetings was with Hubbard and two
psychologists on his staff, Judy Philipson and Liz Vogt, both of whom were married to attorneys
in CTC. 651 Seligman confirmed that he met with Hubbard and a female lawyer at his home in
April 2002, and they discussed Seligman’s theory of learned helplessness at length in the context
644

Email from Seligman to Sidley (May 19, 2015).

645

Mitchell interview (May 15, 2015).

646

APA_0329396.

647

APA_0330422 (ellipses in original).

648

APA_0330413 (ellipsis in original).

649

APA_0330413.

650

Brandon interview (May 26, 2015); Mumford interview (May 15, 2015).

651

Hubbard interview (Apr. 30, 2015 & May 5, 2015).

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of how the theory might help “our people who are captured.” 652 At another of these meetings,
Hubbard stated that he, Mitchell, and Jessen met with Seligman in his home to invite him to
speak about learned helplessness at the SERE school in Spring 2002. 653 As discussed above,
Seligman said that he could not recall meeting with Mitchell or Jessen apart from the December
2001 meeting at his home. Rather, Seligman thought that he was invited to speak at the SERE
school during the April 2002 meeting with Hubbard and a female lawyer. 654 However, after
discussing the meeting with Hubbard during the course of the investigation, Seligman
“surmise[d]” that there must have been an additional meeting in April with Mitchell and Jessen,
and that it must have been at that meeting that he was invited to speak at the JPRA conference in
May 2002. 655
APA’s critics have hypothesized that Seligman took a far more active role in supporting
the CIA’s interrogation program than the relatively tangential interactions described above.
They point to the December 2001 meeting at Seligman’s home and an email from Hubbard in
March 2004 expressing gratitude for Seligman’s help “over the past four years” 656 as evidence
that Seligman was an active participant in supporting the CIA’s interrogation program. Seligman
and Hubbard had similar, though not identical, explanations for Hubbard’s comment. Seligman
explained that he had previously asked Hubbard about the email and that Hubbard had explained
that he was referring to the pro bono lecture Seligman had given to the Navy SERE school in
May 2002. 657 Hubbard said that he was “basically” thanking Seligman for hosting the meetings
in his home in 2001. 658 Thus, both Hubbard and Seligman explained that Hubbard was thanking
Seligman only for his involvement in the meetings that have become public knowledge. Critics
also allege that the University of Pennsylvania’s Positive Psychology Center, founded by
Seligman, received a $31 million sole source contract from DoD in 2010 because of assistance
Seligman provided to the government with its counter-terrorism efforts. Seligman said that this
contract was awarded because there were no competing entities who had the same experience in
training and research on the topic of positive psychology, and there was an urgent need for a
program in positive psychology to help returning troops. Seligman clarified that during
negotiations on this contract, there was never any mention that the contract related to past work
he might have done for DoD or other intelligence agencies. 659
Sidley has not uncovered evidence that Seligman had interactions with the CIA beyond
the isolated meetings and lectures in the year after 9/11 that are a matter of public record. It is
possible that more interactions occurred, particularly given Hubbard’s comment that Seligman
had provided assistance over the course of four years, but no evidence suggests that
652

Email from Seligman to Sidley (June 13, 2015).

653

Mitchell interview (May 15, 2015).

654

Email from Seligman to Sidley (June 13, 2015).

655

Email from Seligman to Sidley (June 21, 2015).

656

APA_0220928.

657

Email from Seligman to Sidley (May 19, 2015).

658

Hubbard interview (May 5, 2015).

659

Email from Seligman to Sidley (June 13, 2015).

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interrogations were ever directly discussed at these meetings, despite the fact that the scientific
theories that Mitchell and Jessen later adapted to construct the CIA’s interrogation program
clearly were. On balance, it seems difficult to believe that Seligman did not at least suspect that
the CIA was interested in his theories, at least in part, to consider how they could be used in
interrogations. However, we found no evidence to support the critics’ theory that Seligman was
deeply involved in constructing or consulting on the CIA’s interrogation program, and no
evidence that such consultation would have involved APA officials even if it had occurred.
C.

Meeting of the CIA Advisory Committee

In January 2002, the CIA’s Professional Standards Advisory Committee invited Susan
Brandon and James Mitchell to attend a Committee meeting. 660 Brandon said that Mel Gravitz
and Ron Fox were her contacts in the CIA, and they asked her to come and brief the Advisory
Committee. At the meeting, held on January 25, the minutes reflect that Brandon was introduced
to the other members and asked to sign a “secrecy agreement,” before being briefed on the
function of the CIA’s Operational Assessment Division and the purpose of the Advisory
Committee. Brandon then discussed her role at APA, including her involvement in planning the
upcoming conference at an FBI Academy to remedy the FBI’s traditional disengagement from
academics and scholars. 661 Following Brandon’s presentation, the group discussed
“collaborative efforts between OAD, PSAC, and APA,” and Mitchell presented “research
findings in cross-cultural assessment of personality.” 662 Brandon said she could not recall
Mitchell’s presentation, but her general impression was that Hubbard was more interested in
obtaining information from spies around the world than from detainees. She said that nobody at
the meeting asked her about interviewing or interrogations, and it did not strike her that the
others at the meeting were interested in that topic. 663
After the meeting, Brandon and Hubbard communicated regarding ways that Brandon
and APA could be useful to Hubbard’s group. 664 Brandon explained that Hubbard subsequently
provided her a list of topics that he hoped she would be able to help him explore, but that she
was disappointed by how basic the questions were. 665
Following the meeting on January 25, Brandon emailed Fox regarding an article that
Terry DeMay was writing for the APA Monitor, 666 about which Matarazzo had raised some
concern. Brandon commented that “[a]s far as I can tell, there is really no overlap between the
work that he describes and the kinds of issues raised at our Friday meeting.” 667 That the
660

APA_0329830.

661

APA_0329827.

662

APA_0329828.

663

Brandon interview (May 26, 2015).

664

APA_0329835.

665

Brandon interview (May 26, 2015).

666

The article Brandon refers to is likely Psychologists in the CIA published in the Monitor in April 2002.

667

APA_0329836.

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Advisory Committee was scrutinizing an article written by DeMay, the same person who raised
ethical concerns about the interrogation program, during a meeting at which Mitchell was present
could suggest that the Advisory Committee at some point addressed interrogation issues.
However, Brandon’s comment to Matarazzo in a different email indicates that she was concerned
about the article only for its potential to “overlap with the work of [Hubbard’s] group.” 668 On
balance, it seems unlikely that the Advisory Committee discussed ethical issues related to
detainee interrogations at the meeting that Brandon and Mitchell attended.
This collection of incidents together strongly suggest that, though the Professional
Standards Advisory Committee itself might not have consulted on interrogation issues, at least
two of the three highly placed members of the Advisory Committee were doing work on the
ethics of interrogations. Matarazzo made several inquiries on various issues related to the CIA
and potentially abusive interrogation issues, including assessing whether sleep deprivation was
torture and attempting to identify relevant research on how to effectively interrogate. Gravitz
produced an opinion on the ethical implications of psychologists’ involvement in interrogations,
which suggests that he was privy to at least some background information regarding the CIA’s
interrogation activities, including the specific roles psychologists had been designated to fill.
Thus, it seems likely that, even if the Advisory Committee as an official entity was not advising
the CIA on interrogations, its members were providing consultation on this topic. However, we
found no evidence that either Gravitz or Matarazzo coordinated with APA staff or governance on
their consultation activities with the CIA, and thus it seems unlikely that APA knowingly
facilitated the CIA’s use of harsh interrogation techniques through the involvement of prominent
former governance members on the Advisory Board.
D.

FBI Conference: “Countering Terrorism: Integration of Theory and Practice”

In the years after 9/11, in addition to informal meetings and discussions, APA began cohosting with the FBI, CIA, and other government entities a series of formal conferences or
workshops intended to integrate theory and practice with regard to a number of topics relevant to
national security settings. Susan Brandon, visiting Senior Scientist in the APA Science
Directorate between August 2001 and December 2002, and Geoff Mumford, Assistant Executive
Director for Government Relations in the APA Science Directorate, were at the forefront of
planning these conferences.
In November and December 2001, at around the same time as the Seligman gathering,
Brandon and Mumford met with members of the FBI’s Behavioral Science Unit to begin
organizing an invitational conference co-hosted by the FBI Academy, the National Institute of
Justice, APA, and the University of Pennsylvania’s Solomon Asch Center for the Study of
Ethnopolitical Conflict, an academic group founded by Martin Seligman and Peter Suedfeld to
advance training in ethnic-group conflict and violence. On December 20, 2001, Kurt Salzinger
wrote to Mike Honaker to ask for his support in moving quickly on sponsoring the proposed FBI
Academy conference. He explained that “we have been making available our list of experts to
agencies of government from time to time” and that the proposed conference would be an
opportunity to hold a meeting that built on the FBI’s use of psychological science. Honaker
668

APA_0329835.

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forwarded the request to the rest of APA’s Executive Management Group, noting that “[t]his
seems to me to be an excellent opportunity and one that meets our criteria for co-sponsorship.” 669
Sidley spoke with both Susan Brandon and Geoff Mumford, the APA staff members
charged with organizing this conference. Brandon explained that she began to identify potential
participants for the workshop by speaking with Band and her colleagues at the APA, and then by
conducting a literature search. 670 At Band’s suggestion, Brandon reached out to Behnke to
gauge his interest in participating in the conference, which she described as a “meeting between
social scientists and ‘agents’ of various sorts.” 671 Over the following weeks, Brandon invited a
number of researchers with both academic and government affiliations. The conference report
shows that, among the operational psychologists attending this conference was James Mitchell,
who at that point was in the midst of designing the CIA’s interrogation program.
Also present were a number of APA staff and governance individuals, including Steve
Behnke, Director of the Ethics Office; Robert Kinscherff, former Chair of the Ethics Committee;
and several members of the Science Directorate staff. Mel Gravitz, the long-standing APA
governance member who served on the CIA’s Professional Standards Advisory Committee, also
participated in the workshop.
Several weeks before the conference, Brandon informed participants that there would be
roughly equal numbers of scholars and field agents attending the meeting, and that they would be
broken into small groups to discuss “questions and scenarios that reflect the current concerns of
the FBI and associated agencies in ongoing counter-terrorism efforts.” These issues included
identifying individuals or communities that support terrorist networks, educating the media and
the public regarding ways to communicate and cope with terrorist threats, and “interview[ing]
current detainees.” 672 The format of the meeting was based on Seligman’s gathering from
December 2001, which Band believed worked well because the academic participants freely
contributed knowledge without the need for sensitive information: “[T]here was no expectation
on the part of the Seligman group that we would even communicate with them . . . yet, they
spoke and we listened and gained valuable assistance from them.” 673 After reviewing the
Seligman paper, Brandon explained that she “liked the format and the development of very
concrete notions and suggestions” and thought it would be a “worthy goal” to write something
similar after the upcoming conference. 674
Each of the participants was assigned to a “scenario” and a “question,” which would be
considered by small groups in the morning and afternoon, respectively. The scenarios were
designed to identify the issues that law enforcement personnel faced in triaging a large volume of
incoming information, coaxing individuals to report on suspicious behavior and convincing
669

APA_0163542.

670

Brandon interview (April 15, 2015).

671

APA_0034984.

672

APA_0036644.

673

APA_0330413 (ellipsis in original).

674

APA_0330412.

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voluntary informants to provide additional and more reliable information, constructing
interrogation plans in the face of media scrutiny, identifying the most effective interrogation
techniques based on various situational factors, and enhancing the image and reputation of the
FBI in Arab-American and Muslim-American communities. 675
One of the groups addressed a scenario that raised the issue of psychologists’ ethical
requirements in the context of law enforcement needs. The scenario described a woman who
contacted her psychologist to report that she believed her son was being recruited for a
“martyrdom” mission. Before including this scenario in the materials for the conference,
Brandon contacted Behnke on behalf of one of the FBI Academy faculty members to ask
whether APA would have a concern with using the scenario because it would “be in any way
considered unethical or [] raise issues of ethics that APA would want no part in.” 676 Although
the FBI’s request suggests that it might have wanted to present only those ethical “dilemmas”
that could be easily resolved in an ethical manner, it seems more likely that the communication
was merely a courtesy to APA as a co-sponsor of the workshop.
The discussants on this panel, which included Steve Band, Steve Behnke, Melvin
Gravitz, Heather Kelly, and Robert Kinscherff, initially “focused on the ethical code of
psychologists and its apparent limitations in situations in which national security may be
threatened.” 677 After discussion, the group recommended that the APA consider “including
statements regarding information related to national security in its code of ethics” and
broadening training programs to teach psychologists how to respond in national security
situations. 678
Mitchell was assigned to a different small group focused on interrogation issues. The
scenario considered by Mitchell’s group described three individuals who had been arrested for
trespassing and photographing a nuclear power plant facility. The group discussed several issues
that arose when interrogating individuals suspected of being involved in terrorist activity.
During its discussion of cross-cultural issues, the group surmised that “[i]t may be that an
American simply could not develop sufficient rapport with a foreign visitor” and that it is
possibly that lying “looks different” in other languages and cultures. 679
In the afternoon, Steve Band and James Mitchell were assigned to one group, along with
several academics and representatives from government agencies and departments, including one
representative from the Office of Homeland Security. They discussed research related to the life
problems and circumstances of Middle Eastern immigrants that might help law enforcement
understand normal responses in that community and identify opportunities to acquire assets. 680
In a different group, Behnke facilitated a discussion regarding resistance to quarantines and other
675

APA_0231038.

676

APA_0036339.

677

APA_0035383.

678

APA_0231038.

679

Id.

680

APA_0036255.

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emergency measures in the face of biological terrorism. 681 Gravitz was assigned to yet another
group, which discussed law enforcement campaigns or activities that might be useful to create a
climate in which law enforcement can operate more effectively. 682
The Executive Summary of the conference report identified three broad themes that
weaved through the discussions: information exchange, relationships with key communities, and
interrogation/interview techniques. With respect to the last theme, the report noted that
“[s]uggestions were offered on how to most effectively interview community members who may
have information relating to individuals that are involved in terrorist networks, either within or
without the U.S. Special focus was given to instances where these people are recent
immigrants.” 683 It also described the challenges faced when interacting with individuals from
Arab-American and Muslim-American communities, where changes in immigration and Justice
Department policy had bred distrust that undermined the creation of effective relationships with
law enforcement.
After Brandon prepared the conference report, Mumford shared it with Kurt Salzinger,
and recommended that he circulate it to the Practice Directorate, Steve Behnke in the Ethics
Office, and the Executive Management Group. Mumford explained that “there are suggestions
within the report that APA might take a role in developing further clarification for clinicians
should they come across information in a practice setting that could have implications for
national security.” 684 On January 21, 2003, Brandon and Mumford arranged a meeting with
Brian Vila, the Director of the Crime Control and Prevention Research Division at the National
Institute of Justice to reflect on the conference and discuss future collaborations with the FBI
Behavioral Sciences Unit. 685
IV.

BROADENING AND STRENGTHENING CONNECTIONS: MARCH 2002 –
MARCH 2004
A.

Congressional Outreach

As the initial shock of the events of 9/11 wore off, APA continued its efforts to contribute
psychological science to counterterrorism efforts, both internally and through outreach to various
government entities. Internally, the APA created task forces and ran educational programming
designed to study various aspects of the nation’s response to the terrorist attacks. For example,
in 2002, the Board allocated funds to establish a Task Force on Promoting Resilience in
Response to Terrorism. 686 This Task Force, a joint effort between APA and the American
Psychological Foundation, was intended to develop information on programs that would promote

681

APA_0035603.

682

APA_0036255.

683

APA_0037925.

684

APA_0083207.

685

APA_0248564.

686

Approved Minutes of the Board (Feb. 13 & 14, 2002) (on file with Sidley).

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resilience and the development of coping mechanisms that individuals could use to manage the
stress and anxiety caused by terrorism. 687
The APA also continued lobbying to congressional committees and members in an
attempt to convince them of the usefulness of psychological science in combating terrorism. On
March 1, 2002, APA Science Directorate staff arranged meetings between psychological
scientists and staff on the House and Senate Science Committees, which ripened into additional
congressional briefings later in the year. Highlights of these outreach efforts included work with
Senator Kennedy’s office on the inclusion of psychological services in the Bioterrorism
Preparedness Act and the appointment of a psychologist advisor to the Office of Homeland
Security. 688 A few months later, APA President Philip Zimbardo met with Senator Inouye to
discuss funding for human-oriented psychological defense research. 689 Shortly after his meeting
with Senator Inouye, Zimbardo reached out to Pat DeLeon, Inouye’s chief of staff and former
APA president, to discuss how he could promote “getting psychologists involved in long term
psych ‘warfare’ propaganda on terrorism,” suggesting that he might be able to chat with
Condoleeza Rice, his “old provost with whom [he] had good relations.” 690 When the email was
forwarded to APA staff, Heather Kelly commented that “there already are psychologists on staff
down at Ft. Bragg, where psyops are headquartered . . .” 691 Zimbardo said that he did not follow
up on this email and that he did not think anything came of it. 692 However, as described below,
Zimbardo and Science Directorate staff met with Rice’s staff in the National Security Council
the following month to discuss psychological science relating to counterterrorism efforts.
The following year, in September 2003, the Public Policy Office of the Science
Directorate sponsored a Science Advocacy Training Workshop focused on training researchers
to effectively communicate with Congress about the ways that behavioral research fits into
DoD’s needs. 693 The Workshop included a briefing on “Psychological Science in Support of the
Soldier,” co-sponsored by APA and Senator McCain’s office. 694 Several months later, Behnke
and Kelly met with Senate staff to again apprise them of APA’s work in the national security
arena and to “gauge their level of interest in APA’s thinking on these matters.” 695
687

APA_0033736.

688

APA_0234367.

689

APA_0130196.

690

APA_0130195.

691

APA_0130195 (ellipsis in original)

692

Zimbardo interview (June 8, 2015).

693

When Heather Kelly invited Bill Strickland, CEO of the Human Resources Research Organization
(“HumRRO”), to participate in the briefing, Strickland provided his biographical information and
informed Kelly that HumRRO had received over $37.5 million from DoD sources in the last 5 years and
an additional $1 million from CIA. APA_0129620. In an interview with Sidley, Strickland elaborated
that HumRRO has had a number of classified contracts with government agencies, including a contract
that involved behavioral modeling. Strickland interview (May 21, 2015).
694

APA_0129578.

695

APA_0041630.

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B.

APA INTERACTIONS WITH CIA & DOD: 2001-2004

Continued Interactions with Executive Agencies

In a parallel effort, the APA also continued to forge and strengthen connections with the
CIA, FBI, and other executive agencies tasked with combating terrorism. As his presidential
year advanced, Phil Zimbardo began to take a more active role in these outreach efforts. In June
2002, following up on Zimbardo’s suggestion the previous month of contacting Condoleeza
Rice, Zimbardo, Brandon, and Kelly attended a meeting with two senior staff members in Rice’s
National Security Council (NSC) Office of Combating Terrorism to explore “psychological
research that is germane to counter-terrorism efforts.” 696 The NSC group asked APA to identify
social scientists with expertise in risk perception and communication who could speak informally
with NSC about “how to best communicate with the public, the media, and various infrastructure
agencies regarding the level of risk of security alerts . . . and how to do this while both
maintaining credibility with those who receive these messages and avoiding threat fatigue among
those whom must react to these messages.” 697 The APA Science Policy staff proposed modeling
such a meeting on the format used for its meetings with Congress, the Department of Homeland
Security (“DHS”), and the FBI Academy. 698 Kelly and Brandon both recalled that the meeting
was a fairly high-level discussion and that Zimbardo did most of the talking while NSC staff said
little of interest.
APA staff also started to broaden their outreach to DHS. In May 2003, Mumford and
Brandon joined an advisory group to the Department of Homeland Security Science and
Technology Behavioral Research Program. The group, headed by Gary Strong, Director of
Behavior Research, began to meet once a month to address areas of interest for social and
behavioral research within DHS, including terrorist cells, public responses to DHS activities,
determination of intent, and the economic vulnerability of the United States. The advisory group
members suggested a number of additional topics, including “crowd and panic behavior; suicide
terrorism; determination of intent in crisis situations; vigilance problems for security officials;
autonomic specificity in reactions to stress; use of electro-encephalograms for determination of
intent and for detection of deception; and use of Guantanamo Bay subjects as data.” 699 Mumford
stated that he could not recall any discussion about research studies with detainees, either at this
meeting or in other conversations with Brandon, Gerwehr or Mumford. 700 Brandon likewise
stated that she did not know what this comment referred to, and assumed that any discussions on
this topic would have related to attempts to discover what people were doing with research
subjects when there was very little oversight. However, she stated that she recalled people
wanting to observe detainees to understand the effectiveness of the interrogation program.

696

APA_0130183. Rice was not present at this meeting.

697

APA_0329791.

698

Id.

699

APA_0129247.

700

Mumford interview (May 15, 2015).

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Brandon said she would characterize this kind of observation as program evaluation rather than
research. 701
C.

Meetings with APA Presidents at the CIA

During his presidential year, it is likely that Phil Zimbardo met with Kirk Hubbard more
than once to discuss in general terms how Zimbardo might contribute to Hubbard’s work at the
CIA. In August 2002, at the APA Convention in Chicago, it is likely that Zimbardo met with
Hubbard after one of Zimbardo’s speeches, and that Hubbard invited Zimbardo to give a talk
about interrogations to his group in the CIA. Zimbardo said that he had done research on
interrogations with American detectives, and that he agreed to speak with Hubbard’s group even
though he thought it likely that his research would not have any extension to the Guantanamo
context because of differences in language and cultural values. Zimbardo gave a talk to fifteen
to twenty people, who he assumed to be an insider group at the CIA, but he did not get the
impression that anybody wanted to use his ideas in a concrete way. 702 Zimbardo thought that
Hubbard might have asked him to be on contract or accept a research grant at that point, but
Zimbardo did not want any further connection with Hubbard because he got the sense that
Hubbard wanted him to do things he would not be willing to do.
Only a few months later, in October 2002, at the suggestion of Geoff Mumford and Susan
Brandon, Kirk Hubbard attended a meeting in California organized by Phil Zimbardo, Bruce
Bongar, and Larry Beutler. 703 This meeting was a first step toward establishing the National
Center on Disaster Psychology and Terrorism, 704 a joint effort of the Pacific Graduate School of
Psychology and Stanford University designed to train doctoral students to help victims of
catastrophic events.

701

Brandon interview (May 26, 2015). As discussed above, we considered it beyond the scope of this
investigation to draw conclusions regarding whether the CIA, DoD, or any other executive agency was
conducting research on detainees because we found no evidence that APA had coordinated with the
government ot facilitate such research.
702

Zimbardo interview (June 8, 2015).

703

APA_0329574; APA_0028186.

704

Zimbardo said that the National Center was focused on training clinical psychology students to treat
victims of terrorist activities. Zimbardo wanted to focus on the psychology of terrorism, and he and
James Breckenridge later decided to form the Center for Interdisciplinary Policy, Education, and
Research on Terrorism (CIPERT) to produce a compendium of what was known about psychological
research on terrorism. Zimbardo interview (June 8, 2015). Critics allege that Brandon later forced
Zimbardo to appoint Hubbard to the CIPERT board at the expense of losing Department of Homeland
Security funding. Raymond interview (Dec. 2, 2014). Zimbardo said that he could not recall ever having
a conversation with Brandon about involving Hubbard as any kind of consultant with CIPERT, and
Brandon said that she did not know whether either Kennedy or Hubbard was on the board of CIPERT.
Zimbardo interview (June 8, 2015) & Brandon interview (May 26, 2015). Given that neither Zimbardo
nor Brandon recalls a conversation about Hubbard serving on the CIPERT board, it seems unlikely that
the critics’ theory that Brandon strong-armed Zimbardo into appointing Hubbard to the CIPERT board is
correct.

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It is likely that Zimbardo met with Hubbard during this conference, though the purpose of
such a meeting is not clear. Sidley’s only information about this meeting comes from statements
given by Hubbard, Matarazzo, and Kirk Kennedy. Hubbard stated that he and Kennedy met with
Zimbardo in San Francisco because Kennedy wanted to put Zimbardo on contract. 705 It is likely
that the meeting was arranged by Matarazzo, who said that it was possible that he could have
facilitated a meeting between Zimbardo and Hubbard if Hubbard was planning on being in San
Francisco, although he did not have any specific recollection of having done so. 706 Zimbardo
also thought it was conceivable that he might have met with Hubbard in his home if Hubbard had
come to California. 707 However, Kennedy said that he was under cover in his role at the CIA
during 2002, and he did not meet Zimbardo until after he left the CIA in 2004. At that point he
was heading up research within the DoD, and he was able to leverage Hubbard’s relationship
with Zimbardo to arrange a meeting. 708 Sidley’s knowledge of this meeting rests solely on these
contradictory witness accounts, but it seems likely that Matarazzo arranged for Hubbard to meet
Zimbardo during the National Center on Disaster Psychology and Terrorism meeting in October
2002, and that Kennedy met with Zimbardo at a later date.
As Zimbardo’s presidential year ended, the incoming APA President for 2003, Robert
Sternberg, stepped into his role to interact with the CIA. In December 2002, Brandon and
Mumford accompanied Sternberg on a visit to the CIA to give a presentation to a group of
operational psychologists in the intelligence community. Sternberg addressed cross-cultural
assessment issues and the development of psychological assessment tools based on theories of
“successful intelligence.” 709 The Science Directorate publicized the visit in its newsletter under
the headline, “APA President Sternberg visits the CIA,” and posted his power point presentation
on the APA website. 710 Despite clear evidence documenting his presentation, in the brief
interview Sternberg begrudgingly agreed to grant Sidley, he denied that he ever attended a
meeting at the CIA.
D.

CIA Conference: “The Science of Deception: Integration of Practice and
Theory”

Throughout the spring and summer of 2003, Brandon and Mumford also began planning
the second workshop in the series of conferences designed to bring operational psychologists and
researchers together. On January 15, 2003, Brandon and Mumford attended a luncheon meeting
with Kirk Hubbard and Judy Philipson to discuss possible long-term collaboration between the
APA and Hubbard’s Research and Analysis Branch at the CIA. According to notes from the
meeting prepared by Brandon and Mumford, Hubbard discussed his interest in expanding the
input his office received beyond the clinical perspective offered by the Advisory Committee and

705

Hubbard interview (May 5, 2015).

706

Matarazzo interview (May 4, 2015).

707

Zimbardo interview (June 8, 2015).

708

Kennedy interview (May 28, 2015).

709

Sternberg Presentation. Email from Mumford to Sidley (May 18, 2015).

710

APA_0248564.

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into broader scientific perspectives. He suggested that he would be interested in sponsoring a
meeting similar to the one sponsored by the FBI Academy the previous year.
Brandon and Mumford commented in a report to Salzinger that Hubbard’s interest
represented “a good opportunity to form a partnership.” Such partnerships were seen as
“mutually beneficial” in the Science Directorate:
[N]ot only do we get to help APA members offer their expertise as needed, but
the researchers are challenged by new and interesting questions. Our experience
also has been that, despite the history of distance between academia and places
like the FBI and CIA, many academics jump at the opportunity to be of service,
an attitude no doubt formed by 9/11. 711
Shortly after the lunch meeting with Hubbard, Brandon and Mumford began planning a
workshop on the topic of deception detection, to be co-sponsored by the CIA and the APA. At
the time, Brandon had left the APA and had joined the National Institute of Mental Health as a
Program Officer. 712 In March 2003, Mumford approached Scott Gerwehr, an Associate Policy
Analyst at the RAND Corporation, about participating in the upcoming workshop modeled on
the 2002 conference co-sponsored by the APA and the FBI Academy. APA first made contact
with Gerwehr in May 2002, when Brandon started reaching out to psychologists to develop a
scientific definition of deception for a group of people working for the CIA, likely Hubbard’s
branch. 713 One of her inquiries was forwarded to Gerwehr, who responded to Brandon with the
operational definition of deception he had been using in his work at RAND.714 When Mumford
contacted Gerwehr in 2003 regarding the upcoming deception detection workshop, he explained
that Gerwehr’s RAND paper, which Gerwehr had cited in his response to Brandon’s inquiry, was
“part of the inspiration” for the workshop. 715
Brandon, Mumford, Hubbard, and Gerwehr would come to serve as the planning
committee for a workshop on the topic of detecting deception for the summer of 2003, and a
workshop on the topic of interpersonal deception in the summer of 2004. Gerwehr also invited
Linda Demaine, 716 another RAND employee, to join the initial project meetings with Mumford
711

APA_0329574.

712

In 2004, Brandon left NIMH to become Assistant Director of Social, Behavioral, and Educational
Sciences at the White House Office of Science and Technology Policy. Brandon would later take a
position in Human Factors Engineering at MITRE Corporation. She is currently the Research Unit Chief
of the High-Value Detainee Interrogation Group, within the Department of Defense.
713

APA_0220432.

714

APA_0220434.

715

APA_0220439. The paper Brandon refers to is a chapter from The Art of Darkness: Deception and
Urban Operations.
716

At the time, Demaine remained employed by RAND while she worked as an APA Congressional
Fellow in the Senate Judiciary Committee. She would later serve as an APA Science Policy Fellow under
Hubbard’s supervision in the Research and Analysis Branch at the CIA between fall 2003 and fall 2004.
At the outset of her Fellowship, Demaine developed eight potential areas of research in which psychology
could contribute to the CIA’s work. APA_0128282. From among these ideas, Hubbard asked Demaine

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and Brandon in late April 2003. 717 By April 1, Brandon, Mumford, Gerwehr, and Hubbard had
all met and were making preliminary decisions regarding the timing and location of the 2003
conference. 718 Hubbard agreed that the CIA would fund the conference, including travel and
lodging expenses for conference attendees. 719
On March 15, 2003, Mumford outlined the basic parameters of the meeting, and
described the purpose of bringing together academics and operational psychologists to discuss
deception:
[The meeting] will provide those on the operational side with new strategies of
deception to use, and an increased awareness of how others might use deception.
It will provide the researchers with an opportunity to see what aspects of
deception are well-described and what aspects require further systematic scrutiny.
720

The group began circulating names of academics and agents with expertise or interest in
the topic of deception, with the researchers and academics to be identified primarily by Mumford
and Brandon and operational psychologists to be identified by Hubbard. Among the operational
participants recommended by Hubbard were Bruce Jessen and James Mitchell, whom Hubbard
initially identified only by first name and described as contractors to the CIA with “military
special ops . . . background.” 721 On March 29, 2003, Hubbard also identified Andy Morgan as a

to 1) survey the “psychological literature on belief and attitude change” and to assess “what is known
about instilling long-term changes to fundamental beliefs and attitudes,” 2) review the literature on the
“application of influence techniques cross-culturally,” and 3) work with Hubbard, Mumford, Brandon,
and Gerwehr to develop follow-up projects to the 2003 deception detection workshop. APA_0129845
(emphasis in original). Demaine consulted with Kelly regarding the topics of research, and Kelly met
with Hubbard and Demaine for lunch shortly after the Fellowship began. APA_0129034. After the
lunch, Hubbard offered to brief APA on the function of his division, and Kelly promised to keep in touch
with both him and Demaine to monitor how the Fellowship was progressing. APA_0129037. Demaine
did not receive security clearance until she was leaving Washington, D.C., at the end of her Fellowship,
and thus she did not spend a great deal of time on the CIA campus or “gain[] any insights into the CIA.”
APA_0129216. In an interview, Demaine stated that her work was entirely based on publicly available
information and did not relate to interrogations in any way. Demaine interview (May 6, 2015).
717

APA_0220454.

718

Id.; APA_0220473.

719

APA_0220466. When Mumford submitted expenses to the CIA for reimbursement, he noted to
Hubbard that APA had decided to pay for Hubbard’s hotel room. Fax Transmittal from Mumford to
Hubbard (Oct. 21, 2003).
720

APA_0220442.

721

HC00005133.

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potential participant based on his research in the area of deception with “military special ops
people.” 722
The group of organizers began inviting participants and, as they started to receive
acceptances and rejections, discussing how to balance the numbers of researchers and
operational psychologists. When one researcher whom the group felt could contribute
significantly declined to attend, they suggested turning to APA presidents to convince the
researcher to participate. Hubbard suggested “find[ing] someone like Sternberg, Zimbardo, etc.
who knows [the researcher] and could cajole him. Joe Matarazzo knows him and has called on
my behalf before . . . Joe loves to strong arm people.” 723 Hubbard later contacted Matarazzo to
request his assistance, and reported to the rest of the group that Matarazzo “loves arm twisting
and I believe he is quite effective.” 724
Ultimately, at least thirty-six academics, APA representatives, and government
representatives, including individuals from DHS, OSTP, the FBI, and the CIA, attended the
conference. The operational psychologists whom Hubbard invited were included in the
attendance list distributed to the participants, but several were identified by pseudonym or first
name only. Mitchell and Jessen were among the participants who were identified by only their
first names and as CIA contractors. 725
When the group discussed whether to record the discussions during the workshop,
Hubbard commented that “some of the ops guys might be a little nervous” with recording, but
said that he would “let them know ahead of time and if they are uncomfortable they can decline
the invite. There will be no shortage of ops people interested in attending. I may have to beat
some off with a stick.” 726 Mumford responded that it was Hubbard’s call regarding whether to
record the sessions, but he indicated that he would “hope the caveat that all recording/transcripts
would be scrubbed as deemed appropriate by CIA/RAND would be sufficient to put your people
at ease.” 727 Ultimately, they decided that the discussions would be recorded and that APA staff
would also take notes during the conference.
During the introductory remarks on the first day of the conference, the participants
described the topics in which they were interested. Mitchell expressed interest in the “practical
application and operation of deception. [He was] not looking for what is already in the literature
or in meta-analyses, [but rather w]ants to know if we are interviewing a terrorist, how can we tell
if he is lying.” Jessen expressed interest in similar topics, and was “also interested in the

722

APA_0220463; APA_0220466.

723

APA_0220478.

724

APA_0220526.

725

APA_0220633.

726

APA_0220496.

727

Id.

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relationship between two people in this interrogation situation and how this affects the
outcome.” 728
Following introductions, the participants split into groups to discuss one of four
scenarios: embassy walk-in phenomena, law enforcement threat assessment, law enforcement
interrogation and debriefing, and intelligence gathering. Hubbard had earlier developed these
scenarios as examples of the kinds of situations in which agents have to deal with deception, 729
and Brandon added a list of questions to each of the scenarios before distributing them to
participants. 730 Hubbard had also requested that Mitchell, Jessen, and Philipson be assigned to
the embassy walk-in and interrogation and debriefing sessions. He commented that Mitchell and
Jessen are “special people doing special things” and assured Mumford that he “will really like
them-great guys.” 731 In the grid used by the conference organizers to show the scenario
assignments, Mitchell and Jessen are the only participants whose names are marked with
asterisks. 732 It is likely, therefore, that Mumford and Brandon were aware that Mitchell and
Jessen were of some special importance, though it is not clear that they understood why Hubbard
was singling them out.
As the conference attendees broke into small groups, Mitchell and Jessen participated in
the “law enforcement interrogation and debriefing” panel, along with several individuals closely
affiliated with APA leadership, including Mumford, Demaine, and Kinscherff. 733 For this panel,
the primary issue of concern was that “eliciting information is an evolutionary-emergent process
that develops based on the real-time situation and direct[ion] by the interrogator/debriefer.” The
group concluded that information gathering might be facilitated by appropriate matching
between characteristics of the interviewer and interviewee, but Jessen offered the “contrary view
. . . that matching doesn’t have much effect.” The group also discussed the importance of
considering cultural issues and the role of political or religious ideology in influencing emotions
and motivations of interviewees, and noted that it may be more difficult to detect deception when
individuals believe the lies they tell. 734 Finally, the discussants considered “research challenges”
on the topic of interrogations, and raised a number of questions:
How do we find out if the informant has knowledge of which s/he is not aware?
What pharmacological agents are known to affect apparent truth-telling behavior?
…

728

APA_0220710.

729

APA_0220552; APA_0220581.

730

APA_0220611.

731

APA_0329894.

732

HC00005133.

733

Id.

734

HC00005099; APA_0220708.

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What are sensory overloads on the maintenance of deceptive behaviors? How
might we overload the system or overwhelm the senses and see how it affects
deceptive behaviors? 735
In the intelligence gathering panel, the participants discussed how best to “evaluate the
authenticity of both the source of information and the information itself.” 736 The participants
commented that there had been relatively little progress made in methodology and tools for the
field of intelligence gathering, and that any advances in asset validation had been very recent. 737
At the conclusion of the conference, Hubbard and other operational psychologists requested that
the researchers submit short research proposals.
After the meeting, Brandon joined the other organizers in expressing her appreciation for
their efforts. She commented to Hubbard that she “appreciated how Jim Mitchell kept saying
(especially on the second day), ‘this is an empirical question; we need to collect data and do
studies,’” 738 and queried whether it was a “good outcome” for Hubbard that the academic
participants would send research proposals to him. Hubbard responded that, while he would
eventually want “practical suggestions,” his main goal for the conference was to generate
“specific research ideas and initiate contracts to provide practical answers.” 739
Within APA, there was also discussion regarding the positive outcome of the conference
and its potential to facilitate future interactions with operational psychologists. On July 21,
Mumford sent an update on the workshop to Norm Anderson, Mike Honaker and the Science and
Public Policy groups: “Just a note to let you know that the APA/CIA/RAND workshop went
extremely well last week. . . . Suffice to say, psychological science is likely to play a much more
significant role within the intelligence community from now on and both the research and
operations communities looked at this as the start of a long and potentially very fruitful
collaboration.” 740 Also in July, APA published a story about the conference in SPIN, the
Science Directorate’s newsletter. The story noted that the workshop was funded by the CIA and
hosted at RAND headquarters, expressing “profound thanks to both Scott Gerwehr, Associate
Policy Analyst at RAND, and Susan Brandon, Program Officer for Affect and Biobehavioral
Regulation at NIMH, who jointly conceived of this project while Susan was still Senior Scientist
at APA” and “[s]pecial thanks to Kirk Hubbard, Chief of the Research & Analysis Branch,
Operational Assessment Division of the CIA, for generous financial support and for recruiting

735

HC00005133.

736

HC00005099.

737

APA_0330044; APA_0220709.

738

APA_0220679.

739

APA_0220686.

740

APA_0195842.

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the operational expertise and to RAND for providing conference facilities and other logistical
support.” 741
As Brandon and Mumford began to consider possible follow-up activity, they solicited
feedback from conference participants. After a month had passed, and they were still awaiting
responses from several participants, including Mitchell and Jessen, Hubbard informed them:
“You won’t get any feedback from Mitchell or Jessen. They are doing special things to special
people in special places, and generally are not available.” 742
On September 8, Hubbard hosted a meeting in his office to follow up on the deception
detection conference and plan for future conferences on related topics. 743 Brandon, Gerwehr,
Mumford, and two social scientists from the National Academies of Science, Faith Mitchell and
Chris Hartel, attended the meeting. In addition to Hubbard, Judy Philipson, Carmel Rosal, and
Jon Morris attended from the CIA. During the meeting, the group talked about cross-cultural
information that might be useful for walk-in evaluations and asset recruitment, evaluation and
management. 744 Brandon wrote to Hubbard, Gerwehr, Mumford, and Mitchell after the meeting
to share some additional thoughts she had regarding the usefulness of developing measurements
of cultural beliefs and bias. 745
By the fall of 2003, it seems likely that some members of APA staff knew enough to be
aware, had they been looking for the connection, that Mitchell and Jessen, two CIA contractors,
were interested in learning about psychological science, including the science of deception
detection, that could help interrogators to work more effectively, and that their interest might
involve research on detainees subjected to “sensory overloads” or “pharmacological agents.” As
their comments at the beginning of the workshop suggest, the ability to detect deception was the
linchpin of the interrogation program designed by Mitchell and Jessen. As Gregg Bloche
explained in The Hippocratic Myth:
It’s indeed common wisdom among political progressives that torture doesn’t
work—if, by “work,” we mean extraction of accurate information from hostile
informants. Miming communist interrogation methods . . . yields compliance of a
mindless sort: People being abused to the breaking point will say anything to get
the torture to stop. . . .
But this story overlooks a point Albert Biderman made fifty years earlier. If well
designed and strategically sequenced to reduce captives to despair, the abuses he
catalogued could “induce” a compliant state of mind. But the “shaping” of
compliant behavior was another matter. It turned on the interrogator’s perceived
741

American Psychological Association, APA Works with CIA and RAND to Hold Science of Deception
Workshop, Science Policy Insider News (July 2003), available at http://www.apa.org/about/gr/science/
spin/2003/07/also-issue.aspx.
742

APA_0220734.

743

APA_0220738.

744

APA_0220763.

745

APA_0220768.

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omnipotence—his monopoly power to punish and reward. He could use this
power as the Chinese and Soviets did, to extract false confessions. But he could
also use it to force fearful and hopeless prisoners to tell the truth—if he could
detect falsehoods in real time and punish them swiftly.
. . . Jim Mitchell believed that the stressors they’d designed to inoculate trainees
against torture could be re-mixed—and enhanced—to extract lifesaving
intelligence from actors intent on doing Americans harm. But the breaking of
prisoners, by itself, wouldn’t be enough. Biderman’s insight here was critical. 746
The interrogator would need to shape the behavior of the men he broke by
distinguishing truth from invention, then rewarding the former. 747
Thus, a conference on the topic of detecting deception would have been useful to Mitchell and
Jessen, who needed this critical skill to make their program of harsh interrogation techniques
effective.
E.

Continued Interactions with CIA Contractors

Following the “Detecting Deception” conference, APA staff and governance members
continued to have isolated contacts with the CIA and the newly-formed Counterintelligence Field
Activity (“CIFA”) agency within DoD. In late 2003, Heather Kelly had at least two interactions
with individuals who were affiliated in some way with Mitchell and Jessen or the SERE schools.
On September 24, 2003, Kelly received an email from David Ayres, CFO of Mitchell Jessen &
Associates 748 and President of TATE Inc., a firm focused on providing “personnel recovery”

746

Mitchell was clearly influenced by Biderman’s work: In response to an inquiry from Mumford
regarding Mitchell speaking at a National Science Foundation seminar on the topic of coercive
interrogations, see infra, Mitchell recommended that the seminar organizers reference Biderman’s 1962
publication “The Manipulation of Human Behavior.” APA_0028185.
747

M. Gregg Bloche, The Hippocratic Myth: Why Doctors Are Under Pressure to Ration Care, Practice
Politics, and Compromise their Promise to Heal, 135-36 (2011).
748

Mitchell Jessen & Associates was a parent of Knowledge Works, a company formed to provide
continuing education to military personnel stationed abroad. For several years, Knowledge Works was
accredited by APA as a continuing education provider, but in 2008 APA denied accreditation because
Knowledge Works failed to provide materials relating to the program content and schedule. In his
interview with Sidley, Joseph Matarazzo said that he had 1% ownership in Knowledge Works.
Matarazzo interview (May 4, 2015). However, annual reports filed by Knowledge Works do not list
Matarazzo as an owner or affiliate of the company. Rather, in a 2008 annual report filed with the state,
Matarazzo is listed as a partner of Mitchell, Jessen & Associates. Despite Matarazzo’s affiliation with
Mitchell Jessen & Associates, Mitchell and Matarazzo both independently stated that Matarazzo had no
knowledge of or involvement in any activity related to interrogation. Hubbard interview (May 5, 2015) &
Matarazzo interview (May 4, 2015). Indeed, Matarazzo described his involvement as limited to an hourlong meeting a few times a year, after which he was dismissed and the rest of the Board continued to
meet. In hindsight, Matarazzo stated that he believes Mitchell and Jessen established Knowledge Works
to provide a façade of legitimacy for their interrogation-related activities. Matarazzo interview (May 4,
2015).

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training to the Department of Defense and other government agencies. Ayres 749 sent Kelly a
“blurb” on the Special Behavioral Applications division of TATE, which specialized in applied
psychological consultation, 750 and attached the resume of Bruce Jessen, 751 who he identified as
one of TATE’s consultants. He offered to put Kelly in contact with Jessen if she “ever wish[ed]
to talk to him about ongoing research.” 752 Kelly responded to Ayres that “this guy is incredible”
and she would “like to follow up with you and him about some of this stuff!” 753
Several months later, Kelly wrote to Mumford that she had spoken to a “Dad friend” 754
who “owns the company that runs the training programs out in Washington state for the
military—the ones that simulate POW situations and run high-risk military personnel through
them,” and that “[h]e and two psychologists were the ones that did all the research that Paul
Bartone from Div. 19 reports on! 755 And he just got Joe Matarazzo to sit on the advisory panel.
They also do tons of deception stuff.” 756 Kelly suggested that she and Mumford have lunch with
this friend, and Mumford agreed that it was a “nice connection” and he would like to set up a
lunch. 757 Mumford said that he did not recognize that Kelly was referring to Mitchell and Jessen
at the time, and he did not recall ever setting up a lunch to meet with the friend. 758
Meanwhile, as CIFA began to expand its operations, APA began to bridge connections to
behavioral science staff within the DoD agency in the same way it had to behavioral science staff
in the FBI and the CIA. On February 19, 2002, DoD Directive 5105.67 established CIFA to
advance the mission of developing and managing DOD’s counterintelligence programs,
including providing support and resources to DOD personnel and creating research and
development programs. One of the directorates within CIFA was the Behavioral Sciences
Directorate, which by 2005 had at least twenty psychologists on staff to support offensive and
defensive counterintelligence efforts, including providing risk assessments of detainees held at
Guantanamo. In 2003, Scott Shumate, who had been chief operational psychologist in the CIA’s
Counterterrorism Center, joined CIFA as the director of the Behavioral Sciences Directorate. 759
749

Kelly explained that she and Ayres are on their children’s school board together. Kelly interview
(April 24, 2015).
750

APA_0129041.

751

APA_0129043. Jessen’s resume listed his experience as a senior psychologist in the SERE program
and a consultant to the CIA, FBI, DoS, DoD, DHS, NSA, DIA, and other institutions.
752

APA_0129041.

753

APA_0128723.

754

Kelly’s father is a Naval Academy graduate who served a thirty-year career in the United States Navy,
including as commanding officer of a submarine.
755

Paul Bartone is a military research psychologist who focused on understanding and measuring
resilience to stress.
756

APA_0028405.

757

APA_0028742.

758

Mumford interview (May 15, 2015).

759

Walter Pincus, Pentagon’s Intelligence Authority Widens, Washington Post (Dec. 19, 2005), available
at http://www.washingtonpost.com/wp-dyn/content/article/2005/12/18/AR2005121801006.html. In

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In April 2004, Kirk Kennedy also transferred from his position within the CIA’s Operational
Assessment Division to CIFA’s Behavioral Sciences Directorate, where he became Chief of the
National Center for the Study of Counterintelligence and Operational Psychology, reporting
directly to Shumate.
It is likely that, in the summer of 2004, Phil Zimbardo met with Kirk Kennedy, who had
only recently transitioned from the CIA to CIFA, to discuss serving in an advisory capacity to
the DoD agency. Although Sidley is not aware of any contemporaneous documentary evidence
relating to this meeting and Zimbardo could not recall having met Kennedy, 760 Susan Brandon
and Kirk Kennedy both described the meeting. Brandon said that she and Kirk Kennedy traveled
to California in 2004, while Brandon was employed by the National Institute of Mental Health,
to discuss Zimbardo’s key research priorities related to terrorism. 761 Brandon added that James
Breckenridge 762 was also part of the meeting. 763 Kennedy confirmed that he met Zimbardo at his
home in 2004 to discuss setting up an advisory board for CIFA similar to the one that Kirk
Hubbard had engaged at the CIA. 764 Although it seems likely that a meeting between Zimbardo
and Kennedy occurred, Sidley has found no evidence that APA staff facilitated, or were even
aware of, the meeting or its purpose.
F.

Awareness of Abusive Interrogations

By March 2004, the issue of abusive interrogations should have been apparent to any
informed citizen. Although the media reports at this time generally focused on abusive
techniques rather than on the reasons for such techniques, some early reports, such as the
Washington Post’s 2002 reporting, clearly identified that such tactics were being used at
interrogation centers. 765 Moreover, only a limited number of explanations for using such

2008, DoD disbanded CIFA when it combined counterintelligence and human intelligence functions in
the Defense Counterintelligence and Human Intelligence Center, within the Defense Intelligence Agency.
760

Zimbardo interview (June 8, 2015).

761

Brandon referenced APA_0019427 as the subject of her meeting with Zimbardo and Kennedy.
Brandon interview (May 26, 2015). Another communication indicates that she and “Kirk” met with
Zimbardo and Bruce Bongar in early July to discuss suicide terrorism research. APA_0028186.
762

Zimbardo and Breckenridge launched the Department of Homeland Security-sponsored Center for
Interdisciplinary Policy, Education, and Research on Terrorism (CIPERT) in 2007 to “promote the
scientific understanding of the causes and effects of political violence . . . and translate this understanding
into effective policy, education, and research.” Center for Homeland Defense and Security, Pacific
Graduate School of Psychology and Stanford Professors Team Up to Launch Think Tank on Terrorism
(Apr. 19, 2007), available at https://www.chds.us/?press/display&article=cipert.html.
763

Brandon interview (May 26, 2015).

764

Kennedy interview (May 28, 2015).

765

Dana Priest & Barton Gellman, U.S. Decries Abuse but Defends Interrogations, Washington Post
(Dec. 26, 2002), available at http://www.washingtonpost.com/wpdyn/content/article/2006/06/09/AR2006060901356.html.

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techniques are apparent. One potential explanation was that military and intelligence personnel
were abusive towards detainees as a means of acting out their anger or sadistic impulses. But the
far more likely explanation is that these personnel were abusing detainees in an attempt to break
them down and then extract information from them. Therefore, a reasonably sophisticated
consumer of these news reports, especially a psychologist whose training would have attuned
him to the risk of serious psychological harm from such tactics, likely would have a sense that
the harsh tactics were being used in interrogations, even if the reporting did not clarify the
context.
In addition, APA staff in the Science Directorate were privy to some information suggesting
that Mitchell and Jessen were involved in interrogations and that their activities might raise some
concerns about potentially harsh techniques. From Mitchell and Jessen’s comments at the 2003
CIA- and RAND-sponsored conference, it is likely that Science Directorate staff, particularly
Geoff Mumford, knew that Mitchell and Jessen were interested in using psychological science on
deception detection as it related to improving the effectiveness of interrogations and interviews
of terrorists. If Science Directorate staff did not know that the research discussed at APA-hosted
conferences was being used to support interrogation activities, it was due to the determinedly
agnostic attitude of staff. In the face of substantial indications that the CIA was using
psychologists to conduct interrogations that might include abusive tactics, Science Directorate
staff intentionally avoided making inquiries that would produce more information. Therefore,
although it is not likely that APA staff had been read into the CIA’s interrogation program, the
level of public information available and their encounters with the principals involved in the CIA
interrogation program by March 2004 should have alerted them to at least the possibility that the
CIA was conducting abusive interrogations and was drawing on psychologists and psychological
science to do so.
V.

ETHICAL RUMBLINGS: MARCH 2004 – JULY 2004
A.

Ethical Inquiries from CIA

Prior to March 2004, the vast majority of interactions between APA and the intelligence
community had been centered in the Science Directorate, where staff focused on building
relationships in which they could demonstrate the value of psychological science to various
agencies. In March, however, an inquiry from Kirk Hubbard at the CIA, pulled the APA’s
Ethics Office, directed by Steve Behnke, into conversations regarding the role of psychology in
national security situations.
On March 11, 2004, Mumford put Hubbard in touch with Behnke and Kinscherff to
“discuss some issues related to the ethics codes that govern psychologists and psychiatrists in
settings where our national security interests are at stake,” 766 which Hubbard had raised.
Hubbard then emailed Behnke and Kinscherff the following:
Geoff Mumford provided your names as potential resources to provide guidance
on the APA’s code of ethics and some of the new and unique demands being
placed on psychologists in response to countering terrorism.
766

APA_0019174.

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By way of introduction, I am the Chief of the Behavioral Sciences Staff at the
Central Intelligence Agency. Our mission is to conduct applied behavioral and
social science research to support the collection and analysis of human
intelligence and to support special projects involving counterterrorism efforts.
One of my staff, Andy Morgan, M.D. (cc’d above) have [sic] been discussing a
problem that is experienced by both psychiatrists and psychologists, alike. Both
specialties are being asked to provide consultation to law enforcement, the
military, and other organizations that have a role in national security.
Unfortunately, some of what they are asked to do runs counter to the American
Psychological Association and American Psychiatric Association’s code of ethics.
For example, military psychologists are often asked to assist in questioning or
“interrogating” foreigners detained in Afghanistan and Iraq. Psychiatrists are
often consulted by law enforcement to provide consultation on apprehending
and/or questioning subjects suspected of committing major crime.
Andy and I were wondering if both our APA’s (Andy is a psychiatrist) shouldn’t
begin to examine our respective code[s] of ethics to account for these new
situations where the subject is not the client/patient, and the subject’s rights can
arguably be subordinate to the needs of national security. Do either of you have
any thoughts on this issue, and how we might pursue this in the professional
community? 767
The two individuals raising these ethical issues, Kirk Hubbard and Andy Morgan, spoke
with Sidley about the issues that had prompted them to reach out to the APA. Hubbard did not
think that he would have raised these ethical concerns on his own initiative; rather, he surmised
that others, perhaps individuals who were working under cover, had asked him to reach out to the
APA on their behalf. 768 He added that Scott Shumate had raised similar concerns after returning
from a CIA black site, 769 and concluded that the inquiry was probably an attempt by some people
to “cover their butts.” 770
In contrast to Hubbard’s explanation that this email was intended to provide cover,
Morgan thought that they needed to clarify what military psychologists were able to do to assist
with interrogations. 771 Morgan remembered having discussions with Hubbard in which they
agreed that when a psychologist evaluates a prisoner, the prisoner is not “the client.” He was not
certain that the codes of ethics of the professional associations provided sufficient guidance in
767

APA_0084694.

768

Hubbard interview (May 5, 2015).

769

Shumate was present for the interrogation of Abu Zubaydah at a CIA black site in Thailand. Katherine
Eban, Rorschach and Awe, Vanity Fair (July 2007), available at
http://www.vanityfair.com/news/2007/07/torture200707.
770

Hubbard interview (May 5, 2015).

771

Morgan interview (May 29, 2015).

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this context, so he wanted to make things safe for psychologists and obtain ethical guidelines that
would outline the “rules of the road” in national security contexts. 772
Morgan was also concerned, however, that psychologists might begin to participate as
interrogators, which is a role that is beyond their training and competency. He referenced
Jessen’s attempt to act as the interrogator at the SERE schools, and commented that he
personally knew of psychologists who had been deployed to Guantanamo and been placed in
roles that were different from what they had been told before deployment. Morgan said that his
goal in reaching out was to clarify what psychologists would be asked to do when assisting with
interrogations, and to ensure that psychologists had the authority to refuse orders if those roles
extended beyond their training. 773
In response to Hubbard’s inquiry, Kinscherff explained that the Codes were likely to be
applied in a “fact sensitive” way that permits “the interpretation that the ‘client’ is not the
suspect/target individual.” He also commented that there may be situations in the national
security context that the code did not contemplate:
For example, under what circumstances might a psychologists deceive a third
party by identifying him/herself as the treating professional for the third party,
assure the usual protections of confidentiality and privilege, and then provide
otherwise protected information to law enforcement or intelligence? Permit the
sessions to be secretly recorded? Use the sessions to introduce false or
misleading information to the person who believes him/herself to be the patient of
the psychologists? . . .
Or, at what point does the advice that a mental health professional provides in
consulting on coercive interrogation technique[s] begin to push the boundaries of
what would be acceptable?
The codes simply did not contemplate circumstances where the law
enforcement/national security interests might trump the ethical/legal interests of
the identified patient/third party/target individual.
Kinscherff also proposed gathering together some of Hubbard’s staff with staff from APA and
ApA to discuss and sharpen these issues, and prompt an “evolution of a consensus that might
eventually be reflected in the professional ethics codes of the professions.” 774 Kinscherff
forwarded his responses to Behnke, Mumford, Anderson, and Honaker, commenting that “this is
an extraordinary opportunity to actively engage with the law enforcement and national security
communities regarding some very challenging issues.” 775

772

Id.

773

Id.

774

APA_0019343.

775

Id.

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Morgan also forwarded Hubbard’s email to two psychiatrists, with whom he had
discussed holding a meeting regarding ethics and national security. Behnke and the two
psychiatrists then engaged in preliminary discussions regarding a collaboration on future
working groups, 776 which later ripened into a meeting for government psychologists and
representatives of the professional associations hosted by the APA on July 20.
After several weeks passed without further action within APA, Mumford contacted Steve
Breckler, Executive Director of the Science Directorate, and urged him to “follow-up as its [sic]
another ‘teachable moment’ and may represent an opportunity to be out front in a collaborative
effort (with ApA) at a time when collaboration with CIA on other fronts carries with it a
significant liability.” 777 Mumford also forwarded the entire exchange to Brandon, and explained
that he wanted to get a sense of whether Breckler would “champion” the effort before getting
“too many people whipped up.” He added that “part of the pushback might be coming from
Stephen Behnke only because we’ve (he) just finished re-writing the ethics code and probably
sees this as a can of worms.” 778 Breckler followed up with Honaker and Behnke to comment
that this issue “seems like a golden opportunity for APA to step up to the plate on issues that are
gaining a lot of public attention and scrutiny,” and Behnke agreed that “[t]his is a wonderful
example of psychology being able to make a contribution regarding a pressing, high-profile issue
of national importance.” 779
Even at this early stage in APA’s consideration of ethical issues in the national security
context, the APA’s internal discussions suggest that a primary issue of importance to APA was
messaging and publicity. Though it is likely that APA staff were motivated by the goal of
providing substantive guidance to military psychologists as well, their initial internal
communications turned on the opportunity to take the lead on an issue that was drawing public
attention. Throughout the APA’s consideration over the next several years of the ethical issues
raised by psychologists working in nationals security, considerations of messaging and public
image would continue to dominate the conversation.
B.

FBI and NIJ Conference: “The Nature and Influence of Intuition in Law
Enforcement: Integration of Theory and Practice”

In September 2003, after preliminary discussions with Tony Pinizzotto from the FBI,
Brandon and Mumford began considering “intuitive policing” as a topic for the next conference
bringing together operational psychologists and researchers. 780 Mumford and Brandon reached
776

APA_0054281.

777

APA_0019855.

778

APA_0020155.

779

HC00005180.

780

APA_0220767. In the midst of planning this workshop, Brandon was appointed Assistant Director of
Social, Behavioral and Economic Sciences at the White House Office of Science and Technology Policy.
As Assistant Director, Brandon would have reported to an Associate Director of Science, who in turn
reported to the Director of OSTP. In that role, she worked to promote the behavioral sciences as a useful
tool, but she lamented to Mumford that she had difficulty gaining traction and, in her discussions about
counter-terrorism with Marburger, “using behavioral science as a strategy was clearly still not on the list

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out to Bryan Vila at the National Institute of Justice for support, and they soon developed a
proposal for a workshop sponsored by the FBI and the NIJ. The invitation to the workshop
described its goal as “to shape a research agenda that will investigate and improve the decisionmaking tools that police use to direct suspicion, detect lies, and guide investigations,” with a
focus on intuition and “gut responses.” 781
By March 2004, the organizers had identified and secured acceptances from many
operational participants and researchers. 782 In April, Hubbard emailed Mumford and Brandon to
ask that Kirk Kennedy be added to the invitation list. He explained that Kennedy had recently
left the CIA to become head of a research unit within CIFA that was similar to Hubbard’s unit in
the CIA. 783 Hubbard also suggested that Bob Mericsko, who ran Deception Detection and
Analyst of the Future programs at the CIA’s Intelligence Technology Innovation Center, receive
an invitation. 784
Ahead of the meeting, Brandon and Mumford shared the agenda for the break-out
sessions with facilitators. The goal of the sessions was to develop and deliver research on
“intuition” that might be useful to law enforcement by assessing “what is known, and what is not
known about the cognitive, emotive, and action processes that we are collectively referring here
to as ‘intuition.’” 785
At the meeting, Sarah Hart from NIJ, Steve Band from the FBI Academy, and Robert
Kinscherff 786 gave introductory remarks before the group broke into three smaller sessions. In
each of the breakout groups, the participants addressed the same set of questions relating to
whether intuition exists, whether it is innate or learned, and whether it can be deliberately taught
and sharpened as an intentional skill. The groups seemed to conclude that intuition is highly
error-prone, but that it is a skill that can be learned and strengthened through experience. In the

with him.” APA_0020708. As part of her new role, Brandon contributed to a report prepared by the
Subcommittee on Social, Behavioral and Economic Sciences to address how “social, behavioral, and
economic sciences are immediately applicable to strategies that can enhance the Nation’s capacity to
predict, prevent, prepare for and recover from terrorist attacks.” APA_0020876. Although Mumford
jokingly began referring to Brandon as “White House Susan” or “Oval Office Susan” during this time
period, it is unlikely that Brandon, who was several levels removed from the Director and finding
difficulty implementing her agenda, had significant influence in the Bush Administration.
781

APA_0018929.

782

One of the operational participants asked if there might be an opportunity to speak to the members of
the group with security clearance, but there is no evidence that such a discussion ever happened.
APA_0220996.
783

APA_0019360.

784

APA_0020664.

785

APA_0028295.

786

As Brandon and Mumford began to prepare the agenda, Kinscherff made it clear that he did not want
his affiliations disclosed to participants. APA_0029245.

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afternoon, the breakout groups addressed potential directions for research on intuition, such as
identifying characteristics of highlight intuitive people. After the breakout sessions concluded,
Kinscherff summarized the discussion from the various groups: “Most groups were
uncomfortable with the word ‘intuition.’ However, most participants agreed that intuition or
whatever it may be called is pre-conscious but based on sensory input. . . . Experience is a key
component of developing the capacity for intuition, but that capacity may not transfer across
contexts.” 787
On the second day of the meeting, several researchers and academics gave short
presentations on their research as it related to intuition and implicit biases. Many operational
psychologists also shared issues in their work that would be promising areas for research. 788 A
participant in the conference stated that she could not recall any discussion about psychologists
participating in interrogations, despite the fact that the Abu Ghraib photographs had only
recently leaked to the public. 789 At the conclusion of the meeting, the group developed a
research agenda, and the organizers urged conference participants to comment on the proposed
research topics.
C.

CIA Conference: “Interpersonal Deception: Integration of Theory and
Practice”

While Brandon and Mumford planned the intuitive policing workshop with contacts at
the FBI and NIJ, they remained interested in deception issues. 790 In March 2004, Brandon
suggested to Demaine, Hubbard, Gerwehr, and Mumford that they consider asking a subset of
the group to stay for an additional day of meetings focused on deception and deception
detection, 791 to be funded by the CIA and RAND. 792 The workshop was designed to address the
basic question of how to effectively deceive on an interpersonal level. The meeting’s dual goals
were to describe the current state of scientific knowledge on effective interpersonal deception
and to create an agenda for further empirical research on the issue.
Invitations were extended to a subset of the participants in the previous day’s intuitive
policing conference, as well as some additional operational personnel and researchers with a
special interest in deception. Participants included representatives from the CIA, DoD Special
Operations, CIFA, DHS, the Secret Service, and law enforcement agencies in the United
Kingdom, in addition to a cadre of researchers and academics. 793 Hubbard specifically
suggested that Judy Philipson attend because “she works alot [sic] in the area of deception, not to
787

APA_0021167.

788

Id.

789

Davis interview (May 5, 2015).

790

During this time period, the Science Directorate had also organized a briefing on the topic of
“Detecting Deception: Research to Secure the Homeland.” APA_0018582.
791

APA_0018928.

792

APA_0019242.

793

APA_0028283.

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mention being our terrorism guru.” He added that it was “probably more important that she and
Andy [Morgan] attend than me, actually.” 794
The workshop was organized into three panels, which presented on operational
challenges in interpersonal deception and deception detection, technological advances and
behavioral challenges, and empirical and ethical challenges. At each of the panels, a group of
between three and five academics or researchers presented their research to the rest of the
group. 795 One of the participants in this workshop said that the research presentations were made
to a group of individuals who did not introduce themselves, whom the participant understood to
be individuals from the Defense Intelligence Agency. 796
After the pair of conferences at the end of June, Mumford and Brandon continued to
collaborate on conferences throughout the fall of 2004. In October, APA and DOJ co-sponsored
a conference on the topic of “Suicide Terrorism,” which Robert Kinscherff moderated, and in
November, APA and DHS co-sponsored a conference on the topic of “Charting a Course for
Homeland Security Strategic Studies.” 797
D.

The Task Force on the Psychological Effects of Efforts to Prevent Terrorism

As APA gained a growing awareness of the effects of the Bush administration’s policies
on interrogations, senior staff nonetheless dampened membership activity that could be
perceived as opposed to the administration. In February 2003, Council allocated funds to
support a newly-formed Task Force on the Psychological Effects of Efforts to Prevent
Terrorism, 798 to be chaired by Paul Kimmel. Philip Zimbardo, former president of the APA,
was a member of the task force, as were Nina Thomas and Michael Wessells, both of whom
would later be selected as members of the PENS Task Force. 799
In a subsequently published book, Kimmel explained that the Task Force produced a
report designed to examine the effects and unintended consequences of strategies adopted by the
U.S. to prevent terrorism. The Task Force concluded that the stressful environment created by
the war on terror “often leads authorities to overestimate the threat and consequences of terrorist
activities and to make poor decisions in trying to prevent these activities.” 800 It recommended
that “psychologists take the lead in providing impartial and objective information about terrorism
and efforts to prevent it. We can use our knowledge about enemy images, stereotyping of other

794

APA_0028274.

795

APA_0028283.

796

Davis interview (May 5, 2015).

797

APA_0022999; APA_0023000.

798

Draft Minutes of the Council (Feb. 14–16, 2003) (on file with Sidley).

799

APA_0021063.

800

Paul Kimmel & Chris E. Stout, Collateral Damage: The Psychological Consequences of America’s
War on Terrorism, xvi (2006).

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groups, and the processes of group think to open a space for debate, discussion, and interpersonal
engagement.” 801
Almost from the beginning, APA staff and governance worked to undermine the task
force’s efforts. In April 2003, Judy Strassburger, Norman Anderson, and Robert Sternberg
discussed “trimming” the Task Force on the Psychological Effects of Efforts to Prevent
Terrorism as a means of “getting the task force going.” They agreed to deliver the request to
Paul Kimmel, who chaired the task force, after the Board meeting so that they “could say the
Board discussed and feels” that reducing the size of the task force is appropriate. 802
In early May, the task force produced a report consisting of an introduction by Kimmel
and a compendium of thirteen papers from the members of the task force. The report assessed
the psychological effects of “living in a nation ‘at war’” with terrorism, including stereotyping
and bias against immigrant populations, a growing sense of fear and helplessness in traumatized
populations, and a burgeoning sense of “militant patriotism.” 803 By mid-July, senior staff in the
APA were becoming more concerned about possible media attention devoted to the task force’s
report because it could do “real harm to APA’s public image.” 804 Farberman expressed concern
with “the slant of the report (anti-Bush) and some of the specific language,” including phrases
such as “militantly patriotic policies” and the sentiment that the “current administration has
weaponized fear in the war on terrorism.” Farberman also identified “some ‘science’ problems”
with the report, and commented that she hoped that Council would either edit or refused to
accept the report. Strassburger suggested putting the issue on the agenda for a Board executive
session, and Anderson agreed that the Board needed to give Farberman some “cover.” 805
At the July 27, 2004 executive session of the Board meeting, the Board requested that
Board member Sandra Shullman ask Kimmel to consider postponing the presentation of his
report until the February 2005 Council meeting to allow time for the Boards and Committees to
review the report. 806 At the upcoming Council meeting only a few days later, Kimmel was
approached by President-elect Ronald Levant, Rhea Farberman, Nina Thomas, and Sandra
Shullman, who convinced him that the APA could only “receive” the report but not take action
on it in its current form, and that it would be best to send the report for approval through the
Boards and Committees. 807 Kimmel accepted their guidance and amended the report before
submitting it to several interested boards and committees. 808
801

Id. at xvii.

802

APA_0179365.

803

APA_0021063.

804

APA_0189542.

805

Id.

806

Approved Minutes of the Board (July 27 & 30, 2004) (on file with Sidley).

807

Bryant Welch, The American Psychological Association and Torture: The Day the Tide Turned,
Huffington Post (Aug. 21, 2009), available at http://www.huffingtonpost.com/bryant-welch/theamerican-psychologica_b_242020.html.
808

Kimmel interview (May 12, 2015).

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In August 2004, Kimmel explained that he had complied with APA staff’s
recommendation to postpone his presentation of the report to Council only because he
understood “that going through the Boards and Committees was necessary for adoption which is
a stronger action [than Council receiving the report] and allows APA to do more to use and
publicize our work.” 809 Farberman drafted a response to explain to Kimmel that the report
would be included as an item in the cross cutting agenda at the Board and Committee
consolidated meetings, and that after the report was reviewed by the full governance structure,
Council could choose to receive the report. Anderson commented to staff that he “didn’t get the
sense from the board that we wanted to move the report toward adoption.” 810
The report was placed as an agenda item in the Fall Consolidated meetings. 811 After
several months of deliberations, the Board recommended to the Council that the report of the
task force should be rejected in its entirety. 812 At the following Council meeting, Council
approved a motion that “thank[ed] the Task Force on the Psychological Effects of Efforts to
Prevent Terrorism and refer[red] the Report of the Task Force to the Board of Scientific Affairs
to provide perspective and encourage further development of these topics.” 813 Kimmel said that
Levant skipped over the presentation of the report in the agenda and pushed discussion back until
the end of the Council meeting, when he recorded a unanimous vote rejecting the report despite
several votes in favor. He explained that because of this omission, he did not have time to
present any information or speak in support of the report. 814 APA never accepted the report in
any form, and it was eventually published with an independent publisher under the title
“Collateral Damage: The Psychological Consequences of America’s War on Terrorism.”
The APA’s response to Kimmel’s task force demonstrates that, by 2004, the APA was
guided by political considerations to obstruct member initiatives that were critical of Bush
administration policies in the war on terror. There might have been legitimate concerns about
the scientific basis of the report, as Farberman described, or those concerns might have been
pretextual; regardless of the validity of the scientific concerns, however, it is clear from internal
communications that APA’s motivation in discouraging the acceptance of this report was at least
in part based on an effort to appease the Administration. In short, APA staff used internal
governance processes to hold back membership initiatives that expressed criticism of the
government’s counterterrorism initiatives out of fear of angering the Bush Administration.
E.

Abu Ghraib Media and Internal Response

In April 2004, reports of abuses at Abu Ghraib began to receive widespread media
attention. As media scrutiny of detainee abuses intensified, APA began receiving inquiries about
psychologists’ involvement in torture, either through designing interrogation techniques,
809

APA_0189330.

810

Id.

811

APA_0021063.

812

Approved Minutes of the Board (June 10–12, 2005) (on file with Sidley).

813

Approved Minutes of the Council (Aug. 17 & 21, 2005) (on file with Sidley).

814

Kimmel interview (May 12, 2015).

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facilitating interrogations, or “looking the other way” when abuses occurred. 815 In response to
such inquiries, Behnke emailed a senior group of staff and governance members the following:
These are, obviously, complicated issues, and psychologists working for various
parts of the government are involved in investigations that implicate national
security. In the past few months, our folks in the Science Directorate (Geoff
Mumford) have been approached by people in government wanting to discuss the
ethics of psychological techniques being used in government investigations. I
think there are appropriate and inappropriate ways for psychology to be involved,
and would suggest a cautious approach, where we, as an organization, look at the
issues in a considered and thoughtful manner, perhaps by way of a task force.
At the moment, there are intense feelings about this issue. I would recommend a
reply that conveys our appreciation of the seriousness of the matter and our
interest in identifying the ethical issues that arise when psychology is used as an
investigative tool. I would recommend against a reply that casts a shadow on
psychologists who work for government agencies in investigative roles, or a reply
that suggests that, by virtue of recent events, such psychologists are under some
sort of suspicion. Rather, I would suggest that it is in everyone’s interest that as
an organization we are as helpful as we can be in promoting the ethical role of
psychology in investigations, including investigations to protect our national
security, and that we want to do what we can as an organization to discourage
investigative techniques that are not consistent with our ethics. 816
This was the first time that Behnke raised the idea of a task force to address ethical issues
raised in national security contexts. Notably, even from this early date, Behnke took the
approach that it was appropriate for psychologists to be involved in national security
investigations, and that it was important to support psychologists working in such roles.
Although these press reports and member inquiries do not prove that APA staff knew that
psychologists were facilitating interrogations using abusive techniques, the internal APA
communications as of May 2004 are sufficient to demonstrate that senior APA staff should have
been on notice that psychologists were working in environments where such abuses were
rampant. At that time, senior staff in the Ethics Office and Science Directorate were aware from
Hubbard’s earlier inquiries that psychologists were being asked to participate in activities at
Guantanamo in ways that raised potential ethical issues. In May, APA staff also learned that
Larry James was being deployed to Iraq “to be Chief Psychologist at that prison,” presumably
Abu Ghraib. 817 Therefore, it seems likely that APA staff were aware that psychologists were

815
816

APA_0084947; APA_0021277.
APA_0084947.

817

APA_0030148. In June 2004, Anderson reached out to James to confirm that he had been assigned to
this role, but then quickly retracted the question because he was sure it was “confidential even if true.”
APA_0189751. When James’s convoy was attacked, a senior staff member in the Education Directorate
notified Anderson and informed him that James had returned from Iraq. APA_0186135.

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working in settings where detainees were being subjected to abuse, and that they were being
faced with the ethical dilemmas presented by those abuses.
F.

The Legal Framework

In May, as concerns about prisoner abuses at Abu Ghraib spread, Heather Kelly, Geoff
Mumford, and Steve Breckler began working to put together a congressional briefing that would
educate congressional staff and federal agency personnel regarding psychological science related
to the issue of prisoner abuse. They scheduled the briefing for June 10, and began recruiting
speakers for the event. 818 By early June, they had determined that Steve Breckler would present
on the topic of “How can the Science of Human Behavior Help us Understand Abu Ghraib?” and
Kevin Murphy819 would present on the topic of “How can Psychological Research in Military
Contexts Help Us Prevent Another Abu Ghraib?”820
On June 9, the day after the Washington Post broke the story publicizing the contents of
the OLC memoranda and the day before the scheduled briefing, Mumford began reaching out to
his contacts in the government to express concern about how the story might affect the following
day’s briefing. He asked Gerwehr to participate in a “semi-emergency call triggered by the DoJ
memo and our briefing tomorrow,” 821 and reached out to Hubbard for advice regarding questions
that might arise around the memo. 822 There is no evidence showing that either Hubbard or
Gerwehr discussed the memoranda with Mumford before the briefing.
In an internal discussion with APA staff and the two speakers for the briefing, Mumford
expressed concern over the references to “psychological techniques” the Post made when
discussing the OLC’s definition of torture. 823 Murphy responded that “[t]he thing that makes
this especially worrisome is that if the White House, DOJ, and DoD were being advised by
counsel that anything goes during time of war, the admonition that everything needs to be done
in a legal way does not do much good.” 824
This exchange demonstrates that APA staff were aware that the definitions used in the
OLC memos rendered bare statements regarding prohibitions on torture toothless. The June 7
Wall Street Journal article about the report of the working group from March 2004 and the June
818

Kelly initially invited Zimbardo and Sternberg, but Zimbardo declined due to scheduling conflicts.
APA_0128869.
819

Kevin Murphy is an academic psychologist at Pennsylvania State University, and past president of
APA Division 14, the Society for Industrial and Organizational Psychology.
820

Representative Ted Strickland had also planned on delivering remarks at the briefing, but was unable
to attend after a change to the congressional schedule. Heather O’Bierne Kelly, June 10th Congressional
Briefing on Abu Ghraib, Society for Industrial and Organizational Psychology (Oct. 2004), available at
https://www.siop.org/tip/backissues/Oct04/22kelly.aspx.
821

APA_0028361.

822

APA_0028813.

823

APA_0028817.

824

APA_0029487.

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8 Washington Post article about the OLC memoranda indicated that the rules and standards
regarding torture were no longer clear-cut, and that it was not feasible to rely on the legal
framework to prevent activities that could amount to torture. Even had APA staff failed to
understand that point, Murphy made the connection and raised the explicit concern to Behnke
and other APA staff that relying on legal guidelines to prevent torture would be inadequate.
Thus, it is not credible that APA would think a prohibition on “torture” was sufficient guidance
during the work of the PENS Task Force the following year.
G.

Requests for Ethical Guidance

After the Abu Ghraib abuses came to light, APA staff stated in internal communications
that they began to field a greater number of inquiries from government personnel regarding “the
ethics of psychology as a tool in national security investigations.” 825 Behnke elaborated in an
email to Russ Newman that “in the past few months, the Science Directorate has been
approached by people in government wanting to discuss the ethics of psychological techniques
being used in government investigations.” 826 In an interview, Behnke stated that his reference to
inquiries from the government related solely to the email from Kirk Hubbard in March 2004. 827
It seems unlikely that Behnke would write that the “tempo” of the discussions prompted “by
people in government wanting to discuss the ethics of psychological techniques being used in
government investigations” 828 was increasing if he were referring to only the single inquiry from
Hubbard. However, Sidley found no evidence of other inquiries made to the APA during this
time.
Senior staff began discussing how best to bring colleagues from the CIA into the
discussion. Mumford suggested that Hubbard might be interested, though he was “more
involved in recruiting assets,” and that Andy Morgan “may know more about the PsyOps stuff”
because of his role in training DoD personnel to resist interrogation, and was “the one who really
wanted to see this be an APA/ApA collaboration.” 829
By late April, it seems likely that APA’s discussions regarding the ethics of national
security interrogations had reached some of their contacts in the military. At that time, Larry
James reached out to Anderson to request that he be permitted to serve on a “sub-committee on
terrorism” that he had heard APA was forming. 830 James’s request suggests that, even before the
APA formally convened a meeting to discuss the ethical issues, there might already have been
internal discussion of a future task force or other working group to discuss ethical issues raised in
the national security context.

825

APA_0242896.

826

APA_0022593.

827

Behnke interview (May 22, 2015).

828

APA_0242896.

829

APA_0020325.

830

APA_0189751.

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In May 2004, APA staff met internally to plan a meeting that brought together
individuals from the mental health professions and government agencies for a discussion of the
issues. In the invitations Behnke subsequently circulated to government personnel, he
emphasized that:
The purpose of this meeting is to bring together people with an interest in the
ethical aspects of national security-related investigations, to identify the important
questions, and to discuss how we as a national organization can better assist
psychologists and other mental health professionals [to] sort out appropriate from
inappropriate uses of psychology. We want to ask individuals involved in the
work what the salient issues are, whether more or better guidance is needed, and
how best to provide guidance (e.g., through ethics consultations) that may be
deemed appropriate or helpful. I would like to emphasize that we will not
advertise the meeting other than this letter to the individual invitees, that we will
not publish or otherwise make public the names of attendees or the substance of
our discussions, and that in the meeting we will neither assess nor investigate the
behavior of any specific individual or group.
...
The Ethics Office and Science Directorate would like to take a forward looking,
positive approach, in which we convey a sensitivity to and appreciation of the
important work mental health professionals are doing in the national security
arena, and in a supportive way offer our assistance in helping them navigate
through thorny ethical dilemmas, if they feel the need (informal conversations
with people in the field suggest the need is there). 831
Behnke’s communications with respect to the meeting at APA in July 2004 demonstrate
that long before the PENS Task Force was created, Behnke’s position was that the APA should
be supportive of psychologists working in national security settings and should work to construct
an ethical framework that allowed them to remain in those roles. In an interview with Sidley,
Behnke explained that this forward looking approach is consistent with his general outlook on
ethics, in which the primary focus is on education and consultation rather than adjudication. It
seems fair that Behnke’s general approach to his role as Ethics Director emphasized forwardlooking consultation over backward-looking adjudication; however, that his preferred approach
was to provide consultation and guidance does not inevitably lead to the conclusion that the
ethically appropriate guidance would permit psychologists to participate in interrogations.
Behnke’s early communications on issues related to ethics and national security demonstrate that
he assumed the appropriateness of psychologists participating in such roles, and that he and APA
then constructed an ethical framework on the basis of that assumption.
Although it seems clear that Behnke arranged the July 2004 meeting in the context of
Hubbard’s inquiries from March 2004, other individual identified to Behnke and Science
Directorate staff ethical issues associated with the potential for exploitative research on
deception detection. In early May, Martha Davis responded to a request from Susan Brandon for
831

APA_0058091.

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research ideas extending into the next decade. Davis commented that “research on deception
detection in real world contexts” will have developed over the years, and “[t]hat leaves the
political and ethical issues surrounding a subject that is exquisitely vulnerable to distortion,
oversimplification and abuse.” She trusted that APA would continue to strengthen ethics
guidelines in this area, but commented that “what feels well beyond my realm as a researcher are
the political forces which can push the research forward, shaping and potentially exploiting it in
ways that are empirically and ethically suspect.” 832 Jennifer Vendemia, another researcher
focusingon deception issues, raised similar points about ethical dilemmas in the area of deception
research. 833 She commented that an organization “must be founded that deals exclusively! With
the ethical dilemmas of [deception] research. Deception research will be applied to the theatre of
war, one on one interrogations, and screening applications. . . . We are talking about a huge
change in the way psychologists work with the government, and we need to not only have
protection but also safe ethical guidelines.” She asked Brandon who she could talk to about such
an effort at APA, and Brandon forwarded her inquiry to Mumford, who then forwarded it to
Behnke. 834
These concerns mirrored the ethical concerns that had been raised by physicians and
psychologists in the CIA’s Office of Medical Services since the interrogation program began.
One witness stated that the idea of research on the interrogation program was “alive and well”
within the CIA, despite agreement within OMS that such research was unethical without
informed consent. However, this witness knew of no link between APA and any research
program the CIA might have conducted, and he explained that any changes in the APA Ethics
Code to permit such research would have had no effect on federal law set by the Department of
Health and Human Services. 835 Thus, as discussed above, regardless of whether or not DoD ran
research program on detainee interrogations, Sidley has uncovered no evidence that APA
facilitated such research.
However, even if APA was unaware of research programs run by the CIA and DoD or
ethical concerns regarding such research raised internally within the CIA, these communications
show that as of summer 2004, Behnke had been placed on notice that research on deception in
the national security context raised complicated ethical issues. Despite these issues raised by
researchers participating in APA-sponored conferences, during the PENS meeting more than a
year later, a group designated to consider ethical issues in precisely this context recommended
pursuing research related to interrogations without addressing the obvious concerns.
H.

Additional Interactions with Mitchell and Jessen

In mid-June, Hubbard and Mumford exchanged emails relating to the possibility of Jim
Mitchell participating in a seminar hosted by the National Academies of Science (“NAS”) on the
topic of coercive interrogations. The NAS was hoping to find individuals to represent a range of
832

APA_0020261.

833

APA_0084997. Vendemia, a participant in the July 2003 conference sponsored by the CIA, was a
recipient of large government grants in support of her research in deception detection.
834

APA_0020868.

835

Morgan interview (May 29, 2015).

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perspectives on coercive interrogation, and turned to the Science Directorate for
recommendations for “speakers who would SUPPORT coercive interrogation tactics.” 836 In
response to this same request, Mumford also reached out to Robert Kinscherff, who suggested
that Behnke might have contact information for Michael Gelles or Robert Fein. 837
Hubbard informed Mumford that “Jim” would likely not be able to participate because
“Jim and Bruce will both be in Hawaii on July 30.” Hubbard added that he “would hope you
could assist in ensuring that their association with my organization is not divulged [if they were
to participate]. The[y] have significant prior DOD experience in this area and now have a
private consulting business.” Mumford assured Hubbard that “we always aim to be very discreet
in making any associations with your organization and don’t want to (and won’t) do anything to
jeopardize our harmonious working relationship.” 838
Only a few weeks later, Mumford emailed Steve Breckler about a potential meeting with
two “former CIA staff psychologists (known only to me as Jim and Bruce) who have been
intimately involved in setting up the protocols for interrogation in Iraq and elsewhere. It
obviously wouldn’t be for attribution but might be an interesting opportunity for us to have a
better understanding of what goes on inside. . . .” 839 Mumford later told Brandon that Hubbard
was arranging the meeting to discuss “interrogation practices,” and that it was likely that she
would be able to join. 840 There is no documentary evidence showing that this meeting ever
occurred, and Mumford could not recall any follow up to the email. 841 It is possible that
Mumford met with Mitchell and Jessen at the 2004 APA Convention in Hawaii, which Mitchell
and Jessen were scheduled to attend, but the communications do not prove that such a meeting
happened. Mitchell said that he could not recall having ever met with Mumford. 842
VI.

ETHICS AND NATIONAL SECURITY: JULY 2004 – NOVEMBER 2004

In July 2004, APA took its first formal step toward address the ethical issues being raised
by psychologists’ involvement in national security settings. APA staff explain that the purpose
of this meeting was to address a broad range of issues related to psychologists working in the
military and other government agencies involved in national security. They assert that abusive
interrogations were only one relatively insignificant part of the issues that the meeting was
designed to address. However, it seems likely that one of the primary purposes of this meeting
was to address the ethical issues related to interrogations. By this point, APA staff had already
communicated internally about ethical issues related to national security investigations, and had
fielded at least one request for ethical guidance related to activities in which psychologists were
asked to participate at Guantanamo. Moreover, APA staff members were surely aware of the
836

APA_0028365 (emphasis in original).

837

APA_0022708.

838

APA_0028185.

839

APA_0020846 (ellipsis in original).

840

APA_0022534.

841

Mumford interview (May 15, 2015).

842

Mitchell interview (May 15, 2015).

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many public reports of rampant human rights abuses against detainees held in the war on terror.
Therefore, as APA gathered together ethics experts and representatives from the CIA, CIFA,
DHS, and other government agencies serving the national security mission, it seems improbable
that one of the primary issues on the agenda would not be the ethical implications of
psychologists’ participation in interrogations.
A.

July 20, 2004 APA Ethics and National Security Forum

On July 20, 2004, the APA’s Ethics Office hosted a forum on Ethics and National
Security to bring together representatives of the FBI, CIA, and DoD for a discussion of “the
ethical issues in the use of psychology in national security-related investigations” and an
exploration of “how APA and other professional and scientific organizations can serve as a
resource for psychologists and mental health professionals who participate in these
investigations.” 843
Shortly before the meeting, Mumford invited his government contacts in various
agencies, including Hubbard, Morgan, Band, Kennedy, and Brandon, to attend the meeting by
forwarding Behnke’s message explaining his “forward looking” approach and emphasizing that
he would focus on identifying important ethical questions and offering assistance to
psychologists “navigat[ing] through thorny ethical dilemmas.” 844 Mumford also forwarded the
exchange to Anderson to inform him that APA would be holding a meeting on this topic, and
that “[t]he effort has the active and enthusiastic support of the CIA, DoD and FBI.” 845
In addition to Behnke, several APA staff and former governance members attended,
including Robert Kinscherff, the former Chair of the Ethics Committee who had responded to
Hubbard’s request for ethical advice several months earlier; Mel Gravitz, the psychologist who
had served on the CIA’s Professional Standards Advisory Committee; Mike Honaker, Deputy
CEO of APA; Russ Newman, the Executive Director of the Practice Directorate; Steve Breckler,
Executive Director of the Science Directorate; Geoff Mumford, Director of Science Policy;
Heather Kelly, Senior Legislative and Federal Affairs Officer in the Public Policy Office; Sara
Robinson, Legislative Assistant for Science Policy in the Government Relations Office; and
Lindsay Childress-Beatty, Deputy General Counsel. 846 Rhea Farberman chose not to attend the
forum “[b]ased on our decision to separate the public communications issues from the ethics
issues.” 847 Farberman’s email reflects APA’s concern with its messaging on ethical issues in the
national security setting, a concern that echoed through their earlier response to Hubbard’s
inquiry and their later communications during the PENS Task Force.

843

APA_0229986.

844

APA_0022593.

845

APA_0028483.

846

APA_0021208. Patrick DeLeon, former president and Chief of Staff to Senator Inouye was invited,
but declined to attend. APA_0045377. Nathalie Gilfoyle, APA General Counsel, was also invited but
ultimately did not attend.

847

APA_0030193.

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The APA also included Jeffrey Janofsky and Robert Phillips as representatives from the
American Psychiatric Association (“ApA”) and Mark Frankel from the American Association
for the Advancement of Science, as part of a collaborative effort to address the ethical dilemmas
facing all mental health professionals asked to consult on interrogations.
Steve Band and Anthony Pinizzotto attended the forum on behalf of the FBI’s Behavioral
Science Unit, 848 and Kirk Hubbard and Judy Philipson 849 attended on behalf of the CIA’s
Behavioral Science Unit. Scott Shumate and Kirk Kennedy were invited to attend the meeting as
representatives of CIFA, a division of the Department of Defense, though only Shumate was able
to do so. Also in attendance was Susan Brandon, the former APA Senior Scientist who
subsequently moved to a position in OSTP. After the meeting, Behnke drafted a brief
description of the meeting for Brandon to show her superiors at the White House to account for
where she had been at the time. 850
Several contractors to the FBI, CIA, or DoD were also present at the meeting. These
contractors included Robert Fein and Michael Gelles, who would later serve on the APA’s PENS
Task Force, and Andy Morgan, the psychiatrist on Hubbard’s Behavioral Science staff who had
raised ethical concerns several months earlier.
It is likely that many of the operational psychologists involved in these discussions were
concerned that the professional associations might in some way impede their work. Gelles
explained that, at the time of the meeting, many operational psychologists from various
intelligence and law enforcement agencies were meeting about once a year to discuss how to
define their role in accordance with ethical guidelines. He believed that many psychologists
were talking informally about how to ensure that the work they were doing would not stop. 851
As noted above, in his invitation, Behnke assured participants that APA “will not
advertise the meeting other than this letter to the individual invitees, that we will not publish or
otherwise make public the names of attendees or the substance of our discussions, and that in the
meeting we will neither assess nor investigate the behavior of any specific individual or group.”
Band responded that he appreciated being assured that the names and affiliation of attendees
“will not be a media event.” 852 Childress-Beatty expressed surprise that the participants would

848

Kristen Beyer was also invited to attend, but was unable to do so because of a scheduling conflict.
APA_0058091.

849

Judy Philipson, a psychologist who worked in Hubbard’s office at the CIA, suggested to Behnke
before the meeting that he invite James Mitchell and Bruce Jessen as well because they “would be
absolutely necessary for this discussion.” After Behnke asked her for some background on Mitchell and
Jessen, Philipson commented that she had consulted with Mel Gravitz, and that “he thought that it might
be premature to bring them along for this initial meeting.” APA_0045373.
850

APA_0058032.

851

Gelles interview (May 27, 2015).

852

APA_0045389.

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object to their names being released, and Behnke responded that “this particular group of folks is
sensitive to those issues.” 853
The day before the meeting, Behnke prepared an outline of his opening remarks and
shared it with Gilfoyle and Childress-Beatty to solicit their thoughts. In the outline, Behnke
identified four goals for the meeting:
1) identify the ethical issues that arise in the use of psychology or psychological
techniques in national security-related investigations; 2) discuss how the
American Psychological Association and other professional and scientific
organizations can serve as a resource for mental health professionals who
participate in national-security related investigations; 3) identify resources, for
example journal articles that raise and address the relevant ethical issues, as well
as other individuals with a particular interest or expertise in this area; and 4)
determine whether ongoing contacts among the group would be useful, for
example additional meetings to continue our discussion, panels or workshops at
national conferences, or articles in journals or newsletters to stimulate discussion
in the broader investigative and intelligence communities.
Behnke also identified a number of points he wanted to emphasize during his introduction to the
forum. Many of his points focused on the “goodness of fit” between the ethics codes and the
situations with which many professionals struggle during their practice in national security
settings. He concluded by noting that “the risk of not addressing these issues are [sic] that
mental health professionals will stay away from this work, out of a concern of exposing
themselves to legal and ethical liability, or that mental health professionals who do engage in this
work will become split off from their national associations, because of a feeling that the national
organizations do not understand what they do. Either would be a highly undesirable
outcome.” 854
When Kennedy learned that he would be unable to attend the forum, he wrote an email to
Hubbard explaining his thoughts on the importance of APA creating “an entity to take on a
positive consultation role to the intelligence community.” He explained that the Intelligence
Community (“IC”) “is often ill-served by a few unethical/unprofessional psychologists” because
it is sealed off from professional oversight boards and “IC management is generally insensitive
to professional ethical issues, [which] sets the stage for breeding the same insensitivity in the
psychologists it employs.” Kennedy explained during an interview with Sidley that he was
thinking about OMS officers who manipulated case officers into letting them consult on cases
when he raised these points. 855 Moreover, he noted that Intelligence Community managers and
early-career psychologists lack resources when they have ethical questions, and “more senior
psychologists are not always the best resource especially since they may be part of the problem.”
Kennedy thought that, were the APA to set up an ethics consultation board for the Intelligence
Community, psychologists would have a resource to turn to for addressing ethical issues, such as
853

APA_0058042.

854

APA_0058094.

855

Kennedy interview (May 28, 2015).

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confidentiality and multiple relationships. Such a board might also develop professional
standards and a certification program for the area of psychological consultation. Finally,
Kennedy noted that “[t]he APA Ethics Code seems primarily geared for the therapeutic context”
and that it could be difficult to adapt it “to provide ethical guidance for consultation in the IC.” 856
Although many of Kennedy’s ideas related to a consultation board were not discussed at
the meeting on July 20, his final point related to the Ethics Code’s applicability in national
security settings became an important theme of the discussion. One of the primary topics of
discussion at the meeting was the “goodness of fit” between the APA’s ethics guidance and the
role of psychologists in national security investigations. Robert Fein commented that he had
attended an FBI conference at which they “concluded that the [E]thics [C]ode was indeed a poor
fit.” Kirk Hubbard most strongly stated that “the current code does not apply at all [to] the
national security investigation situations—it’s not mental health we’re concerned with, but
national security; we are supposed to exploit and manipulate the interrogatees to gain crucial
information.” He later emphasized that “beyond [torture], we have no ethical duty to the
interrogatee.” Jeffrey Janofsky offered the alternative perspective that, even if the client is the
interrogator, psychologists and psychiatrists still “have some duty to the detainees” and that they
“can’t just drop your ethical guidelines when you take off your ‘psychologist hat.’” 857
Although no record of further discussion on this point appears in the collection of notes
from this meeting, several other participants said that they strongly disagreed with Hubbard.
Kennedy said that Shumate and Hubbard argued over Hubbard’s position. He also explained
that, after this meeting, it became clear to Kennedy that he did not have the same views as
Hubbard, and he did not speak to Hubbard often after this point. 858
Another recurring theme raised during the meeting was that the traditional rules designed
to fit a clinician/patient relationship did not seem to apply in national security contexts. This
theme became particularly prevalent when the group discussed the identity of the client in
national security contexts. At one point, Michael Gelles cautioned “it’s important to remember
the client is the interrogator, not the interrogatee—these are not patients.” He attempted to steer
the conversation towards boundaries, rather than rules and guidelines, as an attempt to cabin
“how far psychologists should go.”
Several participants also expressed concerns regarding the pressures psychologists felt to
give advice in areas outside their expertise in “high stakes” situations. Mel Gravitz commented
that “we have a responsibility to provide credible, ethical service” as both citizens and
psychologists. 859 Andy Morgan elaborated that psychologists and psychiatrists were “pressured
to offer consultation and opinions” even in “areas were we have no training.” Gelles agreed that
“psychologists get pulled into a process where our expertise is demanded” but queried how to
856

APA_0028398. Although Kennedy was at that time affiliated with CIFA, he had only recently moved
from the CIA where he had been Hubbard’s counterpart within another unit of the Operational
Assessment Division.
857

APA_0229986.

858

Kennedy interview (May 28, 2015).

859

Mumford Notes (July 20, 2004) (on file with Sidley).

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“define our competence.” 860 He identified a number of possible roles for psychologists
consulting on interrogations—such as observing “behind the glass,” sitting in the room,
designing the strategy, or writing the script—which might raise different ethical dilemmas. 861
Some participants raised the idea of “relative ethics,” such that there was a “continuum of
coercion from benign to not at all benign, depending on how high the stakes are.” Shumate
invoked the “ticking bomb scenario,” and queried how the ethics standards applied in practice
“in the context of competing duties and oaths,” such as the oath to protect and defend. 862
Behnke seemed to agree with this “relativist” position, stating that “there are exceptions to each
rule in the code, where some other value or goal trumps another.” 863
Another consistent concern was the lack of empirical data available to assess risk, and the
inability to conduct the necessary research because it would be unethical. The participants
lamented that the y could not access a community of colleagues or experts on these issues
because much of their work was classified. Robert Kinscherff commented, however, that there
are “lots of naturalistic experiments going on” relating to the question “at what point does
deception work.” 864 Andy Morgan also made a comment about “using available venues to
conduct empirical evaluations.”865
Although the basic question of whether mental health professionals should conduct
interrogations at all was raised during this meeting, 866 it was given little attention; instead, the
relevant question soon became not whether psychologists should participate, but how they could
do so ethically. 867 Behnke explained that he interpreted the position that psychologists cannot be
involved in interrogations as meaning, through logical extension, that interrogations are
unethical. He found this position unrealistic, and viewed interrogations as inherently a
psychological activity where it made sense for psychologists to be involved. 868
Behnke said that he was mindful at this time of pressures from both directions. He
explained that in hindsight, all of the pressure is coming from one direction in favor of greater
protections for detainees, but at the time he wanted to be cautious because of the potential for
another attack that could bring pressure from the other direction. Behnke wanted APA to find a
way to be anchored in the middle. 869
860

APA_0229986.

861

Mumford Notes (July 20, 2004) (on file with Sidley).

862

Id.

863

APA_0229986.

864

Mumford Notes (July 20, 2004) (on file with Sidley).

865

Id.

866

HC00009080; Mumford Notes (July 20, 2004) (on file with Sidley).

867

APA_0041230.

868

Behnke interview (May 22, 2015).

869

Id.

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B.

APA INTERACTIONS WITH CIA & DOD: 2001-2004

Follow Up to the National Security Forum

After the meeting, Behnke sent an email to Honaker, Gilfoyle, and Childress-Beatty to
relay the appreciation of the “investigative community” that APA had reached out on this issue.
He added: “As the national organization, we should be on the cutting edge of the
discussion/debate about the ethics of this issue—if we aren’t, that particularly community of
psychologists is likely to ‘give up’ on APA and go their own direction, as was alluded to during
the discussion, which would be a very undesirable outcome for a variety of reasons.” 870 Behnke
explained that he meant that the APA should be on the cutting edge both in leading the
discussion on these issues and in giving the best substantive guidance possible. Behnke wanted
to develop “state of the art” rules to demonstrate that APA was an appropriate venue to seek
ethical guidance and to have discussions on these issues. 871
Behnke also emailed the participants to thank them for their contributions. Band
responded that the “important and timely gathering was one of the most significant meetings I
have attended this year. . . . During this time of war, I am drawn to part 1.02 of our (APA’s)
ethical principles and take comfort in my interpretation of this standard. Towards that end, I
truly look forward to your leadership, guidance and future meetings as we hazard forward.” 872
Behnke also contacted Janofsky, the representative from ApA, to express the hope “that
our two APAs can collaborate on this issue, to everyone’s benefit.” 873 In September, he attended
the annual meeting for forensic psychologists, which covered the same topics as the July meeting
hosted by APA. 874
In September, Kennedy approached Mumford to follow up on a discussion they had
during the June 24 interpersonal deception workshop regarding the creation of an “APA
fellowship at CIFA along the same lines as was done with Kirk Hubbard at CIA.” Mumford,
Kelly, Shumate, and Kennedy subsequently met for lunch to discuss collaborating on the
fellowships, and Kennedy also suggested that “[p]erhaps there is a way to collaborate further on
ethical issues as well.” 875 At the meeting, the group discussed the need for APA to re-establish
ties with psychologists in national security and intelligence settings and the possibility for future
collaboration on ethics issues. As concrete steps in this direction, they proposed developing
summer science fellowships at CIFA, creating an APA division related to intelligence work, 876
and establishing a behavioral science advisory panel for CIFA. 877

870

APA_0058042.

871

Behnke interview (May 22, 2015).

872

APA_0085132 (emphasis in original).

873

APA_0058049.

874

APA_0022045.

875

Id.; APA_0020824. In the summers of 2005 and 2006, APA placed four Summer Fellows with CIFA
under the supervision of Kennedy and Shumate.
876

A few days after the meeting, Mumford inquired into starting a new division on the “use of
psychological and behavioral science in devising intelligence, counterintelligence, and counterterrorism

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Aside from these small-scale meetings, APA did not immediately begin to orchestrate a
more cohesive strategy to follow the July 20 forum. On September 23, Brandon emailed Behnke
to offer her assistance in pursuing the issues and concerns raised at the meeting, noting that she
“met recently with two psychologists who are at DOD Counter Intelligence Field Activity
(CIFA), one of whom was at that meeting (Scott Schumate [sic]). Both are looking for ways to
engage good psychology—and good science—in what they and their colleagues do. Part of that
is confronting some of the issues raised at that meeting.” 878 In a side conversation several weeks
later, Mumford emphasized that they needed to “keep the pressure on to do something,” in part
because “Schumate [sic] expressed some disappointment yesterday that APA wasn’t more public
about convening such a meeting and I’m with him on that . . . so maybe we can talk about the
value of demonstrating leadership more openly.” 879 Brandon added that she “heard the same
from Scott [Shumate] and Kirk [Kennedy].” 880 Mumford and Brandon continued to discuss how
best to motivate Behnke to push forward APA’s response on this issue.
Sidley spoke to Brandon, Mumford, Shumate, and Kennedy regarding this issue, and they
clarified that they wanted APA to publicly acknowledge their leadership on these issues.
Brandon said that it was important to her for APA to acknowledge that psychologists were facing
ethical issues, and Mumford said that he agreed that it would have been beneficial to be
proactive in a more public and transparent way to demonstrate leadership on this issue. 881
Kennedy confirmed that he had pushed the APA to have these ethics discussions because he
wanted to support efforts to develop ethical methods of educing information, and because he
knew that information would eventually come out about psychologists’ involvement in
interrogations that would make them look bad. 882 Shumate also explained that it was
“incumbent on the key players” to keep the ball rolling on this fundamentally important question,
particularly with respect to pushing for research on these complicated issues.883
Even as the APA began to seriously consider the ethical issues raised by psychologists’
involvement in interrogations in the latter half of 2004, 884 media pressure continued to build. On

strategies to advance homeland and national security.” APA_0021076. There is no evidence to suggest
that this idea ever advanced any further.
877

APA_0128910.

878

APA_0022373.

879

Id. (ellipsis in original).

880

Id.

881

Brandon interview (May 26, 2015); Mumford interview (May 15, 2015).

882

Kennedy interview (May 28, 2015).

883

Shumate interview (June 24, 2015).

884

Although APA did not immediately follow up on the ethics and national security forum, Science
Directorate staff eventually presented it as a precursor to the establishment of the PENS Task Force. In
February 2005, a story in SPIN noted that Levant established the PENS Task Force as an “outgrowth” of
the July 20 meeting and media attention focused on interrogation practices at Abu Ghraib.

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August 20, Steven Miles published an article in The Lancet titled “Abu Ghraib: Its Legacy for
Military Medicine.” 885 The article alleged that Army doctors stationed at Abu Ghraib had
designed and implemented coercive interrogation techniques and deliberately covered up torture
and other human rights abuses by falsifying medical records. And on November 30, 2004, Neil
Lewis published an article in the New York Times that served as a watershed moment for the
APA, forcing the association to take action and make a public stand on psychologists’
participation in interrogations in the national security context

885

Steven H. Miles, Abu Ghraib: Its Legacy for Military Medicine, The Lancet (Aug 2004), available at
http://www.thelancet.com/pdfs/journals/lancet/PIIS0140-6736(04)16902-X.pdf.

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PENS TASK FORCE, & INITIAL AFTERMATH

THE PRESIDENTIAL TASK FORCE ON ETHICS AND NATIONAL SECURITY (“PENS”)
AND INITIAL AFTERMATH
This section discusses the significant aspects surrounding the development and
discussions of the PENS Task Force. It recounts the formulation of the task force starting in late
2004 and early 2005, the task force exchanges and meetings through the spring and early
summer of 2005, and the PENS report and its approval in late June and early July 2005. The
section also covers the immediate aftermath of the report and interconnected issues that occurred
one and two years after the PENS report was completed. Additional actions that followed from
the PENS Task Force in later months and years, such as supplemental APA resolutions or
government-related interactions, are discussed in the next section of this report.
I.

CREATION OF PENS TASK FORCE AND SELECTION OF MEMBERS

Discussions were renewed and sharpened at APA in late 2004 and early 2005 about
creating a task force focused on ethics and national security. It is clear from the
contemporaneous emails that the cause of this renewed discussion was a late November 2004
New York Times article discussing psychologists’ roles in interrogation settings at Guantanamo
Bay and Iraq, and subsequent articles. 886
A.

November 29, 2004–January 4, 2005: Neil Lewis’s New York Times Article
and Early Discussions of a Task Force
1.

The November 30 article and resulting internal APA discussions and
reaction

On November 30, 2004, the New York Times published a front-page article by Neil Lewis
titled “Red Cross Finds Detainee Abuse in Guantanamo Bay,” which described the findings of a
recent confidential report by the International Committee of the Red Cross (“ICRC”). 887 The
ICRC report, according to Lewis, documented psychological and physical coercion techniques
that were “tantamount to torture.” The article noted that some detainees were subject to “loud
and persistent noise and music,” to “prolonged cold,” and to “some beatings.” 888 The article also
886

We found no evidence that APA was motivated at the the time to create the PENS Task Force in order
to endorse or accommodate guidance from the Department of Justice’s Office of Legal Counsel (“OLC”) ,
under which harsh interrogation techniques were not torture if a psychologist or other relevant expert says
the technique to be applied will not cause severe physical or psychological suffering. Relatedly, critics
have alleged that the timing of the task force coincided with an internal debate within the CIA about the
role of so-called enhanced interrogation techniques and human research standards in light of a May 2005
OLC’s memorandum that reaffirmed the use of interrogation tactics including waterboarding. We found
evidence that APA was not involved in this debate, though, as previously mentioned, our access into DoD
and CIA actions and communications during this time was limited.
887

Neil Lewis, Red Cross Finds Detainee Abuse in Guantanamo, New York Times (Nov. 30, 2004),
available at http://www.nytimes.com/2004/11/30/politics/30gitmo.html?pagewanted=all.
888

Id. The article described these techniques further into the article: “one regular procedure was making
uncooperative prisoners strip to their underwear, having them sit in a chair while shackled hand and foot

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PENS TASK FORCE, & INITIAL AFTERMATH

directly implicated psychologists who assisted with interrogations at Guantanamo Bay. It
described “Behavioral Science Consultation Teams” (commonly referred to as “BSCTs” or
“Biscuits”)—groups composed of a psychiatrist, a psychologist and psychological support staff
according to the article—that “conveyed information about prisoners’ mental health and
vulnerabilities to interrogators” to assist with interrogations. 889 The ICRC report also noted that
BSCTs conferred with medical personnel about the “medical situations of detainees,” which may
have led to distrust between detainees and the treating doctor. The article cited concerns over
whether health professionals, in light of their ethical codes, should be present at Guantanamo
Bay while these abuses occurred. Lewis also discussed how some of the abusive techniques
were possible given the guidance from the OLC on what (narrow) methods constituted torture. 890
After seeing the article posted online on the evening of November 29, Stephen Behnke
forwarded it that evening to Michael Honaker, Nathalie Gilfoyle, Lindsay Childress-Beatty,
Rhea Farberman, Geoffrey Mumford, and Steven Breckler. 891 In his email, Behnke stated “there
will be some fallout” from the article, but that it was “very difficult to predict what it will be.” 892
This launched an internal email discussion among top APA staff during the afternoon of
November 30 about whether to issue a statement in response to the article. Farberman cautioned
that “we don't want to condemn the work [of] some psychologists when we don't know all facts
and we also don't want to take sides in a disagreement between the Red Cross and the White
House.” 893 Behnke agreed that the “information we have is limited to what is in the media” and
suggested the following communications strategy on the issue:
I think our message should be, at least in part: 1) APA has an ethics code, which
its members agree to abide by; 2) The media provides few facts about very
complicated situations. These situations require a full understanding of the facts
before any assessment can be made regarding whether a particular behavior is
ethically appropriate or problematic; 3) APA works to promote “the highest
standards of professional ethics” (From APA Bylaws) in all areas of psychology--

to a bolt in the floor, and forcing them to endure strobe lights and loud rock and rap music played through
two close loudspeakers, while the air-conditioning was turned up to maximum levels.”.
889

Id. A December 10, 2004 Army Standard Operating Procedure changed this to a team of
psychologists, discussed further below.
890

Neil Lewis, Red Cross Finds Detainee Abuse in Guantanamo, New York Times (Nov. 30, 2004),
available at http://www.nytimes.com/2004/11/30/politics/30gitmo.html?pagewanted=all. Lewis did not
specifically use the term OLC, but referred to “a team of administration lawyers” who had “accepted a
view first advocated by the Justice Department that the president had wide powers in authorizing coercive
treatment of detainees.”
891

APA_0021920.

892

Id.

893

APA_0021923.

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research, education, and practice--and has an Ethics Committee that reviews
complaints concerning psychologists’ behavior. 894
Gilfoyle responded,
[t]hat all sounds good as far as it goes but the tougher point to me is the question
– which seems inevitable – of whether psychologists can legitimately/ethically
work with interrogators to identify ways of ‘breaking down’ a prisoner that fall
short of torture. I think the answer to that is probably ‘yes’, but that is quite tricky
to get across without creating a sound bite that could be disastrous. Maybe the
answer is ‘no’ which would be easier. But somehow the easy answer is rarely the
correct one, it seems. Anyway it is a question to be ready for. 895
In her response, Gilfoyle was candidly putting her finger on one of the fundamental
problems for APA in taking a position of “engagement”—a position that psychologists could
continue to engage in interrogation work at Guantanamo Bay and elsewhere. If there were
circumstances in which “breaking down” an uncooperative detainee falls short of “torture”
(presumably depending on how the word is defined), and if therefore APA might announce that
it was ethical for psychologists to participate in this activity, then providing a public explanation
of this position with the necessary level of detail could be a public-relations disaster (“quite
tricky to get across without creating a sound bite that could be disastrous”). This problem would
remain with APA throughout the PENS process.
Behnke’s response 15 minutes later was telling, both because it reveals the strategic and
PR way in which he thought about this ethics issue and because one can see how this approach
(in combination with other factors) led directly to the highly and intentionally limited nature of
the PENS report. Behnke responded:
I think our ethics program has gotten pretty good at avoiding ‘yes-no’ type
responses (except in clear cases, e.g., it's not acceptable to become sexually
involved with a patient), and I think that should be our first line of approach here.
I would encourage us to be mindful that we are a scientific organization, so that as
an initial matter we look to the science (e.g., what data do we have to indicate that
this technique is effective? Do we have data to indicate that this technique
is more effective than other techniques that would present less risk of harm?) I
would point out that since some of the research in this area is classified, we do
not have all the information we may need for a complete ethical analysis. In any
instance, we would want to understand the facts, circumstances, and
context surrounding a particular behavior before we could determine whether it
was ethically appropriate. . . . We need to have a context before we can determine
whether a particular behavior is ethically appropriate or problematic in national
security-related context. 896
894

Id.

895

APA_0021923.

896

Id.

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Behnke also articulated this strategy of avoiding the difficult questions by playing up the
lack of perfect knowledge regarding both facts and “context” in a similar exchange with
Farberman in the same group email:
It seems that there are many possible variations in the facts which could lead us to
very different ways of thinking about the ethics. Consider, for example: 1) A
psychologist who is consultant to a [sic] interrogation team. The psychologist
provides information to the team (e.g., the effects of sleep deprivation), but it
is the team that makes the decision about how to proceed and use the information
the psychologist has provided. [Gives two other scenarios.] One could go on at
some length, but I think it's very important for us to be mindful of how dependent
our ethical assessment will be on the facts and nuances. . . . What we are talking
about now--investigations related to national-security--is an area of psychology in
which the ethics are not well developed, and I think we need to be very respectful
of the fact that much thinking and development needs to take place before we can
begin to declare certain practices ethical or not. 897
Farberman responded enthusiastically: “Steve – AMEN!! That's exactly the right
response.” 898
On December 1, APA leadership held an internal meeting to discuss the article and next
steps. 899 By Friday, December 3, 2004, APA had prepared a statement in response to inquiries
arising out of the Lewis article, which closely followed Behnke’s initial thoughts on November
30, 2004. 900 The statement said in part that evaluating the ethical nature of behaviors was
“highly dependent on knowing the facts and circumstances surrounding a behavior,” and that
APA was “extremely limited” in its knowledge of psychologists’ roles in places like
Guantanamo Bay and Abu Ghraib. It closed with a reassurance that APA would continue to
promote the “highest standards of professional ethics,” and would confer with relevant
psychologists about “whether APA had given adequate ethical guidance” in these settings. 901

897

APA_0032795.

898

Id.

899

APA_0058569. In a separate email exchange, Board member Barry Anton asked Steve Behnke how
the meeting went. APA_0058544. Behnke said that “we all felt comfortable in formulating a response to
inquiries that makes two points,” and then summarized for Anton the points discussed in the text, which,
as articulated by Behnke in this email, became the actual draft statement issued by APA. In summary,
Behnke said, APA can’t make ethical judgments because it doesn’t have enough facts to know “the
context of [the] behavior,” even though APA “has given less thought” to the ethics of national security
investigations, APA “will continue to promote the highest standards of professional ethics and conduct by
enforcing its ethics code and by ensuring that its ethical standards adequately speak to new areas of
practice.” (emphasis added) As we observed at many points in this investigation, Behnke took the lead in
drafting APA’s response, and his language was used virtually verbatim as APA’s statement.
900

APA_0023309.

901

Id.

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Behnke’s comment that “much thinking and development needs to take place” on the
issues before ethical declarations could obviously be considered a fair substantive point. But
APA ended up pursuing its course of action not based on additional “thinking and development”
on ethics issues, but on strategic and PR considerations. If Behnke and APA had declined to
issue ethical guidance or take an ethical position on the issue for (say) 12 months while they
carefully studied issues of torture, interrogation practices, the role of health care practitioners in
interrogations, and ethical issues relating to war and capture, and publicly explained that they
were not issuing guidance because this study was taking place, that would be one thing. But
APA did the opposite.
As set out below, in order both to address perceived PR concerns (that APA’s silence on
these issues was costly from a perception standpoint because it showed an absence of leadership
and relevance), and to please the Defense Department (which wanted both timely action from
APA that would reflect positively on DoD, and ethical guidelines that gave DoD substantial
flexibility and were as close as possible to existing or draft DoD policies on the topic), APA
issued a task force report that evaded the difficult questions that APA knew inevitably needed to
be answered if psychologists were to be authorized to engage in interrogation activities.
Simultaneous with its PENS report, APA claimed that (1) the report was not evasive but was in
fact a clear, strong, pro-human rights statement against torture; (2) the report was evidence of
APA acting as a “leader” on this issue; (3) the report provided “clear guidance” on this issue; and
(4) it was unfair to label the report as evasive because (a) the issue was complicated (so they
needed more time), (b) they needed more facts (even though the contemporaneous emails show
they expected to never obtain meaningful facts because of the activity’s classified nature), and
(c) the report should be seen as merely an “initial step” with the promise of a more detailed
“casebook” (which never occurred). 902
In one of his interviews with Sidley, Behnke defended the PENS approach on the ground
that APA was new to these issues and, thus, did not wish to go “too far in either direction” at this
point in time.903 But as set out below, the evidence shows that what explains the PENS report is
a desire to please DoD by following its requests about how to proceed, and the desire to create a
positive-sounding policy statement in a short time frame in order to respond to the pressure of
negative press reports.

902

This was occurring five months after Behnke and Mumford had convened the group of CIA, FBI, and
academic psychologists and psychiatrists for a confidential discussion at APA in July 2004 on the issue.
In another part of the email exchange on November 30 following Behnke’s initial email about the New
York Times article, Mumford asked Farberman and Behnke (copying the rest of the group) if the Board of
Directors or Council of Representatives had been informed of the July 2004 meeting. Mumford
suggested that “we might want to note that we’ve at least attempted to take some leadership role in
initiating a dialogue on the issue,” and then included a proposed statement regarding APA’s initiation of a
dialogue. Mumford added, “of course this begs the question ‘what next?’ to which I haven’t got a good
answer.” Behnke responded that the meeting had not been brought to the attention of the Board or the
Council, but that it had been discussed at an Ethics Committee meeting with Board liaison Barry Anton
present, and was going to be mentioned at the December Board meeting. APA_0023859.
903

Behnke interview (May 22, 2015).

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2.

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Follow up discussions, including of Newman/Dunivin conflict of interest

By early December, APA members had already begun drafting letters to the organization
about inquiring into or investigating the claims raised in the Lewis article. 904 On the morning of
Monday, December 6, President-Elect Ron Levant emailed CEO Norman Anderson (copying
APA President Diane Halpern and former APA President Patrick DeLeon) in order to forward a
message from a psychologist who had sent Levant one such letter. Levant asked Anderson if
APA staff could begin looking into the issue to “find out what known facts are” because the
issue “appears to be heading for [the Council of Representatives] in February.” 905 Anderson
responded that APA could gather “the facts as they start to come out” but that “it might be hard
to get more (and more accurate) information than the newspapers are getting.” Anderson said
that “[w]e of course know psychologists at the military base there,” but that “given the sensitivity
of the issue and the fact that psychologist are being implicated, that might be a little tricky.” 906
Anderson also mentioned that Farberman had prepared a draft statement in case it was necessary,
and that it was being sent to the Board.
In response to Anderson’s reply, DeLeon emailed Anderson without copying the others
and inquired whether Anderson knew that Debra Dunivin, wife of APA Practice Directorate
Executive Director, Russ Newman, was stationed at Guantanamo Bay: “[You] do know that
Russ’s wife is there.” Anderson replied that he was aware of this. 907 Anderson told Sidley that
he knew Dunivin had been deployed to Guantanamo but was not sure whether he was fully
aware of her role at Guantanamo at the time. Anderson conceded, however, that he should have
explored the issue further with Newman at the time but did not. 908
That evening, APA’s prepared statement was sent to the Council of Representatives. 909
In response, Division 48 Council Representative Corann Okorodudu posted on the Council
listserv on December 7 that her Division had “deep concerns” about the Guantanamo Bay issue
and that she and other Divisions might submit a “New Business Item” to “allow discussion on
the item” at the February Council meeting. 910 APA Board Member and Treasurer Gerald
Koocher (who had recently been elected APA President for 2006) responded that there was no
point in “discussing this item” unless it was tied to a “proposed action,” and action was
impossible before one could determine whether the “undocumented allegations” were true.
904

See, e.g, APA_0844973 (“Such activities are a cause for moral outrage and harm the public trust in the
profession of psychology. We call upon APA to issue a statement, at once, indicating that psychologists
working to abet the use of physical and psychological abuse in practices of interrogation are in serious
violation of ethical standards of the profession. We call upon APA to investigate the allegations and to
take appropriate actions based upon its investigations.”).
905

APA_0185943. The APA Council of Representatives meets twice a year, in February and August.

906

Id.

907

Id.

908

Anderson interview (June 23, 2015).

909

APA_0058517.

910

APA_0032605.

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Koocher suggested it would be better “to propose development of a study or investigative task
force (using discretionary funds) that would see what data are available and produce a report and
recommendations for the August Council meeting[.]”911 Okorodudu responded that Koocher’s
task force idea was part of what she would like to propose at the February meeting. 912
This was the first reference our investigation found to a potential task force apart from
Behnke’s mention of a potential task force in summer 2004. 913 Notably, Koocher was proposing
it both in reaction to a desire for a more expeditious discussion by Division 48 (potentially to
pre-empt an action that might be coming at the February Council meeting), and as an
“investigative” task force. Later, Koocher, Behnke and others would strenuously claim that the
PENS Task Force was explicitly not set up to investigate potential past abuses or find facts. 914
Meanwhile, Mumford had followed up on the original November 30 internal email
exchange about the New York Times article by forwarding Behnke’s initial email to Kirk
Kennedy—former CIA and then-Defense Department official who headed a unit within the
Counterintelligence Field Activity (“CIFA”). Mumford asked Kennedy what he knew about the
Lewis article and the BSCT teams. Kennedy’s first response, on November 30, was that he
“wish[ed]” he knew something and that he had “no idea what is going on down at GTMO.” 915
On December 9, Kennedy followed up to inform Mumford that a source told him that Newman’s
wife, Dunivin, was currently stationed at Guantanamo Bay as a member of the “JTF BSCT.” 916
Mumford responded that Heather Kelly was aware of Dunivin’s deployment but that he and
Kelly were unsure “about what she was doing down there.” 917
When Sidley asked Kennedy (currently with the FBI) about this email, he said that it was
immediately clear to him that the Newman-Dunivin relationship was an obvious conflict of
911

Id.

912

Division 48’s New Business Item was ultimately withdrawn since the Board approved the PENS Task
Force before the February Council meeting.
913

See APA_0084947.

914

APA continued to received other letters and comments requesting some sort of investigation into the
issues. For instance, on December 10, former APA President Phil Zimbardo forwarded Behnke an email
he had received from a psychologist asking for APA to respond to the Red Cross’ report which, she said,
showed “an absurd abuse of the professional ethics within the field of psychology.” In his email to the
psychologist and Behnke, Zimbardo said, “I will try to send this to him and request that you and others
feel there should be an ethics investigation started regarding these charges.” APA_0032566.
915

APA_0021862. Kennedy’s email also mentioned that he had attended “an annual conference of
cleared psychologists” (meaning psychologists with security clearances) where this issue was discussed.
At the time, this annual conference was called the Special Applications of Psychology Conference.
Behnke was invited to address the conference in October 2005, as described below.
916

Id. (“I thought that you would be very interested to learn that Russ Newman’s wife is an Army Lt. Col
psychologist currently stationed at ‘GTMO’ and is currently a member of the ‘JTF BSCT’ per note (from
a source that will remain anonymous – sort of spooky huh?”)). The email also contains more detail about
Dunivin and her background from Kennedy’s source.
917

Id.

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interest for both Newman and APA. He added that if APA weighed in publicly on the issue of
interrogation settings, APA was going to have a problem unless it disclosed the NewmanDunivin relationship and recused Newman from any involvement with the development of its
ethics position. 918 As set out below, Newman in fact was involved in the PENS Task Force
process in significant ways, ranging from the initial discussions among staff and the Board about
forming the task force in January and February to the task force meetings themselves in June;
and Dunivin was involved in a critical way in discussions about the composition of the task force
in February and March.
In response to Kennedy’s email, Mumford shared with Kennedy the statement APA had
sent to the Council. Kennedy then urged APA to take strong action to support and guide
military psychologists:
I think it behooves APA’s Ethics office to put out a statement that both guides and
supports military psychologists. Can you imagine a poor Navy psych intern being
assigned to GTMO thinking they were going down there to provide psychological
support to soldiers only to be diverted to consulting on interrogations? What
would APA do to support a psychologist in this situation? This is just one
example of why APA and DoD need to have a rapprochement. The main reason
however is that DoD is probably the largest employer of psychologists in the U.S.
However, I think an APA Ethics statement would have a minimal impact if issued
in isolation. Context, as you know is so important. I would advocate for such a
position paper to be embedded in an APA Monitor devoted to Psychology in the
Dept. of Defense. We could contribute an article on the CI [counter-intelligence]
psychology community in DoD. I could suggest names of psychologists,
including a past president of APA, who could provide erudite comments to
interview questions on military psychology issues. An APA Monitor might go a
long way to building the rapprochement. 919
Mumford replied that he would run these thoughts up through APA for reactions.
Kennedy responded, “I look forward to further dialogue – and most importantly, action – on
these issues.” 920
3.

Initial Board discussion of the Task Force

The possibility of forming a task force was explicitly discussed during APA’s Board of
Directors meetings between December 10 – 12, 2004. 921 Anderson told Sidley that there was
918

Kennedy interview (May 28, 2015).

919

APA_0021862 (emphasis added).

920

Id.

921

The meeting minutes do not indicate a specific discussion about the task force, but emails indicate the
task force was discussed during the Board meeting. For instance, Koocher emailed a colleague on
December 6 that the “Board of Directors will be discuss[ing] this in December.” See APA_0058532.
And on December 7, Barry Anton emailed Koocher and Carol Goodheart that the Board meetings would
discuss a “response from APA regarding prisoner abuses at Guantanamo [Bay] .” APA_0032527.

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great amount of Board discussion about the topic over these meetings. 922 Behnke had drafted a
task force proposal and had provided his draft proposal to Barry Anton in advance of the
December Board meeting. 923 Anton may have brought it to the meeting so that funding of a
future task force could be discussed. 924
The draft proposal is very similar to the task force proposal ultimately approved by the
Board in February 2005. Both this draft proposal and the final proposal refer to national
security-related “investigations” as opposed to interrogations. A notable change between this
draft version and the final version is that the word “coercive” is removed in the Board version. 925
As discussed in greater depth below, Russ Newman appears to have been the originator of this
change.
On December 21, Behnke emailed Levant to follow up on the Board’s discussion.
Behnke said that he understood that the Board had determined that funding should be provided
for a task force on the subject, and opined that “this decision was exactly correct, given the
sensitivity and potential volatility of the subject, as well as the tone of a Council item that will be
put forward in February” (a reference to the proposed Division 48 item discussed above).
Behnke said that the Ethics Office would be “happy to provide staffing” or otherwise assist with
the task force and “would be happy to suggest individuals” to serve on it. He observed that
“some of the people who attended the meeting at APA last July on ethics and national securityrelated investigations and research would be very good.” Behnke specifically mentioned that

922

Anderson interview (June 23, 2015).

923

APA_0058507; APA_0058508 (draft proposal). At the same time that the Board was meeting, DoD
Joint Task Force at Guantanamo Bay issued a revised policy governing the operations of the BSCT team
there. Among others things, this December 10, 2004 Operational Policy Memorandum defined the BSCT
team as two psychologists and one mental health specialist who would provide “psychological”
consultation in order to “support safe, legal, ethical, and effective interrogation and detention operations
at JTF-GTMO.” See Operational Policy Memorandum #14, Behavioral Science Consultation Team
(BSCT), DoD Memorandum (Dec. 10, 2004), available at http://humanrights.ucdavis.edu/projects/theguantanamo-testimonials-project/testimonies/testimonies-of-standard-operatingprocedures/bsct_sop_2004.pdf. In contrast, the prior policy document on this topic had defined the BSCT
team as one psychiatrist and one psychologist who would provide “behavioral science” consultation in
support of the interrogation mission. See BSCT Standard Operating Procedures, DoD Memorandum
(Nov. 11, 2002), available at http://www.americantorture.com/documents/gitmo/05.pdf. In addition to
making it clear that the BSCT team was solely about psychological consultation by psychologists (not
psychiatrists), the addition of the phrase “safe, legal, ethical and effective” is significant, as discussed in
greater detail below.
924

See APA_0058479.

925

Compare December 2004 draft proposal, APA_0058508 (“What does current research tell us about the
efficacy of coercive techniques? How would our ethics be affected, if at all, were coercive techniques
found to be effective?”) with February 2005 final proposal, APA_0025740 (“What does current research
tell us about the efficacy and effectiveness of various investigative techniques? Would the efficacy and
effectiveness of various investigative techniques, if demonstrated, affect our ethics?).

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Robert Kinscherff, a friend and then-chair of the APA Committee on Legal Issues (“COLI”),
“would make an excellent chair.” 926
In a follow up December 22 email, Behnke suggested that the funding be increased from
$7,500 (the amount tentatively decided upon at the December Board meeting) to $12,500 so that
10 members (rather than six, based on the lower level of funding) could serve on the task force,
since “several groups will want representation on the task force.” 927 Behnke told Sidley he was
referring to staffing the task force with subject matter experts and representatives from Divisions
with special interests in the matter. 928
B.

Preliminary Suggestions for Task Force Members, and Russ Newman’s
Involvement: January 4 – 18, 2005

Early January 2005 brought additional media reports regarding the role of psychologists
in interrogation settings and, with it, added urgency from APA to form a task force. Within short
order, key APA staff began collecting potential names for the task force.
The conflict of interest on this issue resulting from Russ Newman, the head of the
Practice Directorate, being married to Debra Dunivin, the lead Army BSCT psychologist at
Guantanamo Bay, was explicitly raised internally and then ignored. Newman became involved
in the discussions about the task force nominees and connected with Morgan Banks (the chief
Army psychologist with the Army Special Operations Command and psychology leader of the
SERE school at Fort Bragg), bringing his suggestions to the staff group.
1.

Strategic discussions about lack of “evidence”; Mumford’s unsuccessful
attempt to raise the Newman/Dunivin conflict of interest

On December 31, Neil Lewis published another article which focused on the
interrogation of Guantanamo Bay detainee Mohammed al-Qahtani and said that BSCT teams had
been used by interrogators to help “break down” uncooperative detainees during
interrogations. 929 This article was forwarded to a listserv Levant was on, and he forwarded the
article to Behnke and APA’s Executive Management Group (“EMG”) on January 3, stating,
“[w]e need to get our TF on national security up and running.” 930
926

APA_0058479.

927

APA_0033515.

928

Behnke interview (May 22, 2015).

929

Neil Lewis, Fresh Details Emerge on Harsh Methods at Guantanamo, New York Times (Jan. 1,
2005), available at http://www.nytimes.com/2005/01/01/national/01gitmo.html?pagewanted=1&_r=0.
(“The interrogators also discussed another factor in the Red Cross report, the use of a Behavioral Science
Consultation Team, known as Biscuit, comprising a psychologist or psychiatrist and psychiatric workers.
The team was used to suggest ways to make prisoners more cooperative in interrogations. ‘They were
supposed to help us break them down,’ one said.”).
930

APA_0033681. The therapist who forwarded the article to the listserv commented, “As mental health
professionals, I think it is critical that we use all available platforms to decry the use of psychological
knowledge and skills to contribute to torture.” Id.

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In an email exchange on January 4 and 5 between Koocher, Levant, and Behnke about
this article, Koocher pointedly suggested that APA would never be able to obtain any “hard data”
about whether psychologists were committing abuses at Guantanamo Bay, and therefore as a
matter of strategy, APA should simply continue to issue public statements saying it was
“concerned” and would look into the matter as soon as such hard data became available
(knowing that it never would). 931 Behnke responded that he agreed, and added that “our
colleagues in Division 19 [Military Psychology] . . . are especially sensitive to (the appearance
of) ethical judgments in the absence of hard data about what has actually occurred.” Koocher
responded that the concern about Division 19 sensitivity was “why I was trying to suggest” the
approach he had suggested in his email. 932
After Levant agreed and added Farberman and Gilfoyle to the email, Behnke then
forwarded to the group the statement APA had sent to Council on December 6 and said he did
not think there was much to add. Koocher responded, “Right! We should probably simply
[r]epeat same until ‘evidence’ of anything becomes public in 2055.” 933 In other words, Koocher
was pointing out that since it was very unlikely that any confirmation of the alleged abuses
would come out for 50 years (when classified information tends to become unclassified), APA
would be safe by simply repeating the statement it had previously made—that it effectively stood
ready to investigate and enforce its Ethics Code if facts emerged, and it could not make ethical
assessments until “all the relevant facts and circumstances emerge[d].” 934
Later in the evening of January 3, Georgetown Law Professor Gregg Bloche contacted
Behnke for comment on his and Jonathan Marks’s upcoming articles in the New England
931

APA_0033612 (Koocher noted that APA almost certainly could not receive confidential documents or
information from the New York Times or from the government through a FOIA request, and suggested
that APA should “simply prepare (with Rhea’s help) an expression of concern about ‘undocumented
allegations’, while expressing a willingness to look into the situation if/when appropriate documentation
‘becomes available.’ ”).
932

Id.

933

Id.

934

Id. Critical commentary continued on the Council of Representatives listserv regarding APA’s
statement after the Neil Lewis article, with one Council delegate forwarding as support an email from a
psychologist who said that APA’s statement was “seriously inadequate . . . . One can hardly imagine more
egregious violations of ethical standards of psychological practice. The statement does not seem to
recognize that these alleged acts are, if confirmed, not only highly unusual, but far more grave than the
sort of ethical violations that are generally encountered. Furthermore, the APA statement fails to
recognize that the allegations are not made by individuals whose reliability is completely unknown, but
by the International Red Cross, whose reliability if very well known.” Koocher responded to the Council
delegate in a one-line post, asking if she “will give suggestions for how APA might obtain the data
needed to investigate?” (The statement is ironic in light of the fact that APA generally took no efforts to
“obtain data” one might use to investigate these matters, as set out later in this report.) This exchange on
the Council listserv then prompted a short email exchange between Behnke, Farberman, and Gilfoyle.
Gilfoyle said, “well, there you have it.” Farberman responded, “These people just love to make my job
harder . . .!” APA_0058786. In this email exchange and other emails we have found, APA staff often did
not address the substantive points made in the original post regarding the unusual and egregious nature of
the allegations and the reliability of the ICRC in making the allegations.

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Journal of Medicine and the Los Angeles Times about medical professionals’ roles in
interrogation settings at Guantanamo Bay. 935 Bloche, a law school classmate of Behnke’s, noted
that psychologists in BSCTs have been “much more heavily involved than psychiatrists” in
interrogations and inquired whether APA had “issued any relevant guidance (or does it plan
to)?” 936 Bloche and Marks’ pieces were published on January 6 and January 9, 2005 in the New
England Journal of Medicine and the Los Angeles Times, respectively. 937
On the evening of January 3, Behnke forwarded Bloche’s message to Honaker, Gilfoyle,
Farberman, and Mumford with a note that he would speak to Bloche off-the-record and convey
to Bloche that APA would, among other things, “very actively . . . examine whether our Ethics
Code gives adequate guidance to psychologists in such situations, as it is my understanding the
American Psychiatric Association is doing as well.” 938
Mumford responded that when they had met in early December, “it seemed there was a
sense (a hope?) among some in the room that the story would die but it has, in fact, been part of
the news cycle pretty consistently for over a month now.” Apparently unaware of Behnke’s,
Koocher’s, Levant’s, and the Board’s communications in December about a potential task force,
Mumford suggested that “APA might want to be in a position of being able to say we have
something at the level of a ‘Task Force’ (or whatever)” to indicate that APA had made the issue
a high priority. 939
In addition, Mumford explicitly (and delicately) raised the conflict of interest concern
that Kennedy had raised with him in December regarding Dunivin being married to Newman:
I’m not quite sure how to put this, but are there issues of perception that we
should be concerned about if the wife of the Practice Directorate ED has in fact
935

APA_0023355. Bloche had given Behnke some advance warning about this article, emailing him on
December 20 that “we’ll have a piece on docs & interrogation (at Gitmo and Abu G) coming out in the
Jan. 6 NEJM. I’m learning much more about the role of psychologists than I was able to put in this piece
. . . .” Behnke forwarded this email to Gilfoyle and said, “Gregg is very smart and very aggressive – this
message makes me wonder what he’s found.” Gilfoyle responded, “[S]ounds like we would want to
know that?” APA_0033343.
936

APA_0023355.

937

See Gregg Bloche & Jonathan Marks, When Doctors go to War, New England Journal of Medicine
(Jan. 6, 2005), available at http://www.nejm.org/doi/full/10.1056/NEJMp048346); Gregg Bloche &
Jonathan Marks, Doctor’s Orders – Spill Your Guts, Jan. 9, 2005
(http://articles.latimes.com/2005/jan/09/opinion/op-brutality9?). In an interview and correspondence with
Sidley, Bloche said that he met with Behnke in January 2005 and had implored him (1) to accept
international legal definitions of torture and not defer to the Bush Administration’s “contorted redefinition
of torture” vis-à-vis the John Yoo and Jay Bybee Office of Legal Counsel (“OLC”) memos, and (2) to
reject the Bush Administration’s argument that psychiatrists and psychologists were not subject to their
professions’ ethics codes in interrogation settings since they were not acting in traditional clinical roles.
Bloche interview (May 7, 2015); Email from Bloche to Sidley (May 11, 2015).
938

APA_0023355.

939

Id.

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been deployed to Guantanamo Bay? Presumably, what she does is classified in
which case I would not expect Russ to have any additional insight but if our level
of activity as an association on this set of issues were questioned, that may be an
awkward situation to try and explain and it doesn't appear to be a secret that she’s
been down there. Just my 2 cents… 940
Chief Operating Officer Mike Honaker rejected the conflict of interest concern: “[S]ince
spouses are not employed by or represent APA we do not need to know anything about what
they do.” 941 Neither Farberman, Gilfoyle, nor Behnke made any comment in the email exchange
about the conflict of interest.
Despite the fact that Honaker was the second-highest ranking officer in the organization
and the subject of the conflict of interest point was the powerful (and aggressive) Executive
Director of the Practice Directorate (the largest and most prominent directorate within APA),
Mumford continued to raise the conflict of interest issue the next day in an email just with
Honaker, apparently following a meeting that the group had on January 4 to discuss the issue of
how to proceed. In his email, Mumford said that he “understood what you were saying
yesterday,” but noted that Dunivin was a “voting member of Council.” 942 Honaker responded,
“but again, do we review what all [C]ouncil members are doing?” Mumford responded one
more time, then dropped it: “no it[’]s just that Council members make policy for the association
so I guess it just puts her closer to the category of ‘representing APA.’ Not trying to put too fine
a point on it . . . just a heads-up . . . . last tag.” 943
Honaker told Sidley that his response to Mumford was not addressing the NewmanDunivin conflict issue specifically, but related to a different discussion that was occurring around
the same time about the inappropriateness of inquiring into the work backgrounds of spouses of
APA officials or employees, or the backgrounds of Council members. When asked how one
could understand his email responses as anything other than a response to Mumford’s direct
expression of a concern about Newman and Dunivin, Honaker insisted that he was not
responding to Mumford’s point but was referencing a different discussion. We asked for details
or more information regarding prior discussions about generally not inquiring into the work
background of spouses, and he said he could not recall any further details and had “no
documentation” for this. He knew that it appeared from this email exchange that he was
specifically addressing the Newman-Dunivin point, but he was not, because he believed that
Mumford made a good point and he believed that the Newman-Dunivin situation was a
significant concern. 944

940

Id. (ellipses in original).

941

APA_0030060.

942

Id.

943

Id.

944

Honaker interview (June 23, 2015).

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By the first week of January 2005, then, the conflict of interest issue involving Newman
and Dunivin had been raised three separate times 945 in these interrogation discussions—
December 7, 2004 between DeLeon and Anderson; December 9, 2004 between Kennedy and
Mumford; and January 4, 2005 with Mumford and several members of APA leadership. More
about APA’s thoughts on Newman’s conflict of interest is discussed below in our summary of
the PENS task force observers.
2.

Staff recommendations regarding task force nominees, and initial
involvement of Morgan Banks

Conversations about who should serve on the task force began immediately. On January
5, Kelly informed Mumford that she “put out the word to Div[ision] 19 and other defense types”
about gathering names for the task force, and that Koocher and Levant had suggested Larry
James and Morgan Sammons. 946 Kelly also asked Kirk Kennedy on January 5 if he would be
willing to serve on a potential task force that APA was putting together. 947 Mumford emailed
Scott Gerwehr at the RAND Corporation and Susan Brandon, former APA Senior Scientist and
then at the Office of Science Technology and Policy (“OSTP”), on January 5 requesting task
force names as well. 948
Also on January 5, Mumford, Kelly and Behnke met with Mike Honaker, Steve Breckler
(Executive Director of the Science Directorate), and Russ Newman; the two related topics were
potential task force members and the attempt to get involved with the Army Surgeon General’s
policy development effort, as revealed in the Bloche and Marks article. 949 In a follow up email,
Mumford referenced Newman’s “Special Ops colleagues”—a reference to Army Special
945

Dunivin’s marriage with Newman had previously raised concerns at APA. In October 2004, a Council
member flagged Dunivin’s marriage as a potential conflict of interest in her running for a position on the
Finance Committee. Dunivin ultimately withdrew her nomination for the committee. See
APA_0138161.
946

APA_0023328.

947

APA_0129713. Kennedy responded that he was interested “in principle” but wanted to discuss it with
Kelly so he could “know the parameters of what I would be asked to do so I could run it past the powers
that be here at CIFA.” Kennedy’s boss, Scott Shumate, ended up serving on the PENS Task Force.
948

APA_0023327; APA_0030104. Gerwehr suggested a variety of potential names for the task force,
none of whom were selected. See APA_0023327 (“[T]here are a few names that spring to mind as
slightly off the path you might have taken[.] (I assume you've considered all the usual suspects:
Zimbardo, Cialdini, Petty, Cacioppo, Eagly, Chaiken, Nisbett, Frank, O'Sullivan, Ekman, etc., etc.) Dan
Lassiter (false and coerced confessions), Anne Peplau (problematic close relationships, gender and sexual
orientation issues), Jim Sidanius (power, authority, race), Anthony Pratkanis (persuasion and
propaganda), etc. Am I reading you right? I can provide more if this is what you were thinking
about. . .”) (ellipses in original). As to Brandon, Mumford suggested (similar to Gerwehr’s thinking) that
they think about the academics who had been invited to their prior “ITP” (integration of theory and
practice) conferences: “I’d be pleased to get your thoughts on [task force nominations] maybe ref[le]cting
on past ITP participants or folks we had on wish lists who couldn’t come for some reason to one of the
earlier events . . . Bob Cialdini was one I thought of in that category. APA_0030104 (ellipsis in original).
949

APA_0023260.

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Operations Chief Psychologist Morgan Banks (and perhaps others)—and said he would be
interested in Newman’s perspective about how they “would fit into a proposed meeting with the
Army Surgeon General and/or other outreach activities.” 950 Newman actively followed up on
this shortly. More about Newman and Banks’s communications are discussed in the next
subsection.
On January 6, Mumford, Behnke, and the Associate Executive Director of the Science
Directorate, Merry Bullock, met “to talk about balancing the Task Force nominees” (as Mumford
said in an email the next day). After or around the time of that meeting, Mumford emailed
Behnke and Bullock about the names for the task force “we have so far,” which were listed in
this order: 951
x
x
x
x
x
x
x
x
x
x

Michael Gelles
Olivia Moorehead-Slaughter
Larry James
Michael Wessells
Phil Erdberg
Debra Dunivin
Corann Okorududu
Listed as “Possible place holders for Science”:
John Cacioppo
Bob Cialdini

After Mumford added Kelly to the email chain on January 7, Kelly responded that Dunivin’s
current position and access to classified information may “severely” limit what she could say in a
task force and recommended that she be included solely as a consultant rather than taking up an
“official spo[]t.” 952 No comment was made on the email exchange about the Newman/Dunivin
conflict of interest point. Kelly also responded that Behnke had just suggested adding Melvin
Gravitz to the task force list as well as psychiatrists Jeff Janofsky or Robert Phillips, all of whom
had attended the July 20, 2004 meeting at APA. 953
Separately on January 7, Kelly apparently reached out on this topic to David Ayres,
President of Tate, Inc., a consulting firm specializing in personnel recovery training to the
government (corporate documents for Mitchell, Jessen & Associates from this time listed Ayres
as Chief Financial Officer). 954 Kelly and Ayres had apparently gotten to know each other
950

Id.

951

APA_0023266. In the same email, Mumford told Bullock that “we need a moral reasoning person” on
the task force. Mumford later explained to Sidley that his comment meant ensuring that someone with
unimpeachable credentials on morality issues was included. Mumford interview (May 15, 2015).
952

Id.

953

APA_0023268.

954

See Tate Incorporated, Company Overview available at http://www.tate-inc.com/about/companyoverview/; Walker, Hunter, These 7 Men Owned The Company Linked to CIA Torture, Business Insider
(Dec. 11, 2014), available at http://www.businessinsider.com/the-company-behind-cia-torture-2014-12.

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because their children attended the same school, and Ayres had sent Jessen’s resume to Kelly
and had suggested a meeting. 955 Apparently in response to an email or phone call from Kelly,
Ayres sent Kelly an email with the subject of “We must talk!” 956 Ayres said, “Yes, yes… we
focus on these interrogation issues on a daily basis,” and said he would call Kelly when he
returned to town at the end of January. It is unclear whether Ayres was aware of the task force at
this time. 957
On January 14, 2005, Behnke emailed an interim update to Levant, stating that he and the
Science Directorate were compiling a list of task force members, and that the list “will be diverse
by professional background and interests, gender, and ethnicity.” 958 That day, Behnke sent a
draft list of 12 task force names for Kelly and Mumford to review, with a note to discuss the
issue of Debra Dunivin. 959 This draft list included the following names, six of whom ultimately
became task force members:
x
x
x
x
x
x
x
x
x
x
x
x

Jean Maria Arrigo (ultimately becomes a task force member)
Col. Paul T. Bartone
Phil Erdberg
Michael Gelles (ultimately becomes a task force member)
Larry James (ultimately becomes a task force member)
Joseph Matarazzo
Arthur G. Miller
Robert S. Nichols
Olivia Moorehead-Slaughter (ultimately becomes a task force member)
Corann Okorududu
Scott Shumate (ultimately becomes a task force member)
Michael Wessells (ultimately becomes a task force member) 960

On January 18, Behnke emailed Levant that the staff had completed its compilation of
potential task force members and attached a list for Levant’s review, along with short
biographical sketches. The list had 17 names and an asterisk next to their top 10 choices. 961 If
these ten people had formed the actual PENS task force, it would have been made up of five non-

955

Kelly interview (Apr. 24, 2015).

956

APA_0129250.

957

Ayres refused a request to be interviewed by Sidley. Kelly said she could not recall whether they had
a follow up discussion and did not believe that she had a conversation with him directly about the task
force. Our investigation found no further evidence in APA’s emails or Kelly’s files on this issue.
958

APA_0023208.

959

APA_0025278.

960

APA_0023209.

961

APA_002320; APA_0023209.

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DoD 962 members (marked with a “C” below), four DoD members (marked with a “G” below),
and one (Phil Erdberg) who might have fallen in either camp: 963
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x
x

*Jean Maria Arrigo (C) (ultimately becomes a task force member)
*Col. Paul T. Bartone (G)
*John M. Darley (C)
CDR Anthony P. Doran
* Debra Dunivin (G)
*Phil Erdberg (G/C)
*Michael Gelles (ultimately becomes a task force member) (G)
Dennis Grill
Joseph Matarazzo
Arthur G. Miller
*Olivia Moorehead-Slaughter (C) (ultimately becomes a task force member)
Corann Okorududu
Robert Roland
Scott Shumate (ultimately becomes a task force member)
*Michael Wessells (C) (ultimately becomes a task force member)
*Col. Thomas Williams (G)
*Linda M. Woolf (C)

Behnke also said that it would be important to explain some of the task force’s conditions
up front (including that “task force members may need to take votes on particular matters” and
their names would be made available to APA members), since he speculated that active duty
military members might not be able to participate on the task force under these conditions. 964
(This and other references to task force members being voting members shows that the
suggestions by Behnke and other APA officials after criticisms arose that the ultimate 6-4
DoD/non-DoD split of the PENS Task Force was irrelevant because it was never intended to
have votes taken is incorrect.) Behnke also suggested adding a representative from the American
Psychiatric Association, but Levant responded that he “would prefer to limit [the task force] to
psychology” since it had “the potential of airing dirty laundry.” 965

962

The phrase “non-DoD members” is used throughout this section to refer to task force members who
had no affiliation with the government or military. By contrast, civilian and military DoD-affiliated
members of the task force are referred to as “DoD members.”
963

Erdberg’s biography notes that he had been an active-duty military member and heavily consulted with
the FBI, but Behnke told Sidley that he would consider Erdberg a civilian member since he was no longer
active duty military. Behnke interview (May 22, 2015).
964

APA_0023208.

965

APA_0034366.

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C.

PENS TASK FORCE, & INITIAL AFTERMATH

APA-Defense Department interactions, and Board Approval of Task Force:
January 19 – February 17, 2005
1.

APA attempt to influence DoD policy, and link to task force member
selection process

From early January until the Board meeting approving the task force on February 17, key
APA staffers and Board members discussed their desire to be involved in the development of
Defense Department policy regarding the involvement of mental health professionals in
interrogations, for the apparent purpose of trying to ensure that psychologists were as strongly
represented within that policy as possible. This would have been important to try to maximize
jobs, contracts, and influence for psychologists within DoD, and would have been seen as
consistent with the core goals of growing psychology and (to quote Levant’s presidential motto)
“making psychology a household word.” A bad result regarding DoD policy development could
have meant that the role of psychologists in these DoD operations would be minimized, perhaps
because of greater influence from psychiatry, an issue always present for APA leaders focused
on growing psychology. 966 Koocher also explained to Sidley that APA wanted to please DoD in
general, like other government agencies, from which it received funding and support. 967 It was
clear that the Army Surgeon General’s Office was developing relevant policy, but it also
appeared that other parts of DoD might be developing similar policies, and it was unclear at this
time whether DoD effort was unified, coordinated, or disjointed.
There are also clear indications that, in the mind of some key APA people, including
Koocher, Levant, and Behnke (and probably Kelly and Mumford), this attempt by APA to be
involved in and positively influence DoD policy was linked to the composition of the soon-to-beformed task force on ethics and national security. Specifically, emails suggest that selection of
DoD officials for the task force may be seen as a show of support for DoD, which may help APA
achieve a more positive result from DoD policy in this regard. As it turns out, this is exactly
what happened. DoD officials perceived by APA as important were not just selected for the task
force but were selected as a majority of the task force, and DoD’s policies on these issues
(developed and issued in 2005 and 2006 by the Army Medical Command (“MEDCOM”) and the
Assistant Secretary of Defense for Health Affairs) explicitly included central roles for
psychologists (and not for psychiatrists) in interrogation support, 968 a result pointedly noted with
delight by various APA officials when these policies became final in 2006. 969

966

Several interviewees made this point. For example, Levant told Sidley that a goal of his trip to
Guantanamo Bay in October 2005, discussed more below, was to give a good impression of psychology
to DoD officials, which aided his long-term goal of expanding the scope of psychology. See Levant
interview (May 13, 2015), Newman, too, told Sidley about his desire to expand psychology in new areas.
He added that psychiatry often impeded on APA’s efforts to expand its role in DoD. Newman cited
APA-supported Psychopharmacology Demonstration Project, a temporary DoD training program in the
early to mid-1990s where military psychologists could attain prescription privileges, as an example. See
Newman interview (Apr. 29, 2015).
967

Koocher interview (June 12, 2015).

968

The Health Affairs and MEDCOM policies that discussed the role of psychologists on BSCT teams
were released in June and October of 2006, respectively. See Medical Program Support for Detainee

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This DoD policy topic arose on January 4, immediately following the publication of
Bloche and Marks’s New England Journal of Medicine article. In an email from Behnke to
Koocher and Levant (copying Honaker, Farberman, Gilfoyle, and Mumford), he explained that
the article referred to “a confidential effort” by the Army Surgeon General’s Office “to develop
rules for health care professionals who work with detainees.” Behnke said that APA could
“explore the possibility of collaborating with the Army Surgeon General in some fashion. We
could explain that APA is actively examining the ethical aspects of mental health professionals’
involvement in these activities and that a collaboration between health and mental health
professionals could be very productive.” 970
Koocher’s telling response linked APA’s attempt to influence DoD’s policy development
with who would be included on the task force: “This is a great idea. I’d suggest a back channel
contact via Morgan Sammons and/or Larry James asking how best to make the offer and (for
example) whether Ron [Levant] might nominate them . . . or other members with security
clearance, e.g. Robert Fein, to represent psychological ethics issues.” 971
After Levant said he agreed and asked, “How best to proceed?”, Behnke confirmed the
strategy and discussed implementation: “Let’s follow Gerry’s suggestion of a back channel
contact; I’ll confer with Geoff Mumford in Science to make it happen.” 972
Mumford then responded solely to Behnke, although he copied his boss (Breckler) and
colleague (Kelly) in the Science Directorate, stating that Kelly was exploring the matter, that
they would explore the contacts Koocher recommended “but have others in the mix too (CIFA,
Pentagon, etc.), hope that’s ok? OSTP has also expressed an interest in being helpful, we’ll have

Operations, 2006 DoD Instruction, available at
http://www1.umn.edu/humanrts/OathBetrayed/Winkenwerder%206-6-2006.pdf; Behavioral Science
Consultation Policy, OTSG/MEDCOM Policy Memo (Oct. 20, 2006), available at
http://www.nejm.org/doi/suppl/10.1056/NEJMp0806689/suppl_file/nejm_marks_1090sa1.pdf. The
Health Affairs document included a two-page overview of the standards and procedures for behavorial
science consultants. The MEDCOM policy focused entirely on BSCTs and became the basis for
subsequent BSCT policy memoranda.
969

After the Health Affairs June 2006 statement was released, Levant responded to the Executive
Management Group’s listserv by asking “[a]re psychiatrists the most ethical or the least-well trained?”
Newman responded that there was a “gap” between the training psychiatrists have and what psychologists
already have. APA_0192920.
970

APA_0023341.

971

Id. Sammons told Sidley that, despite him being the Specialty Leader for Navy Clinical Psychology,
he was not involved with policy development for BSCT policy, which fell under the purview of the
Army. Navy psychologists were not part of BSCT teams. He did not recall that anyone at APA contacted
him about these policy issues at this time. Sammons interview (June 23, 2015).
972

Id.

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to think about how…perhaps on the IOM end.” 973 Mumford then added in an email just to
Behnke: “[B]tw, I’m not copying the big brass because they seem a little impulsive in their use
of email and we’ll never get anything done.” Behnke responded, “good idea. very good idea.” 974
Later in January, Kelly forwarded a letter on behalf of Behnke and APA to Scott Shumate
as the Director of Behavioral Science at CIFA. 975 Noting his understanding that DoD Office of
General Counsel “may be reviewing or drafting a policy on the involvement of mental health
professionals in interrogation settings,” Behnke’s letter said that APA was “particularly
interested in ethical issues” on this topic and offered “the expertise of our disciplinary
association as a resource to DoD throughout this process.” 976
2.

Involvement of Russ Newman and Morgan Banks

Meanwhile, Russ Newman continued to be involved in the task force development
process through his connection with one of the key psychologists in DoD, Morgan Banks, who
was the Army’s Command Psychologist and Chief of the Psychological Applications Directorate
973

Id. (ellipsis in original). Mumford told Sidley that the CIFA contact he referenced may have been Kirk
Kennedy, and that the Pentagon contact may have been Janice Laurence, then-Director of Research and
Analysist at DoD (Email from Mumford to Sidley, June 18, 2015). The OSTP reference was to Susan
Brandon at the White House’s Office of Science and Technology Policy. IOM is the Institute of
Medcine, the health arm of the National Academy of Sciences. See Institute of Medicine (www.iom.edu).
Kelly was building a relationship between APA and CIFA at this time through her developing
relationship with Shumate and (to a lesser extent) Kennedy, who she had met while he was working at the
CIA with Hubbard. Among other things, APA created a fellowship position at CIFA, and Shumate and
Kennedy placed Kelly on an advisory committee to advise CIFA on overall strategy issues. See
APA_0024788; APA’s first Department of Defense summer fellows examine counterintelligence ,
available at http://www.apa.org/gradpsych/2005/09/defense.aspx.; APA_0129612; APA_0129614 &
APA_0129615 (CIFA Strategic Program Statement, Mission and Function Statements).
974

APA_0023341.

975

APA_00129743; APA_0023200. Before sending the letter, Behnke emailed Honaker on January 25
(copying Kelly and Mumford) asking for permission to sign the letter and said that Kelly and Mumford
had drafted it. Honaker said “[o]kay.” APA_0023187. Later that day, in a separate email exchange
between Mumford and Brandon, Brandon said she hoped to visit CIFA the next day “and see what they
are up to.” In response, Mumford forwarded her Behnke’s letter to Shumate and said “I’ll fill you in on
background over the phone.” APA_0029349. Mumford could not recall anything significant that he
passed on to Brandon other than what was set out in the letter. Mumford interview (May 18, 2015).
976

APA_0023200. The day before on January 24, in response to Norman Anderson’s regular written
report to the Council of Representatives regarding the activities of APA staff, which included a short
summary of the October 2004 meeting that Mumford and Kelly and had with Shumate and Kennedy at
CIFA “to discuss possible areas of collaboration,” Council member Edmund Nightingale emailed
Anderson to ask “what relationship there is, if any, between” this CIFA interaction and the issue recently
raised by a Council member about “psychologists being involved in guiding interrogations at Abu
[Ghraib].” Anderson told Nightingale he would check with Mumford and copied him on the response.
Mumford wrote a draft response and forwarded it to Behnke for his review. Behnke suggested
reformulating the response to make it more general and to say that “ethical considerations will of course
be front and center in any exploration of discussion of these issues, to the extent that ethics are relevant to
the subject matter of the collaboration.” APA_0023205.

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in the Special Operations Command, and who helped run the Army’s SERE school located in Ft.
Bragg, NC. Dunivin and Banks had come to know each other because Dunivin had attended
SERE training at Ft. Bragg. She had been tasked to handle the repatriation of a female U.S.
soldier who had been captured in Iraq, which involved discussions and training with SERE and
other psychologists at Ft. Bragg, and had dealt closely with Banks since she had been deployed
to Guantanamo Bay as head of the BSCT team in November 2004. As shown by Dunivin’s
email exchanges during this time and confirmed by her interview with us, communication from
Guantanamo Bay was difficult, which might explain why the communication from APA to
Banks ran directly through Newman during this time, rather than through Dunivin.
On the morning of Monday, January 10, Newman had a conversation with Banks, who
Newman described in an email to Mumford, Breckler, Behnke, Honaker, and Kelly as the
“Senior Army Psychologist in Special Operations.” 977 Newman told the group that he wanted to
discuss his call with them. (All the witnesses said they could not remember the details of the call
or the conversation about it.)
The next day, Mumford and Kelly met with Newman to discuss his conversation with
Banks, who Mumford described as “his [Newman’s] guy in Special Ops . . . who heads the
psychology component of the . . . SERE training school.” After explaining that Newman thought
it would be helpful to include Banks in discussions about APA being helpful to the Army
Surgeon General’s Office regarding their policy development effort, Mumford explained
Newman’s summary of Banks’s suggestion regarding security clearances for task force
members:
Russ also relayed Morgan's suggestion that we include some folks with security
clearances on the Task Force so that they'll be more likely to be able to sit down with that
operational community and directly convey to them what the Task Force is up to. Some names
he mentioned were Joe Matarazzo, Marty Seligman, Scott Schumate [sic]. We told him about
Mel Gravitz. Maybe we can chat tomorrow morning. 978
The “directly convey” language most likely suggests that Banks may have wanted task
force members who could confer with military psychologists in the field during the task force to
ensure that the task force was not doing something that was inconsistent with their needs or
preferences. 979

977

APA_0023260.

978

APA_0023249.

979

In his interview with Sidley, Newman said that Banks’s comments were educated by his dissatisfaction
with APA at the time. Banks expressed concerns, Newman said, from people in the field who did not feel
APA supported them and who could not speak about these sensitive issues to APA. Newman added that
he was unaware whether Banks believed it was important for DoD to be aware of the task force’s actions.
Newman interview (April 29, 2015). Behnke speculated in an interview with Sidley that Banks brought
up the clearance point to underscore the need to have people in the room who had first-hand experiences
and could speak frankly about them. He remarked that Banks and others did not view APA favorably and
may have worried that the organization might undercut operational psychologists during wartime. Behnke
interview (May 22, 2015). Banks shared with Sidley a letter he wrote in 2009—when he rejoined APA—

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Meanwhile, by January 13, Newman had communicated that he wanted to see the draft
task force proposal changed to use a different word other than “coercive” a point that Banks
would make in later emails, strongly suggesting that Newman was proposing a different word in
light of his conversation with Banks. Specifically, on January 13 Behnke emailed the key staff
group (Honaker, Newman, Farberman, Gilfoyle, Breckler, Mumford and Kelly) attaching the
draft task force proposal and asking for any suggested changes. Behnke noted that Mumford had
mentioned that Newman “had an alternative suggestion for the word ‘coercive’ and asked
Newman for a comment on this. 980 In response, Newman told Behnke that he may wish to
mention “effectiveness” in the proposal as well. 981 Newman explained to Sidley that this
addition reflected the “collateral science practice issue” about whether a psychological
intervention was measured by efficacy or effectiveness. 982 The difference between the version
brought to the December 2004 Board meeting and the official version submitted at the February
2005 Board meeting was that “coercive techniques” was replaced with the innocuous term
“various investigative techniques” in a manner that (as Gilfoyle’s prior email foreshadowed)
avoided the difficult question regarding what ethical position to take if “coercive techniques
were found to be effective.” 983 Newman told Sidley that he did not recall the conversations then
about removing the word “coercive,” but he commented that neither Banks nor his wife Dunivin
would have liked it since it suggested from the outset that interrogations per se were
problematic. 984
On February 1, Kelly met with Col. Bruce Crow, then-chief psychology consultant in the
Army Surgeon General’s office and sent a summary of her meeting to Newman, Behnke,
Mumford, and Breckler, along with a follow up email to Crow. 985 At the meeting with Kelly,
Crow confirmed that “an internal group within the Army Surgeon General’s office is currently
reviewing the issue of mental health professional and interrogations and putting together some
sort of report.” Crow told Kelly that he did not know who was in this internal group and did not
know its time frame. Crow reported that “the team has talked extensively with ‘a psychologist”
involved with the interrogation groups as part of its information-gathering process” and that “a

that stated Banks originally resigned from APA in 1996 due to APA’s then-ban on military advertising in
APA publications and at APA events (on file with Sidley).
980

APA_0049918.

981

Id.

982

Newman interview (June 15, 2015).

983

Compare December 2004 draft proposal, APA_0058508 (“What does current research tell us about the
efficacy of coercive techniques? How would our ethics be affected, if at all, were coercive techniques
found to be effective?”) with February 2005 final proposal, APA_0025740 (“What does current research
tell us about the efficacy and effectiveness of various investigative techniques? Would the efficacy and
effectiveness of various investigative techniques, if demonstrated, affect our ethics?). The issue of
effectiveness with abusive techniques arose again during the Board’s approval of the PENS report on July
1, 2005, as discussed later in this section.
984

Newman interview (June 15, 2015).

985

APA_0129089.

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variety of groups across DoD are looking at the issue but isn’t sure if or how any are
coordinating/collaborating.” Crow told Kelly that “input from disciplinary associations (MD,
psychology, social work) would be very important to their process.” He said he was interested
that APA was forming a task force on the issue and offered to serve as an observer. They also
discussed setting up a separate meeting with Morgan Banks. 986
Newman responded to Kelly’s email that he was going to meet Banks the week of
February 7. 987 The two likely met for dinner on February 9. 988
Notably, Banks received a copy of the draft task force proposal (formatted the same way
the Board ultimately received it, as an agenda item) before the Board did during its February 16
– 17 meetings and emailed written comments on the draft to someone at APA. Although there is
uncertainty about how Banks received the document and who he sent it to, our belief based on all
the evidence is that Newman provided Banks with the draft and Banks sent back to Newman an
annotated copy that included his comments. 989 Newman told Sidley that he and Banks spoke
over the telephone and met for dinner during this time period, so it was a reasonable assumption
986

Id; see also APA_0129866 (email between Crow and Kelly). As a follow up to the meeting, Kelly
emailed Crow the “draft version” of the proposed task force that APA Board would be considering at its
February 16–17 meeting and asked him to “keep it close” and said that “w[e] would love to meet with
you to talk about these issues and ways to coordinate/collaborate.” Crow response pointed out that APA
task force’s effort should “serve national security”. Id. (“We welcome APA assistance in establishing
guidelines that serve national security while preserving professional integrity.”) In addition, following up
on Kelly’s comment in her email that she and Behnke were meeting “informally” with Senate Armed
Services Committee (“SASC”) staffers the next week to brief them on the topic, Crow asked Kelly to
deliver a positive message about DoD to the SASC: “The message I would like the SASC to hear is DoD
psychologists are deeply committed to the highest standards of clinical practice and professional ethics.”
Id. According to a draft note from Behnke about the meeting, Behnke and Kelly “emphasized that APA
would very much want to see psychology included in” DoD’s ongoing discussions about the proper role
in interrogations for mental health professionals. APA_0129061. Kelly exchanged messages with Crow
about these issues in May and August 2005 as well. APA_0128753. Crow, along with his counterpoints
from the Navy (Morgan Sammons, in particular), Air Force, and the Public Health Service met
periodically from 2005 at APA to discuss issues related to, according to Sammons, recruitment,
deployment, and networking across the various DoD branches. Crow interview (June 22, 2015);
Sammons interview (June 23, 2005).
987

APA_0129089.

988

APA_0129054. Newman made reference to meeting Banks the night before on February 9.

989

See Banks comments on agenda item (provided to Sidley on March 1, 2015). We received the draft
with Banks’s comments from Banks as a digital file, and the metadata dates on the document indicate that
it was last saved on February 13, three days before the beginning of the Board meeting. Further evidence
that the document predated the February 2005 Board meeting is found in copies of the Board agenda item
given to PENS Task Force members in April 2005. The copy from April omits two more-sensitive items
found in Banks’s copy of the agenda—(1) the first page, where Banks’s copy stated that the money
allocated to for the task force would come from the 2005 discretionary fund, and (2) on the second page,
where Banks’s copy noted that an exhibit with potential task force member names would be included with
the agenda item.

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that he may have served as a “conduit” for collecting Banks’s comments and sending them to
someone like Behnke. 990
Banks’s comments on the task force proposal made points that are consistent with the
ultimate direction of the PENS task force. First, he strongly implied that the “do no harm”
principle should not be applied broadly by the task force, since (1) it “may impact on a large
number of psychologists, for example, those who work for police departments, or for the prison
system,” and (2) “any psychologist who assists in making soldiers more effective, increases the
likelihood of causing someone harm.” Second, he implied that it would be very difficult to
discuss or draw any conclusion about the ethics of specific interrogation techniques since “[t]he
tactics, techniques, and procedures (an Army term) may be classified.” Third, he said that the
task force “would be a great opportunity for APA to support classified research” on the topic of
the “efficacy and effectiveness of various investigative techniques” (a phraseology paralleled in
the PENS report in recommending future research). Fourth, he revealed that he had provided
APA person who was receiving the comments (apparently Newman) “the chapter [w]e wrote”,
which covered issues of informed consent in interrogations. 991
Banks’s chapter comment is clearly a reference to the draft document entitled “Providing
Psychological Support for Interrogations” (“PPSI”) (and which was formatted at the time as two
“chapters”) that Banks and Dunivin had drafted and which Banks provided to Behnke in advance
of the PENS task force meeting. The PPSI was distributed at the task force meeting and
eventually became (almost verbatim) the interrogation policy of the Army Medical Command in
2006. The key point in this draft document was that a psychologist’s role in interrogations must
be analyzed using a four-word formula—“safe, legal, ethical and effective” —with the analysis
under each word discussed in some fashion. After Banks provided this formula to Behnke, and
Behnke wrote language for task force chair Olivia Moorehead-Slaughter to recommend the
formula to the task force (discussed more below), it became the key formula for the PENS task
force and report.
Thus, even before the Board had voted to actually form the PENS Task Force, Banks was
communicating to APA (apparently through Newman) some of the key points regarding how he
and DoD would want to see the task force address these issues. Our investigation found no other
990

Newman interview (June 15, 2015). The conclusion that Banks was corresponding with Newman
about the document is the most logical one, since (1) Newman met with Banks the week of February 7,
(2) Banks’s comments on the document are clearly to someone at APA, and (3) at that time it appears that
Newman was the person at APA that Banks was closest with. In addition, since Newman’s APA emails
are no longer within APA’s possession (as Newman left APA in 2007), this provides an explanation as to
why we did not find the document within APA’s email files (although it also may have been deleted from
another current employee’s emails). There is also no record of Behnke, Mumford, or Kelly sending the
document to Banks. And Dunivin indicated to Sidley that she did not recall ever seeing a task force
proposal in February 2005. Dunivin interview, May 27, 2005. Banks said he could not remember who he
received the document from or who he sent it to, and Newman said he could not specifically the
document. Banks, now retired, said he no longer had a record of the original email. Email from Banksto
Sidley (May 26, 2015). A FOIA request from Sidley to DoD for related emails or documents is pending;
no response has been received by DoD as of the writing of this report.
991

Banks comments on agenda item (on file with Sidley).

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instance of someone outside APA—either outside DoD, outside the government, from within the
pro-human-rights community, or otherwise—being asked to weigh in on the task force proposal
in advance of the Board meeting.
3.

Board approval of task force

The APA Board met on February 16 and 17 and voted to approve the creation of a “Task
Force to Explore the Ethical Aspects of Psychologists’ Involvement and the Use of Psychology
in National Security-Related Investigations” and to allocate $12,500 for it. 992 A list of suggested
task force member names were distributed during the Board’s Executive Session. Behnke
suggested that the potential names be distributed in a confidential “Executive Session” “[g]iven
the political aspect of choosing” task force members and the “possibility of provoking strong
feelings from people who feel slighted or left out.” 993
The names included in the Executive Session handout were the same as those on the
January 18 list, now without any asterisked names, plus one additional name—David Shapiro, a
Professor of Psychology at New York University. 994 Shapiro was added to the list after he wrote
a letter regarding his disappointment at APA’s responses to the abuses at Guantanamo Bay ,
which a Council representative, Trish Crawford, forwarded to the Council listserv on the evening
of January 18 as discussed above. 995 Crawford later suggested to Levant that Shapiro would
make a good addition to his task force. 996
Despite this list of names and APA staff’s recommendations regarding its top 10 names,
the Board did not select the task force members at this meeting but instead decided to issue a
broader call for nominations. The Board minutes note that Levant would send a call for
nominations to Council. On February 17, communications were sent out to the Council of
Representatives, divisions, boards and committees announcing the formation of the task force
and that nominations would be accepted. Neither Levant, Behnke, nor other Board members
during this time could recall the specific discussions about calling for nominations after the
meeting. Divisions, APA committees, state psychological associations, and individuals all
submitted nominees in the weeks ahead.
We can speculate on three possible explanations for the shift to a full call for nominations
after the Board meeting. One possibility is that Koocher or Levant may have reviewed the list
anew and realized that more names were needed during the Executive Session. Another
possibility is that other Board members during the meeting raised concerns about having a
broader list of nominations before finalizing the task force. A third, perhaps more underhanded,
possibility is that Newman’s (and later Dunivin’s) involvement with the Board meeting led to an
open call of names. As discussed, Newman likely received Banks’s thoughts on the task force
992

Approved Minutes of the Board (Feb. 16, 2005 & Feb. 17, 2005) (on file with Sidley).

993

APA_0034126.

994

Executive Session Handout (Feb. 16, 2005 & Feb. 17, 2005) (on file with Sidley).

995

APA_0034381.

996

APA_0844673.

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board item ahead of the Board meeting. Further, Newman told Sidley that he was concerned the
task force would be staffed with people who did not have the appropriate knowledge of the
issues to accurately comment on them. 997 Newman was also in contact with APA staff ahead of
the Board meeting and, as a member of the Executive Management Group, participated in the
Board meeting discussions about the task force issue. If Newman saw the list of initial task force
individuals and was concerned about their competencies in this area, then, it is possible he would
have informed Board members—either during their meetings or in private—that a wider call for
nominations was needed. He could have then informed Dunivin of his concerns who, one week
later, conveyed her desire to have Banks on the task force (discussed more below), which
propelled the task force to take a different complexion than what Behnke, Mumford, and Kelly
had originally planned.
The evening of February 17, Behnke sent Levant an email confirming the details of what
had been discussed at the Board meeting regarding next steps:
The Board liasons [sic] are Gerry Koocher and Barry Anton. The Task Force will
be staffed by the Ethics Office and the Science Directorate. Nominations are
being sent to me, and the Ethics Office (Rhea Jacobson) is updating the list daily.
The final day for nominations is March 1. We will have a conference call
(tentatively scheduled for Tuesday, March 9), at which time you will choose the
individuals for the Task Force. Before then we will have provided you a complete
list of individual's names and biographical sketches for your review. We will also
have drafted a letter that will be sent to the individuals whom you choose, that
will provide possible meeting dates and other relevant information (e.g., the
person will need to be able to attend and able to vote in order to be on the task
force). My guess is that we will have over 200 names for your consideration. 998
Levant responded solely to Behnke’s prediction of how many nominations would come
in: “Wow! 200 names … that is amazing.” 999
D.

February 17 - March 18, 2005:
finalized
1.

Influence of Debra Dunivin; task force

Some early communications about task force nominees

Once the call for nominations was sent out on February 17, a variety of nominations and
communications came in to APA in various ways. Notable examples include an exchange with
Robert Kinscherff—who was a close friend of Behnke’s, knew Robert Fein from their work on
forensic psychology issues in Boston, and was chair of APA’s Committee on Legal Issues
(“COLI”) and former APA Ethics Committee chair—in which he commented swiftly and
positively on three eventual government members of the task force.

997

Newman interview (Apr. 29, 2015).

998

APA_0037359.

999

Id. (ellipsis in original).

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Kinscherff was responding to a post on the COLI listserv by APA the afternoon of
February 17. There, a psychologist who worked at the U.S. Secret Service’s National Threat
Assessment Center—and therefore had worked closely with Robert Fein—posted on the listserv
that Scott Shumate “would be very well-suited for this.” Fein worked with Shumate at CIFA in
DoD. The evening of February 17, Kinscherff posted on the listserv in response, stating, “I
would agree heartily with the nominations of Scott Shumate, Robert Fein, and Charles Ewing,”
and added that Michael Gelles would be a good nominee. Later that evening. Behnke emailed
Kinscherff a short thank you note using the lingo they often used with each other in emails. 1000
Although the behind-the-scenes communications are not made explicit in this email exchange,
and Behnke, Fein, and Kinscherff did not recall anything about this exchange from 10 years ago,
it strongly suggests that Behnke, Kinscherff, and Fein had coordinated this exchange in some
way to ensure that Shumate, Fein, and Gelles would be nominated with prominent
recommenders, especially in light of the way the detailed and sophisticated behind-the-scenes
manner we observed Behnke typically operating. Behnke also emailed Fein about two weeks
later, noting that “[t]hese appointments are very political.” 1001
Also on February 17, former APA President Ronald Fox (“Fox”) emailed Levant to offer
his assistance: “If it helps, I am willing to be an informal advisor behind the scenes as long as I
do not leave my fingerprints on it, so to speak.” 1002 Levant forwarded the email to Behnke, who
responded to Levant that “[a]t your suggestion, I did speak with Ron [Fox] about the task [force]
several weeks ago. I will certainly keep him ‘in the loop,’ although without requiring his
fingerprints.” Levant responded, “Smile… Thanks.” 1003 Behnke and Fox did not remember this
communication, and neither thought that Fox had had any involvement in the task force, or that
the two of them had any additional communications following this apparent conversation
referenced in the email. 1004 Levant told Sidley in an interview that Fox’s comment may have
been the result of his advisory relationship with the CIA at the time, as described earlier in this
report. 1005 On the one hand, our investigation found no evidence that Fox was having any
dialogue with Behnke or anyone else about the task force, or that he was being used as a conduit
1000

APA_0046817 (“You are indeed the dudissimus.”). For more on Michelle Keeney, the psychologist
who initially posted the message that Fein responded to, see Secrets behind the service, Monitor on
Psychology (Sept. 2008), available at http://www.apa.org/monitor/2008/09/secrets.aspx.
1001

APA_0035172. Fein emailed Behnke on March 1 stating that Shumate had encouraged Fein to serve
on the task force; Fein therefore wanted Behnke’s advice as to whether to put his name in and how to do
so. Behnke wrote that “[t]hese appointments are very political” and there were many nominees, but
“there are no more than a handful of people in the country with your experience, and I will be very happy
to speak with Ron Levant personally on your behalf.” Fein asked in response if he should send a note to
Ron whom he had known since they were in graduate school together, or to Koocher. In response,
Behnke asked if he could speak with Fein by phone about it. Id. Neither Behnke nor Fein recalled the
conversation. Fein’s nomination form states that he was nominated by himself and by Kinscherff and was
recommended by COLI “with the following comment: ‘He has an ongoing contract with a defense agency
and provides consultation in this area.’” HC00085941.
1002

APA_0037360.

1003

Id. (ellipsis in original)

1004

Fox interview (June 11, 2015); Behnke interview (May 29, 2015).

1005

Levant interview (May 13, 2015).

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by the CIA or others to influence the task force. On the other hand, given the secretive nature of
the CIA and its activities, it is not a possibility that can be ruled out.
2.

Influence of Debra Dunivin

The evidence shows that the most meaningful and influential communication regarding
the composition of the task force came from Debra Dunivin, then chief Army BSCT
psychologist at Guantanamo Bay, in several communications starting the day after the February
Board meeting and running to the date of the selection committee meeting on March 18.
Dunivin was a member of APA’s Council of Representatives at the time, and the
Council’s February meeting was February 18 – 20, immediately after the two-day Board
meeting. Dunivin told Sidley that she returned to Washington from Guantanamo Bay to attend
the Council meeting. As recounted in a subsequent email exchange and in Dunivin’s interview
with Sidley, Dunivin spoke with Levant and Behnke during the Council meeting about the
newly-formed task force and communicated strongly to them that it was essential that they
include certain military and DoD officials, so that the task force could be properly informed by
the psychologists who correctly understood the issues and challenges as a result of their work in
the field for the government. Dunivin said she told Levant in particular that it was essential for
APA to have a proper outcome from the task force, because ethical guidance for psychologists
who supported interrogations at Guantanamo Bay and elsewhere was badly needed, although it
needed to be the right kind of guidance. 1006
Dunivin told Sidley that her view was that APA should indicate that it was ethical for
psychologists to participate in interrogation support within certain guidelines. But she
commentated that APA should not attempt to define with any specificity what the military should
or should not do regarding interrogation techniques, since APA did not have the expertise to
understand whether certain techniques would elicit accurate information. Dunivin said she was
against harsh and abusive interrogation techniques, and that the Army had done a good job of
correcting prior mistakes. Hence by 2005, she and other psychologists were doing a good job,
Dunivin claimed, of preventing interrogators from engaging in such techniques. As to what
ethical guidelines or boundaries should be placed on psychologists from APA, her view was that
the “safe, legal, ethical and effective” formula she had created with Banks was a strong and
sufficient approach. Dunivin said that her commander and people in the intelligence and
detention community told her that psychological expertise aided their efforts. It was important,
therefore, to have professional associations support these psychologists’ roles to alleviate the
ability of a psychologist losing their license for being in these settings at all, she said. 1007
Dunivin said that one of the key points she communicated to Levant in this regard was
that it was essential to include Morgan Banks on the task force (among others), so that the right
kind of knowledge and expertise could be included on the task force. She recalled that she was
likely quite insistent with Levant and may have “gotten in [Levant’s] face” about the issue. 1008
1006

Dunivin interview (May 20, 2015).

1007

Id.

1008

Dunivin interview (May 27, 2005).

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Dunivin sent Behnke and Levant an enthusiastic follow up email on February 24, copying
Newman and Banks. She said she wanted to “underscore how strongly I feel that you must
include Colonel Morgan Banks on this Task Force. He’s the person with the absolute most
experience in this area.” Dunivin also said she agreed with the comment Levant had made to her
that “this is likely the most important thing that APA will do this year.” Dunivin offered to assist
in any way she could. 1009
On March 2, Dunivin (who was back at Guantanamo Bay) emailed Behnke saying she
wanted to talk with him and had tried unsuccessfully to reach him by calling APA. 1010 As they
emailed about how to connect by phone, Dunivin said that she “wanted to talk a bit about the
composition of the Task Force before it’s finalized.” Behnke responded on March 15 that “[w]e
are getting down to the wire” and suggested a call that evening or the next day. Dunivin
responded right away and asked if Behnke was available then, and they appear to have connected
by phone that morning and to have discussed her sending in a written suggestion about who
should be on the task force. (Both said they do not remember the call.) The afternoon of March
17 she asked if she could send him “my note” the next morning and said it was “almost written.”
Knowing that the selection committee meeting was the next day, Behnke responded that it would
be “ideal” if Dunivin could submit that evening, or otherwise as early as possible the next
morning. Later that afternoon, Dunivin attached a letter to an email to Behnke, and wrote in her
email, “[h]ope this accomplishes its purpose….REALLY appreciate your help with this.” 1011
The one-full-page, single-spaced letter from Dunivin listed all six of the government
officials who were initially selected by the selection committee. 1012 Her letter was (based on the
evidence) the only document with nominee names distributed at the selection committee meeting
1009

APA_0046640. Behnke forwarded Dunivin’s email to Kelly, who responded that Banks was
“supposed to be great” and that Newman knew him. Id. Behnke responded, “Okay, good – we’ll
definitely want to have our ‘top ten’ going into the conference call.” Id. This was apparently a reference
to the originally-scheduled March 9 conference call to discuss nominees. We found no evidence that such
a call occurred, and believe that instead, the only discussion with Levant, Koocher and Anton about task
force nominees occurred on March 18 in person. On March 11, Behnke emailed Anton and Koocher,
copying Levant, stating that “[w]e have just completed compiling the list of nominees for the Task Force,
and have 110 names.” APA_0035852. Behnke said Levant wanted to meet the next weekend when they
would be together for APA “Consolidated” meetings of boards and committees, and this is what occurred
(on Friday, March 18).
1010

APA_0048446. Also around this time, on March 1, Col. Larry James (“James”) emailed Levant about
his interest and concerns about serving on the task force. In particular, James noted a “fear of preconceived biases of some who may be anti-military.” Levant forwarded the message to Behnke, who
stated he would contact James about his concerns. Behnke wrote Levant, “We will strive to be sensitive
to the concerns of our colleagues in the military, and when assembling the task force a top priority will be
to ensure that we have individuals who are informed about the issues, and bring an open mind to the
complexity and challenge of thinking through the ethical aspects of this work. We are aware of the strong
feeling that media accounts have elicited, but as a scientific profession our first obligation is to begin with
the data.” APA_0036276.
1011

APA_0048446 (ellipsis and capitalization in original).

1012

One of the six, Thomas Williams, was never actually contacted by the selection committee but had his
spot taken by a different military psychologist, Bryce Lefever, as shown by Behnke’s handwritten notes.

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other than the full packet of all the nominees, which included information they or their
recommenders had submitted and a nominee’s APA membership information if applicable.
(Behnke’s hard-copy file included six copies of Dunivin’s letter, one of which had a small
amount of notes from Behnke on it, and Behnke and Koocher recalled the document being
passed out at the meeting.) The document, and Dunivin’s communications with Behnke, Levant,
and Koocher (see below) are, thus, likely the most influential communications on the task force
at its selection of task force members that the selection committee received. After an
introductory sentence, Dunivin’s letter to Behnke began:
We are agreed that composition of the Task Force is critical to accomplishing its
mission. I am concerned that in our efforts to be broad-based within psychology,
we will miss some critical areas of expertise in the actual field that is the focus of
the TF. . . . I am suggesting that the following people MUST be included in order
to ensure that we: 1.) cover the various categories of expertise within the field of
psychology related to national security (i.e., interrogation support, profiling,
counterintelligence, policy development) and 2.) include some folks who provide
a bridging or cross-over function between the various components – those known
and respected within APA governance, with experience working in these unique
areas of professional practice, familiar with the ethics issues inherent in this
work. 1013
She then listed nine names (including herself) along with descriptions of why they were
important and how important they were. The names were:
x

x
x
x
x
x
x
x

Morgan Banks (“the [U.S. Army Special Operations] Command psychologist
with policy oversight for behavioral science consultation team support for all
Special Operations Command in support of national security issues. Decades
of experience in this area. Absolutely essential to the work of the TF.”)[ task
force member]
Thomas Williams (“Essential”) [initially listed as the tenth member of the task
force in Behnke’s notes from the March 18 selection committee, but not
ultimately chosen and replaced by Bryce Lefever]
Scott Shumate (“Essential”) [task force member]
Michael Gelles (“Essential”) [task force member]
Kathleen Civiello (“Need the NSA perspective.”)
Richard Ault (“Need FBI perspective.”)
Joseph Matarazzo (“tremendous bridging function. Others who could
function in this role include Mel Gravitz and Charlie Speilberger.”)
Larry James and herself [James was a task force member]

Separately, Dunivin had been communicating with Koocher about Banks, and this
communication revealed an eventual concern about the fact that Banks was not an APA member.
In an email to Koocher that apparently was sent around the time of the February 18 –20 Council
meeting, Dunivin wrote, “I know folks are looking to add military members. The person who
1013

APA_0035179; APA_035180.

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knows most about this topic is COL Morgan Banks . . . . Those Special Ops folks have been
involved in this work for twenty years. . . . This is something most folks don't appreciate. Can
you ensure that Morgan Banks is one of the task force members?”1014
In a follow up email to Dunivin on March 15, Koocher noted that Banks was not an APA
member, and asked if he was prepared to join APA. 1015 Dunivin responded later that day that
Banks was probably not prepared to join APA, but pushed Koocher to support her and military
psychologists by including him on the task force:
I think this matter goes to the very heart of a purpose for establishing the TF - to
answer the question if APA is providing sufficient support to psychologists on the
front line of this area of practice. The answer has to be ‘no.’ I, for one, want that
to change. Inclusion of such folks begins here. With the TF. And moves on
from there. Can you support me on this? 1016
Koocher responded later that day: “It is exceptionally hard to argue that a person not
accountable to APA ethics code should be on a task force discussing ethics in psychology.
Sadly, that issue goes to the very [heart] of the matter.” 1017
On the morning of March 18, the day of the selection committee meeting, Dunivin
reached out to Behnke for his help on the issue: “Heads up on another concern that looms on the
horizon. That is the issue of APA membership.” Without mentioning Banks, Dunivin said that
she had been corresponding with Koocher on the issue, and while she typically agreed that task
forces should only include APA members, “[i]n this instance I believe there are some reasons to
consider it differently. More later.” 1018 Behnke emailed her that afternoon asking for a phone
call, but it is not clear if they connected by phone. 1019 But late that afternoon, Dunivin emailed
Koocher to thank him for his conversation (suggesting Dunivin and Koocher had spoken by
phone); her email set out more detail about Banks’s background in an effort to explain again why
Banks needed to be on the task force, in her view. 1020
Subsequent emails show that Koocher changed his mind and agreed that Banks should be
on the task force. He told Sidley that the letter from Dunivin that was passed out at the meeting
substantially influenced him. 1021 Specifically, Koocher told Sidley that he was eventually
convinced that Banks’s intimate knowledge of SERE training and other interrogation issues
1014

This content of this email, sans the date, was copied onto Banks’s nomination sheet within the packet
of nominees compiled by Behnke and APA staff. HC00008594 at 14.
1015

APA_0035139.

1016

Id.

1017

APA_0035139.

1018

APA_0048446.

1019

Id.

1020

APA_0035139.

1021

Koocher interviews (Mar. 19, 2015 & June 12, 2015).

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outweighed his demand that Banks be an APA member. 1022 The day after the selection
committee meeting, Behnke emailed Levant, Koocher, Anton, and Kelly and explained that he
had spoken with Banks, asked him to be on the task force, and had discussed the issue of APA
membership. Behnke’s email did not indicate that Banks would be willing to become an APA
member but said that Banks had indicated that he “‘certainly’ adheres to the APA Ethics Code
and will continue to do so.” Koocher responded that Behnke should tell Banks that “he was the
unanimous first choice of the selection committee . . . that we really want him on board, [and] . .
. that the president-elect [Koocher] has offered to pay his dues and that he is welcome to resign
from APA after serving on the committee if we have not won back his confidence as an
association friendly to our members in the armed services.” 1023 Banks did not rejoin APA until
2009.
3.

Final selection of task force members

On March 18, Behnke, Koocher, Levant, and Anton met to finalize the task force
names. 1024 A total of 111 nominees were compiled for review at the meeting. 1025 Of these 111
names, about 70% (77 nominees) had little or no connection to the military/government (either in
active duty or as a consultant), while the remaining 30% (34 nominees) did. 1026 However, 60%
of the 10 task force selections were military/government-affiliated members and 40% were
civilians with no connection to the military/government, as listed below:
DoD members:
x
x
x
x

1022

Morgan Banks: Command Psychologist and Chief of the Psychological Applications
Directorate of the U.S. Army Special Operations Command (“USASOC”)
Robert Fein: Forensic psychologist and consultant to the DoD Counterintelligence
Field Activity (“CIFA”)
Michael Gelles: Chief Psychologist for Naval Criminal Investigative Service
(“NCIS”)
Larry James: Chief of Department of Psychology at Tripler Army Medical Center

Koocher interview (June 15, 2015).

1023

APA_0035131. Koocher later clarified to Sidley that Banks might not have been a unanimous first
choice since Gelles and Fein were his top choices. Koocher interview (June 12, 2015).
1024

APA_0035177. The email mentioned that Kelly might be included in part of the selection
discussions, but Kelly stated that she was not part of those conversations. Kelly interview (Apr. 24,
2015). In an interview with Anton, he thought that Honaker was also in the room, but Honaker explained
to Sidley that he had no direct role in the PENS process. Koocher told Sidley that Behnke was the only
staff member in the meeting. Koocher interview (June 12, 2015).
1025

HC00008594. There are 110 names listed at the beginning of the document, but one additional name
is included in the binder, Joy Rice, who was omitted at the beginning.
1026

These numbers were compiled by examining the biographical information included in the nomination
binder, See HC00008594. In some cases, biographical information was incomplete or missing. In those
cases, a nominee was denoted as non-DoD unless indicated otherwise.

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x

PENS TASK FORCE, & INITIAL AFTERMATH

Bryce Lefever: Product Line Leader at the Naval Medical Center; was Command
Psychologist of the Naval Special Warfare Development Group during September 11
and advised on missions in Afghanistan
Scott Shumate: Director of Behavioral Science at CIFA

Non-DoD members:
x
x
x
x

Olivia Moorehead-Slaughter (chair): Senior Faculty Consultant for the Center for
Multicultural Training Program; Vice-Chair of APA Ethics Committee
Jean Maria Arrigo: Independent social psychologist; oral historian work focus on
intelligence and military community
Nina Thomas: Clinical psychologist and faculty member at New York University;
research in ethnic conflict, terrorism, and genocide
Michael Wessells: Professor of Psychology at Randolph-Macon College and
Columbia University; research and experience in war zones and child protection 1027

Behnke’s “PENS” hard-copy file contained two sets of handwritten notes on task force
selections, one set that likely arose before and one set that appears to come, at least in part, from
the March 18 meeting. 1028 The sets of notes appear to show listings of individuals who may fit
into certain categories for the task force. For example, the earlier set of notes lists the following
groupings: Ethics, Operations, Research/Science, International, and Peace. 1029 The latter set of
notes lists the following groupings: Social Psychologists, Military, Division 48, JD/Forensic,
Trauma/Effects, and International. 1030
The earlier set of notes first lists five individuals from the military and DoD (James,
Gelles, Schumate [sic], Banks, and Williams) with a bracket around them and the words
“19/operations”, a reference to Division 19 (military psychology) and the fact that these were
military or Defense Department operational psychologists. It then lists a name from “Science”
(Matarazzo), one from “international” (Wessells), and two unnamed people from “48” (Division
48, Peace Psychology), with one spot open.
The latter set of notes, which Behnke and Koocher thought came from the March 18
meeting, includes a numbering of the task force members from one through ten, and inserts a
dividing line between the top half of the list, who are DoD members, and the bottom half of the
list. Numbers 6 through 9 are non-DoD members. 1031 However, number 10 is also a DoD
member, Bryce Lefever. His name appears next to Thomas Williams (“Williams”), whose name
1027

The full biographical statements each member provided for the PENS Task force are available at
https://www.clarku.edu/peacepsychology/tfpens.html.
1028

HC00008982; HC00008985. Document HC00008992 are likely the earlier set of notes since not all
names of the final task force are listed on this set. Document HC00008985, by contrast, contains the
names of all final members (along with Tom Williams).
1029

HC00008992.

1030

HC00008985.

1031

Id.

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is crossed out. It is probable, then, that the first nine names on the list are intentionally split into
two groups (DoD vs. non-DoD), with the order within those two groups reflecting the selection
committee’s order of preference. But the inclusion of a military member (Williams, then
Lefever) as the tenth members, suggests that after deciding on nine members—and faced with a
decision about whether to choose a fifth non-DoD member or a sixth DoD member—the
selection committee intentionally chose the latter approach.
The 10 task force members are listed as follows in Behnke’s latter set of handwritten
notes:
x
x
x
x
x
x
x
x
x
x

Morgan Banks
Robert Fein
Larry James
Michael Gelles
Scott Shumate
Michael Wessells
Jean Maria Arrigo
Nina Thomas
Olivia Moorehead-Slaughter
Bryce Lefever 1032

It is unclear from any of the notes, emails, and interviews why Tom Williams’s name was
crossed out and replaced by Lefever. Williams was a top-ten choice by Behnke and the Science
Directorate in mid-January 2005, Dunivin endorsed him, and he was Division 19’s top
choice. 1033 There is also no indication from the emails Sidley collected that Williams was ever
offered a position on the task force and declined. Williams confirmed with Sidley that no one
had reached out to him about the PENS Task Force after he had submitted his nomination. 1034 It
is possible, however, that Behnke may have wanted an active duty Navy representative on the
task force. Morgan Sammons, Specialty Leader for Navy Clinical Psychology at the time,
originally nominated Lefever. He recalled that Behnke and him had a conversation, likely after
the Feburary 2005 Council meeting, where Behnke inquired whether Sammons had any
nominees for the task force in mind. Sammons told him that he would nominate Lefever. 1035
Sammons later spoke with Lefever and, according to Lefever, told him that, if Lefever was
1032

Id.

1033

APA_0023697; APA_0023695.

1034

Williams interview (June 8, 2015). In an email to Sidley, Koocher speculated why Lefever and other
DoD members were ultimately chosen: As I mentioned previously, we were trying to get broad
representation. We very much wanted Gellis because of his status as former military (NCIS) officer who
publically criticized some interrogation practices. We wanted Larry James because he’d gone into Abu
Ghraib on a “cleanup” mission after publicity on bad behavior by MPs and he’d been outspoken about
problems he’d witnessed. Morgan Banks was wanted because of his SERE experience. There most
likely would have been some type of experience or skill Lefever was presumed to have that Williams or
others mentioned by Dunivin did not. Email from Koocher to Sidley (June 13, 2015).
1035

Sammons interview (June 23, 2015).

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interested, “we’ll get you on there.” 1036 Lefever said he was interested, offered his nomination
(with Sammons’s blessing), and placed on the task force.
The latter set of Behnke’s notes also includes comments about Dunivin, possibly in
reference to Behnke and Dunivin’s earlier conversations. The notes also state, “Balance of law,
Duty, + Ethics Code.” 1037 This language is pulled directly from a subheading of a draft chapter
that Banks and Dunivin were working on at the time, “Providing Psychological Support for
Interrogations” (“PPSI”), 1038 which (set out above) became the basis of future BSCT policy
documents at the Department of Defense and from which the PENS report uses language like
“safe, legal, ethical, and effective.” 1039 The relevance of the PPSI is discussed further later in
this section as well.
Behnke began scheduling telephone calls with the selected task force members starting
later on Friday, March 18 and through the coming days. His email drafts included a telephone
script he used with each task force member during their conversation. 1040 Behnke’s script to
members noted that names would be kept confidential for the “time being,” that task force
“names will be public,” that task force members “must be able to” vote, and that members should
raise any issues that might embarrass APA (the “ugly question” is what this refers to in Behnke’s
notes). 1041
In interviews with Sidley, neither Levant, Koocher, Anton, or Behnke recalled what
specific conversations occurred during the March 18 meeting that led them to ultimately choose
these 10 names over other nominees, or why the tenth member chosen was a DoD member rather
than a non-DoD member, even though this decision led to the much-criticized 6-4 split of the
task force (6-3 if you consider that Moorehead-Slaughter was a non-voting chair of the group).
Levant commented that he had a very “hands-off approach to PENS,” and that he likely deferred
to Behnke, Koocher, and Anton. 1042 Each offered general insights on those selected but did not
recall the specific decision or conversations about each member. In their interviews (except as
noted below), they offered the following statements about why each member was selected.
Although in light of their caveats that they could remember little about this meeting, we do not
put much weight on these statements:
x

Morgan Banks (“Banks”)

1036

Lefever interview (May 3, 2015).

1037

HC00008985.

1038

HC00008909; HC00008914.

1039

Dunivin’s March 18 message to Koocher alluded to Banks’s role in incorporating his language into
past and future Army policy documents: “In fact, he espouses that in writing in the . . . manual he has
developed for psychologists working in this area of practice. Further he has been instrumental in
inserting this language in the Standard Operating Procedures developed at my current location, and we
expect that this language will soon be implemented Army-wide as a result of his efforts.” APA_0035139.
1040

APA_0008984.

1041

Id.; See also Behnke interview (May 22, 2015).

1042

Levant interview (May 13, 2015).

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As noted above, it appeared that Banks was the top selection of the group.
Koocher raised issues about his lack of APA membership, discussed further
below.
o Anton recalled that it was important that Banks participate because “he was
the head of the whole thing” and knew about the interrogation history at the
time. 1043
Robert Fein (“Fein”)
o Koocher described Fein as a long-time friend who had consulted with the FBI
and Secret Service. He explained that Fein was selected because “he had
expertise in threat assessment and ‘knew the scientific data.’ ” 1044
o Behnke noted in an email response to Fein’s task force nomination that “there
are no more than a handful of people in the country with your experience and
I will be very happy to speak with Ron Levant personally on your behalf.” 1045
Michael Gelles (“Gelles”)
o Koocher explained that the selection group specifically selected Michael
Gelles because he was an outspoken opponent to the Bush administration
procedures. 1046
Larry James (“James”)
o Koocher stated that James was selected because he had been sent to Abu
Ghraib, and Koocher “figured that if there was anybody who would know
about abuses it would be Gelles and James.”1047
Bryce Lefever (“Lefever”)
o Koocher believed Lefever, along with Shumate, were selected because they
were “most likely to know the naughty stuff” that was going on, even though
they had not publically spoken out. 1048
Scott Shumate (“Shumate”)
o See Koocher’s note on Shumate above.
Olivia Moorehead-Slaughter (“Moorehead-Slaughter”)
o Anton recalled that the March 18 meeting discussed appointing a task force
chair who was well-respected and neutral. He had a lot of respect for
Moorehead-Slaughter. She was not the only person discussed as chair (as
mentioned earlier, Behnke early on suggested Robert Kinscherff as a possible
task force chair) but he recalled that her diversity was important to the
selection group. 1049
Jean Maria Arrigo (“Arrigo”)
o
o

x

x

x

x

x
x

x
1043

Anton interview (May 8, 2015).

1044

Koocher interview (Mar. 20, 2015).

1045

APA_0035172.

1046

Koocher interview (Mar. 20, 2015). Gelles had been a whistle-blower on abuses occurring in
Guantanamo Bay related to the Mohammed Al-Qahtani interrogation.
1047

Id.

1048

Id.

1049

Anton interview (May 8, 2015).

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x

PENS TASK FORCE, & INITIAL AFTERMATH

o Koocher commented that he thought Arrigo’s name sounded like she might be
Latina or Asian and that he wanted to achieve ethnic diversity in the task
force. 1050
o Behnke’s latter set of notes confirm that the group thought Arrigo was Latina.
For one, there is a note next to Arrigo’s names that says “Latina.” And there
is another note that states “3 women” and “3 minorities;” James and
Moorehead-Slaughter are African-American, so Arrigo was the third member
they thought who was ethnically diverse. 1051
Nina Thomas (“Thomas”)
o Koocher believed that Thomas would be “sophisticated” about these issues
because she was a former television reporter. 1052 Thomas also served on the
Finance Committee with Koocher in 2004. 1053
o Behnke believed that Levant thought “very highly” of Thomas. 1054
Michael Wessells (“Wessells”)
o Behnke remarked that Merry Bullock advocated his being included in the task
force early on and everyone held him in high regard throughout the selection
process. 1055
4.

Overall observations

Several dynamics are apparent in the development of task force nominees from January
through March:
x

APA staff considered the civilian/military split of task force members from the start
of gathering task force nominees. Although the ultimate PENS Task Force was
intentionally weighted in favor of the military and Defense Department (a critical
factor in its outcome), the initial staff-recommended task force members were more
equally divided.
However, things had changed by the February 2005 Board meeting. Prior to the
Board meeting, APA (apparently through Russ Newman) confidentially consulted
with Banks about the language of the actual Board agenda item defining the task
force proposal before the APA Board voted on it, and Banks provided written
comments. At the Board meeting, at which Levant, Koocher, and Newman
participated in the discussion on this item, the Board authorized the creation of the
Task Force but decided not to accept the staff recommendations and instead to solicit
nominations from APA divisions and members.

1050

Koocher interview (Mar. 20, 2015).

1051

HC00008985.

1052

Koocher interview (Mar. 20, 2015).

1053

Treasurer’s Report, APA Annual Report, 2004, available at
https://www.apa.org/pubs/info/reports/2004-treasurer-report.pdf.
1054

Behnke interview (May 22, 2015).

1055

Id.

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Almost immediately thereafter, Dunivin intervened in the process, insisting to Levant
and Behnke that Banks must be included in the task force, and that the composition of
the task force was “critical to accomplishing its mission.” Dunivin then delivered a
strongly-worded letter to Behnke the day before the March 2005 meeting of the task
force selection committee (Levant, Koocher, Anton, and Behnke), in which she
identified all but one of the six DoD members initially chosen for the task force.
Despite the fact that the vast majority of nominations APA received for the task force
were people who had no affiliation with the military or government, the ultimate
breakdown was 6-3 in favor of DoD psychologists and one non-voting non-DoD
chair. Some APA officials and staff involved in the selection process claim that the
ultimate breakdown between military and non-military members ignores the diversity
within the DoD members of the task force. But there is no documented discussion in
the first part of 2005 about the diversity of the DoD members. On the contrary,
Behnke’s handwritten notes indicate he grouped all of the DoD members together in
his categorization of potential task force members.
x

These importantly-timed and confidential consultations with Banks and Dunivin
appear to have been unique—we did not find evidence of APA having similar
consultations with other individuals or constituencies. And they were highly
influential.

x

While some APA officials and staff involved in the selection process claim that the 64 majority did not matter because the eventual report was a “consensus document,”
the discussions in the first part of 2005 indicate an awareness and importance about
members who could vote. The consensus argument made today appears to be a posthoc response to the critique about the composition of the task force and, as seen
below, was not an argument raised at the time when this criticism first arose. In
short, it would have been clear to everyone involved in early 2005 that selecting six
voting, DoD members would be a dominant voting bloc within the task force, and
would send a very strong positive message to DoD about APA’s support.
E.

Task force Members Announced and Concerns Arise: April 2005

By April 8, 2005, all 10 task force members had formally accepted a position to serve on
the Presidential Task Force on Ethics and National Security (“PENS”) task force. 1056 On April
1056

APA_0024560. Wessells was the last person to accept since he was out of the country during much
of this period. The task force was originally called the “Presidential Task Force to Explore the Ethical
Aspects of Psychologists’ Involvement and the Use of Psychology in National Security-Related
Investigations.” It is not clear when exactly the task force’s name was ultimately shortened to the PENS
Task Force. Nomination emails for the task force sometimes referred to the group as the “task force on
ethics and national security,” and sometimes as the task force on “national security-related
investigations.” Behnke’s emails after the selection meeting to task force selectees referred to the “task
force on ethics and national security,” suggesting that the name was finalized near or during the selection
meeting. Behnke also informed APA’s IT Department on March 29, after being told of character
limitations on creating a new listserv, that the name of the listserv was titled “Psychological Ethics and

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19, Behnke emailed all task force members to inform them that APA would publicize their
names to the Council and that Council members could share that information as they wished.
Behnke also noted that members would receive a packet of background reading materials and
that a PENS Task Force listserv was forthcoming. 1057
Each task force member received background materials that totaled nearly 500 pages. 1058
The readings included ethical codes for other professional organizations, relevant United Nations
and World Medical Association declarations, court cases, academic articles, and news reports, all
of which appeared to comprehensively cover the relevant issues for the task force. Several of the
materials described specific interrogation techniques that were used at the time and the
controversy surrounding them, for example: (1) Bloche and Mark’s articles that mentioned
sensory and sleep deprivation and stress positions; 1059 (2) Washington Times and Boston Globe
articles that described the conflict between NCIS and the DoD over harsh interrogation
techniques (the Washington Times article also alluded to waterboarding) and the DoD’s revised
categories of approved interrogation techniques; 1060 (3) a Lancet article that described the abuses

National Security,” and that the full task force name was the “Presidential Task Force on Psychological
Ethics and National Security.” See APA_0048355.
1057

APA_0025245. Fein separately responded to Behnke on April 14, 2005 and noted that he wanted to
discuss “the composition of the group.” APA_0037968. The two scheduled a telephone call thereafter.
Neither Fein nor Behnke could recall the substance of this exchange. Fein interview (May 11, 2015);
Behnke interview (May 22, 2015).
1058

The full set of background materials are not included in this report’s appendix. Instead, the table of
contents and any materials cited above are fully attached. See HC00005567.
1059

Gregg Bloche & Jonathan Marks, Doctor’s Orders – Spill Your Guts, Los Angeles. Times (Jan. 09.
2005), available at http://articles.latimes.com/2005/jan/09/opinion/op-brutality9; Gregg Bloche &
Jonathan Marks, When Doctors Go to War, New England Journal of Medicine (Jan. 6, 2005), available at
http://www.nejm.org/doi/full/10.1056/NEJMp048346).
1060

HC00005567, Tabs 17, 25, & 26. Outside of these background materials, the use of waterboarding
was well-covered in the media. One of earliest media reports about waterboarding detainees was June
2004. A New York Times article from June 2004 about the 9/11 Commission Report included unnamed
senior officials stating that Khalid Sheikh Mohammed was waterboarded—“a technique in which his head
was pushed under water and he was made to believe that he might drown.” David Johnston & Don Van
Natta, Jr., Threats and Responses: The Interrogations; Account of Plot Sets off Debate Over Credibility,
New York Times (June 17, 2004), available at http://www.nytimes.com/2004/06/17/world/threatsresponses-interrogations-account-plot-sets-off-debate-over-credibility.html. Three days later, Newsweek
published an article that noted the approved use of waterboarding on Abu Zubaydah in the context of
John Yoo’s 2002 DOJ memo on accepted interrogation techniques. Newsweek described the technique as
“dripping water into a wet cloth over a suspect's face, which can feel like drowning.” John Barry, A
Tortured Debate, Newsweek (June 20, 2004), available at http://www.newsweek.com/tortured-debate128593. By March 2005, then-CIA Director Porter Goss was questioned about waterboarding at a
congressional hearing by Senator McCain. Douglas Jehl, Questions Are Left by C.I.A. Chief on the Use of
Torture, New York Times (March 18, 2005), available
at http://www.nytimes.com/2005/03/18/politics/questions-are-left-by-cia-chief-on-the-use-of-torture.html.
In April 2005, New York Times columnist Bob Herbert declared that “’euphemisms like . . .

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at Abu Ghraib with an overview of the harsh tactics used against prisoners; 1061 (4) a transcript of
an interview with Neil Lewis in which he described the FBI’s concerns with the abusive methods
being used at Guantanamo Bay; 1062 and (5) the Istanbul Protocol, which outlined specific torture
techniques more broadly and how one could identify the signs of each. 1063
APA publicized the task force member names within APA in at least two ways. Council
was given a list of the PENS Task Force members along with their biographies over email on
April 26, 2005, and APA’s Science Policy Insider News, an electronic publication of the Science
Directorate, released the names of the task force members in its May 20, 2005 issue. 1064 Several
APA Divisions, either through their Council representatives or representatives from other
Divisions, received the names of the task force members. Division 48 (Peace Psychology)
posted the names and biographies of the task force members on its website on May 5, 2005. 1065
Linda Woolf, then-President of Division 48, informed Sidley that no one at APA ever asked that
the Division remove this information. 1066 However, when the PENS report was released, no
names of task force members were listed, apparently due to sensitivities from some of the
members. 1067
By April 27, 2005, the day after the Council received the task force member names, APA
had already received two written expressions of concern over the number of DoD members on
the task force. First, on the Committee for the Advancement of Professional Practice listserv,
David Hess stated that the PENS task force members were an “interesting array of individuals”
but “wondered about conflicts in interest. Some of these individuals appear to be in security
positions within government.” 1068 Behnke forwarded the message to Levant and noted that he
would like to “nip” the conflict of interest point “in the bud.” Behnke explained to Levant the
importance of having a task force with “first-hand knowledge of what psychologists are actually

waterboarding are now widely understood.” Bob Herbert, On Abu Ghraib, the Big Shots Walk, New
York Times (April 28, 2005), available at http://www.nytimes.com/2005/04/28/opinion/on-abu-ghraibthe-big-shots-walk.html.
1061

HC00005567, Tab 22.

1062

HC00005567, Tab 23.

1063

HC00005567, Tab 36 (table of contents only).

1064

Council listserv email (Apr. 26, 2005); SPIN listserv email (May 20, 2005).

1065

The webpage still exists today. See Members’ Biographical Statements, American Psychological
Association Presidential Task Force on Psychological Ethics and National Security (May 5, 2005)
available at https://www.clarku.edu/peacepsychology/tfpens.html.
1066

Woolf interviews (Mar. 26, 2015 & Mar. 31, 2015).

1067

APA_0040386.

1068

APA_0844437.

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doing; the Task Force could not fulfill its charge without a solid grasp of what roles
psychologists take in national security-related activities.” 1069
Separately, Division 32 member Marsha Hammond submitted an inquiry via the “Ask the
President” email address raising the same point:
It’s an interesting bunch of people. All appear well qualified. However, this
caveat would be in order, I believe: Out of the TEN members of the committee,
six are employed / associated with, per their bios, by the Armed Services. While
this could be argued to be appropriate in terms of information gathering – and
indeed essential, their vested interest in the outcome cannot be discarded.
Moreover, they outnumber the others. It seems to me that unless the REAL
agenda is to white wash the behavior of mental health specialists in the Armed
Services re: torture and associated practices, APA would have chosen 4 or 5
Armed Services-related people. I'd like to think otherwise, but frankly that would
be to stupidly dismiss the arm-twisting tactics of Bush's administration and what
people are ‘encouraged’ to do in terms of what they say. 1070
Behnke forwarded Hammond’s email to Farberman, Newman, Gilfoyle, and ChildressBeatty, explaining that this was the second message that raised a conflict of interest issue
regarding the composition of the PENS Task Force, and he suggested a draft response. 1071
Behnke ultimately sent Hammond a reply on May 5, 2005 that underscored the importance of
having DoD members and the lack of an investigatory role for the task force. It read in part:
[I]t is very important for this task force to include individuals who know what role
psychologists are asked to assume in national security-related activities. Such
information is absolutely essential for the Task Force to do[their] work . . . much
in the same way a group revising the Standards for Educational and Psychologist
Testing would need Division 5 and school psychologists as important
contributors.
You voice a concern about possible conflicts of interest. I would like to clarify
that the Task Force does not have an investigatory or adjudicatory function or
role. . . . Please note that according to APA Bylaws, the APA Ethics Committee is
charged with conducting investigations and adjudicating ethics complaints. 1072
Hess’s and Hammond’s notes were the first of many complaints lodged against APA about the
composition of the PENS task force in the days, months, and years ahead.

1069

Id.

1070

APA_0047793.

1071

Id.

1072

APA_0047772.

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PENS LISTSERV AND RELATED DISCUSSIONS

The PENS listserv emails spanned from April 2005 to June 2006.1073 The description of
messages and notes below highlight noteworthy correspondence leading up to the PENS Task
Force meetings in late June 2005. The full set of listserv emails are appended to this report.
A.

Listserv begins: Gelles’s Opening Thoughts, Behnke’s Handling of MooreheadSlaughter, Tensions between Gelles and Shumate

Moorehead-Slaughter formally accepted her position as the PENS task force chair on
April 5, 2005. 1074 She had been discussed as the possible PENS Task Force chair as early as
January 2005 when Kelly, Mumford, and Behnke compiled their early lists of task force
candidates. 1075 In her interview with Sidley, Moorehead-Slaughter surmised that, despite her
lack of national security experience, she was appointed as chair because of her ethics background
(she was Vice-Chair and incoming-Chair of the Ethics Committee during that time) and her
facilitation skills. 1076 Behnke commented that her and Moorehead-Slaughter had many of the
same views on the task force and would often discuss them over the telephone or email as the
PENS Task Force listserv and meetings proceeded. 1077
Behnke sent out the first email on the listserv on April 22, 2005, informing the group that
the listserv was “hidden” in order to provide an “extra layer of security” for task force
matters. 1078
Gelles was the first task force member who offered substantive thoughts on the listserv.
An email he sent to Behnke was forwarded to the entire group on April 23, in which Gelles
commented on the role of psychologists in interrogation settings in upcoming DoD policy
revisions. 1079 Gelles’s position here, which remained consistent through the PENS process, was
that psychologists should never conduct interrogations and should, instead, consult with the
interrogators only. He expanded on his thoughts on May 5, at the prompting of MooreheadSlaughter, offering a seven-point overview of his approach. 1080 Gelles repeatedly noted the need
for psychologists to “stay in your lane” and not take on roles they were not trained to do. Gelles
also called for the need to separate operational consultants from health care providers and noted
1073

See generally PENS Listserv, available at
http://s3.amazonaws.com/propublica/assets/docs/pens_listserv.pdf. There is one additional email on the
PENS listserv from November 11, 2008 from PENS members Arrigo and Wessells re: the PENS process.
The email was sent to multiple listservs, however, and is not a PENS-only correspondence.
1074

APA_0038313.

1075

See, e.g., APA_0023209.

1076

Moorehead-Slaughter interview (Apr. 20, 2015).

1077

Behnke interviews (May 22, 2015 & May 29, 2015).

1078

PENS listserv (Apr. 22, 2005).

1079

PENS listserv (Apr. 23, 2005).

1080

PENS listserv (May 5, 2005).

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that the government or agency was the client, not the detainee. 1081 Much of Gelles’s views were
educated by his experience in law enforcement; as he told Sidley, his approach during his time at
Guantanamo Bay was trying to make criminal cases that his team could bring to a United States
court. 1082
Several points of interest emanate from Gelles’s opening remarks. First, Gelles and
others’ comments on the listserv, save for Arrigo, do not broadly question the utility of
psychologists in interrogation settings. Instead, members discussed how best to use
psychologists and who the “client” was in interrogation settings. Those who opined on the client
question all stated that the government was the client. 1083 There was more differentiation with
DoD members on how best to use psychologists—Gelles took an absolutist position, believing
psychologists should not be the “strategic decision makers” in an interrogation, 1084 while others
like Banks and James thought that psychologists could help on the strategic side depending on
the circumstances. 1085
Second, Moorehead-Slaughter’s message to Gelles inquiring for additional thoughts was
prompted by an email from Behnke to Moorehead-Slaughter. In it, Behnke suggested to probe
Gelles’s thoughts further to spur discussion across the task force participants. 1086 But this
message was only the first several other missives and suggestions Behnke sent MooreheadSlaughter during PENS. In fact, Behnke drafted or outlined nearly every correspondence
Moorehead-Slaughter sent over the PENS listserv, offered an outline of comments and analysis
ahead of the PENS meetings, and provided her talking points after the report received criticism
from inside and outside of the task force. He also drafted or reviewed nearly every message
Moorehead-Slaughter sent to Koocher, Anton, or Levant about the task force outside of the
listserv. Moorehead-Slaughter, in turn would dutifully send Behnke’s talking points or
statements with little, if any, of her own edits. On May 5, after Behnke had sent MooreheadSlaughter a draft note on Gelles’s latest remarks, she thanked Behnke and stated that “[y]our
thinking and mine are along similar lines. Having your feedback/response is helpful.” 1087
Both Moorehead-Slaughter and Behnke confirmed that Behnke drafted and provided
guidance to Moorehead-Slaughter during the PENS process to facilitate discussion. 1088
Moorehead-Slaughter added that it was Behnke’s modus operandi in other task forces to write
draft statements for others to post on listservs. 1089 Several PENS interviewees indicated that
Moorehead-Slaughter acted more as a facilitator and offered little substantive thoughts on the
1081

Id.

1082

Gelles interview (Apr. 15, 2005).

1083

See, e.g, PENS listserv at Koocher (May 6, 2005) & Banks (May 11, 2005).

1084

PENS listserv (May 18, 2005).

1085

See PENS listserv at James (May 18, 2005) & Banks (May 19, 2005).

1086

APA_0542728.

1087

APA_0511430 (May 4, 2005).

1088

Moorehead-Slaughter interview (Apr. 20, 2015); Behnke interview (May 22, 2015 & May 29, 2015).

1089

Moorehead-Slaughter interview (Apr. 20, 2015).

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discussions. Others opined that she appeared outside of her expertise area. Behnke’s staunch
handling of Moorehead-Slaughter’s communications, coupled with Moorehead-Slaughter’s lack
of experience in national security issues, signal that Moorehead-Slaughter was used primarily as
Behnke’s agent during the PENS process.
A third issue Gelles’s comments raised was the tensions he had with task force member
Scott Shumate. After his initial email in April, Kelly separately inquired to Shumate about
whether Gelles was supposed to have disclosed details of a new DoD policy already. Shumate
said he should not have and that Gelles “really gets [his] goat" and that “his ego is out of
bounds.” Notably, he alluded to an APA ethics complaint against Gelles before September 11
and implied that APA closed the case after September 11 so as not to be perceived as taking an
anti-government position. 1090 He noted that Melvin Gravitz conveyed this message to APA.
More about the Gelles ethics complaint is discussed in later in this report. Shumate later
forwarded another exchange between Gelles and Shumate from April 28 regarding a
conversation the two had about CIFA and NCIS working together, which indicated the two had a
close relationship together before but had suspicions of one another now. 1091 Gelles told Sidley
that Shumate was one of his best friends and of the finest operational psychologists during this
time, but the two had grown apart after Shumate shifted from the CIA to CIFA. 1092 The
exchanges illustrate that not all the DoD task members were as friendly with one another despite
their similar experiences.
B.

Banks and Others Weigh-In, Arrigo Raises Issues, Koocher-Arrigo Exchanges:
May 2005

Behnke encouraged Moorehead-Slaughter to bring Banks into the discussion of
organizational clients and ethical obligations on May 10. 1093 Moorehead-Slaughter did so on
May 11 on the listserv, and Banks offered his thoughts.
In his first message to the group, Banks attached Army Regulation 190-8, which provides
all DoD personnel guidance on the treatment of “Enemy Prisoners of War, Retained Personnel,
Civilian Internees, and Other Detainees.” 1094 Banks declared that the group should focus on
what types of actions may be legal but unethical as part of their discussions; this was not
ultimately fleshed out in the final report. Banks also quoted from a draft BSCT policy he was

1090

APA_0129871.

1091

APA_0129869.

1092

Gelles interview (Apr. 15, 2015).

1093

APA_0047737.

1094

Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees, Departments
of the Army, the Navy, the Air Force, and the Marine Corps (Oct. 1, 1997), available at
http://www.apd.army.mil/pdffiles/r190_8.pdf. Banks admitted that the Secretary of Defense’s early
declaration that the Geneva Conventions did not apply to detainees would have trumped 190-8. But by
the time the PENS process had started, Banks believed that everyone at DoD agreed that 190-8 applied.
He had directed his teams to follow 190-8 from the beginning of his involvement with the War on Terror
after September 11. Banks interview (May 21, 2015).

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crafting during this time; he brought copies of this draft policy to the PENS meetings. 1095 As
discussed, the draft policy was called “Providing Psychological Support for Interrogations”
(“PPSI”). Banks confirmed with Sidley that he was still forming his policy positions at the time
and was articulating them over the listserv. 1096 He explained that him and Dunivin first began
crafting the PPSI while they were both in Guantanamo Bay in the fall of 2004 and that the draft
was still new during the PENS process. 1097 Banks later distributed copies of these draft
instructions during the PENS meetings and asked that it remain confidential so that the document
was not construed as official Army policy at the time. 1098 Banks asserted that he spearheaded the
PPSI and no one from DoD or the U.S. government pushed him to draft the document. 1099 While
this may be true, the draft PPSI and Banks’s views on these issues held enormous influence on
subsequent policy pronouncements from the Army Surgeon General, as discussed later in this
section.
Arrigo also sent a message on May 11 questioning, among other issues, the effectiveness
of ethical safeguards in national security settings. As Arrigo wrote:
Societal response is a natural check on the behavior of professionals . . . . In many
domains of national security, psychologists cannot both be effective employees
AND be subject to independent ethics review. Yet without independent ethics
review, there is no way to distinguish between (a) justifiable moral trade-offs for
national security gains and (b) deluded, incompetent, or self-interested
behavior. . . I think a foundational question for PENS is whether outside
accountability CAN be designed into the national security positions of
psychologists whose effectiveness depends on secrecy. 1100
Arrigo most vocally questioned the group’s mission and scope before, during, and after
the PENS meetings. She inquired whether psychologists had proper ethical safeguards in
national security settings, sought additional information about the composition of BSCT teams,
and protested the level of secrecy during and after the PENS meetings.
Arrigo also clashed with several members and observers of the task force, most notably
Koocher. At nearly every turn on the listserv and during the PENS meetings, Koocher retorted
many of Arrigo’s claims, requests, and observations. To Arrigo’s May 11 message, Koocher
responded in part that he rejected the “foundational premise” of Arrigo’s assertions and that
thought Arrigo’s “societal response” was an “illusory concept of little pragmatic utility in the
long run.” 1101 Koocher’s responses were starker given that he was a Board liaison and not an
official task force member. There was no evidence we found, however, that suggested Koocher
1095

PENS listserv (May 11, 2005).

1096

Banks interview (May 21, 2015).

1097

Id.

1098

Banks interview (May 21, 2005).

1099

Id.

1100

PENS listserv (May 11, 2005).

1101

Id.

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coordinated his challenges to Arrigo with Behnke or anyone else associated with the task force,
save for a response he made about the casebook project (discussed below). Otherwise, it appears
Koocher acted on his own accord. Koocher told Sidley that he acted as an enforcer against many
of Arrigo’s thoughts, which aimed to broaden the scope of the task force’s mission. To Koocher,
it was important to narrow the actions of the task force since a report was needed at the end of
the weekend of the meetings, especially to combat press reports critical of psychologists in
interrogation settings. 1102
The Geneva Conventions and conflicts between law and ethics were discussed on the
listserv as well. James first emailed the group on May 12 and recounted some of his experiences
at reducing abuses at Abu Ghraib; he underscored the need to abide by the Geneva
Conventions. 1103 Thomas first emailed the group on May 13 and inquired about the guidance the
group could provide in cases where the law and ethics were “incongruent.” 1104 Koocher built off
Thomas’s point by explicitly mentioning the concern with the OLC memoranda and its
definitions of torture, likely a reference to the leaked OLC memos in 2004. 1105 Gelles also
suggested on May 18 that the Geneva Conventions may be a “good place to start.” 1106 Despite
these listserv discussions, the PENS report does not fully embrace international legal standards.
The report instead encourages psychologists to review the Geneva Conventions and the U.N.
Convention Against Torture in order to perform ethically and to analyze when there might be a
conflict between the law and ethics, 1107 but does not specifically define when those conflicts
arise (by not defining “torture” in the document, for example, Koocher’s concern here is never
fully addressed). More on the views surrounding international law are discussed below in a
summary of the first day of the PENS meetings.
Fein emailed the group for the first time on May 18 and posted a hypothetical scenario
involving a psychologist who is aware of unethical activities of another psychologist. 1108 Fein
was not an active participant on the listserv and offered few comments during the PENS
meetings. Arrigo noted to Sidley that Fein contacted Arrigo in January 2005 about providing
relevant articles for a class he was teaching at Harvard at the time and suggested she could also
receive a paid consulting job if she was interested in contributing to his work on interrogation
research in Educing Information. 1109 Arrigo speculated that Fein was trying to “screen” her into
1102

Koocher interview (June 12, 2015).

1103

PENS listserv (May 12, 2005).

1104

PENS listserv (May 13, 2005).

1105

PENS listserv (May 14, 2005).

1106

PENS listserv (May 18, 2005).

1107

PENS Report, available at http://www.apa.org/pubs/info/reports/pens.pdf.

1108

PENS listserv (May 18, 2005).

1109

Arrigo interview (Apr. 27, 2015). Fein joined the Board of the Intelligence Science Board in 2003.
Chartered in August 2002, the Intelligence Science Board advised the Office of the Director of National
Intelligence and the Intelligence Community on advances in science and technology applicable to issues
of importance to the Intelligence Community. The Board was composed of approximately twenty-five
scientists from a range of disciplines, including physical sciences, information technology and policy, and
the law. Fein proposed that the Board develop scientific knowledge on interrogations. Fein chaired the

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being placed on the PENS Task Force. People may have thought that Arrigo was an “easy
mark,” she continued to tell Sidley. 1110 Fein told Sidley that he and Arrigo did talk in January
2005 and that Arrigo’s recollection of its substance was seemed accurate. 1111 But Fein stated
that he was not thinking of the PENS Task Force and that no one directed him to reach out to
Arrigo at that time. Based on other emails as well, it appears that Fein was not aware of the
PENS Task Force until after this conversation with Arrigo. As noted earlier, Robert Kinscherff
raised Fein’s name to Behnke in mid-February, and Fein emailed Behnke on March 1, 2005
asking whether it was too late to submit his name for consideration on the task force. Fein noted
that Shumate had encouraged him to apply for a position. 1112
After Arrigo called Moorehead-Slaughter and others to clarify the scope of the June
PENS meetings, Behnke and Moorehead-Slaughter exchanged emails separately on May 18
about the need to determine what could reasonably be done during the PENS meetings. They
planned to discuss these issues further at a previously-scheduled meeting later in June. 1113
On May 19, Banks used the term “safe, legal, ethical, and effective” to describe his
framework for thinking about psychologists’ proper roles in interrogation settings. 1114 This
phraseology appeared in Banks’s PPSI and, as mentioned, ultimately undergirded the PENS
report and subsequent DoD policy on this issue. Banks added that the group “should focus on
the ethical left and right limits of particular types of psychology support, e.g., interrogation
support.” 1115
Arrigo offered a draft set of questions for the task force meetings on May 22. 1116 She
included the following questions: “Should APA declare the contribution of psychologists to
coercive interrogation incompatible with the ethical obligations of the profession?” and “Should
APA exclude from membership psychologists who intentionally or negligently contribute to
coercive interrogation?”1117 Koocher refuted Arrigo’s call to exclude members: “This question

group, and developed a small team, which included Shumate and Gelles, to review the literature on
interrogations and discuss the current state of knowledge with members of the Intelligence Community,
the military, and law enforcement. In 2006, Fein’s team produced the book Educing Information to
encapsulate the then-current body of knowledge relating to interrogations. In 2009, Fein produced a
follow-up report that drew clearer lines between coercive and non-coercive interrogation techniques from
a science-based perspective. In 2010, the Intelligence Science Board was disbanded.
1110

Arrigo interview (Apr. 27, 2015).

1111

Fein interview (May 11, 2005).

1112

APA_0035712.

1113

APA_0047588.

1114

PENS listserv (May 19, 2005).

1115

Id.

1116

PENS listserv (May 22, 2005).

1117

Id.

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seems naive since APA will likely never know about such conduct, nor be in a position to
investigate it.” 1118 Koocher offered additional thoughts to Arrigo’s first question, however,
about the types of questions to ask about coercive interrogations, none of which were included in
the PENS report. 1119 Koocher later told Sidley that the task force’s mission was narrow, 1120 but
his earlier listserv comments suggested that he was asking broader questions that were
unanswered by the time of the PENS meetings.
Arrigo and Banks exchanged messages related to questions Arrigo had about what
current roles psychologists played in interrogation settings. At one point, Arrigo directly posed
to Banks whether there was a “natural crossover from SERE training to coercive
interrogation,” 1121 which was precisely what Mitchell and Jessen executed during their
interrogation work with the CIA. Banks did not address whether this “crossover” had occurred
and instead underscored that purpose of SERE training and the purpose of interrogations were
“diamet[r]ically opposed” to one another. 1122
C.

Observers Considered, Newman’s Conflict of Interest, Choosing “Safe, Legal,
Ethical, and Effective”: June 2005
1.

Task force observers

Task force observers were discussed on the listserv in June 2005, though the topic had
been discussed internally at APA as early as April 2005. Mumford had raised the possibility in
early April of adding Brandon as an observer. 1123 Along with her science background, Mumford
noted that “politically it would be helpful/smart to have a White House observer.” 1124 In late
April, APA Senior Policy Advisor Ellen Garrison also mentioned that Jeff McIntyre, then-Senior
Legislative and Federal Affairs Officer at APA, was interested in sitting-in on the meetings. 1125
McIntyre was ultimately accepted as an observer but, as he told Sidley, chose not to participate
after he was told he could not speak, could not take any documents with him, and would be
bound by certain rules of confidentiality. 1126
Observers were discussed earnestly in early June 2005. Behnke sent an email on June 1
to Koocher, Anton, and Moorehead-Slaughter informing them that staff had a question about
1118

PENS listserv (May 23, 2005).

1119

Id.

1120

Koocher interview (May 19, 2005).

1121

PENS listserv (May 23, 2005).

1122

Id.

1123

APA_0024572.

1124

Id.

1125

APA_0025884.

1126

McIntyre interview (Jan. 20, 2015). It appeared that McIntyre did not notify either Kelly or Behnke
that he planned to skip the meeting; Kelly speculated to Behnke that McIntyre’s ego may have been a
factor. See APA_0040763.

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whether observers were permitted. 1127 Behnke stated that some APA staff were interested in
attending and that the group should consider inviting “non-staff” like Brandon and
representatives from the FBI. 1128 Levant agreed with Behnke. 1129 Anton agreed to include APA
observers who had a “direct interest” in the task force, and to invite “selected observers” from
outside APA. 1130 Koocher also agreed and offered the most full-throated support for outside
observers from the FBI or CIA. 1131
After receiving their blessings, Behnke emailed Kelly, Breckler, and Mumford about how
they could proceed. Behnke outlined five different options; the group ultimately chose a
combination of the first and fifth options:
1) Ask the Task Force members themselves whom they would suggest including
as observers;
2) Identify particular groups and invite them to send observers;
3) Send a letter around to all the Divisions and State Psych. Associations, inviting
those groups to send observers;
4) Invite anyone who was nominated to attend as an observer;
5) Keep to our original plan, and identify particular people whom we would like
to invite.
We should be mindful that if we really open this up we may get LOTS of
people. . . Thoughts? 1132
On June 3, 2005, Moorehead-Slaughter requested whether the PENS Task Force had any
suggestions on observers. 1133 A mere 20 minutes after her message, Anton suggested Newman
as an observer. Banks affirmed Anton’s suggestion 10 minutes later and Moorehead-Slaughter
confirmed Newman’s selection ninety minutes thereafter. 1134 Newman’s marriage to Dunivin
was not disclosed on the listserv. While many of the DoD members knew of Newman’s
1127

APA_0048842. Notably, Behnke’s message predated a June 2 message from Arrigo on the listserv
that called for an advance agenda. Sidley found no evidence that the suggestion of observers was
precipitated by Arrigo’s call for specific agenda items ahead of the PENS meeting.
1128

Id.

1129

APA_0027161.

1130

APA_0027619.

1131

APA_0030186. Koocher wrote: “In thinking about the PENS task force, I would encourage us to be
open and even to invite observers (e.g., FBI and CIA psychologists). Why? The presence of such people
can only improve the outcome. They may or may not chime in with perspectives hypothetical situations,
etc. However, I have no doubt that they will hear thoughtful, well reasoned, constructive efforts on how to
guide our colleagues in difficult situations. Since out task force is not authorized to have access to
identifiable ethics case materials and we certainly only have access to public policy documents, press
accounts, etc., it seems to me that inviting interested others does no harm and may do good (i.e., enrich
the discussion, suggest helpful directions, defuse anxieties, etc.).”
1132

APA_0027161.

1133

PENS listserv (June 3, 2005).

1134

Id.

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relationship with Dunivin, none of the non-DoD members told Sidley that they did. Newman’s
role on the task force proved consequential and is discussed later in this section.
Later on June 3, James separately raised issues that an open meeting would have on the
safety and confidentiality of the PENS meetings. 1135 Though he was fine with Newman
attending, James requested that he “know who will attend, why, which group he/she will
represent before anyone else attends.” Behnke drafted Moorehead-Slaughter’s response to
James, which stated that the “parties in the room will be ‘known entities,’ who have been
approved to be there.” 1136 Both of these episodes are discussed in greater detail in other parts of
this report.
The only other outside observer discussed and approved on the PENS listserv was Melvin
Gravitz , long-time APA member and CIA contractor/psychologist (and sometimes called the
“father of operational psychology”). Gelles suggested Gravitz on June 6. 1137 Gelles told Sidley
that Gravitz was his closest mentor; he thought he volunteered Gravitz without suggestions from
others involved with or on the task force. 1138 Behnke did, however, send Moorehead-Slaughter a
note after Gelles recommended Gravitz, and stated that he was an “excellent choice,” and that
Moorehead-Slaughter should ask Gelles to expound upon Gravitz’s background. 1139 Gravitz was
approved as an observer shortly thereafter. Our investigation uncovered that Gravitz had played
an important role inside the CIA in clearing the way for CIA contract psychologist Jim Mitchell
to continue participating in CIA interrogations in 2003 after some within the CIA protested that
his work was unethical, and had also attempted to influence an APA 2002 disciplinary
proceeding against Michael Gelles. 1140

1135

Id.

1136

APA_0508264; see also PENS listserv (June 3, 2005).

1137

PENS listserv (June 6, 2005).

1138

Gelles interviews (Apr. 15, 2015 & May 27, 2015).

1139

APA_0048809 (June 6, 2005).

1140

In 2003, in response to an internal dispute within the CIA about whether it was ethical for CIA
contract psychologist Jim Mitchell to continue to participate in interrogations, Gravitz provided a written
ethics opinion to Mitchell and the CIA in which he concluded that the APA Ethics Code should be
“flexibly” interpreted and important weight given to the “ethical obligation” to protect the nation from
harm. As a result of Gravitz’s opinion, we were informed, Mitchell was able to continue his participation
in the interrogation program. We also learned that in 2002, when Gelles was being investigated by the
Ethics Office for a disciplinary complaint (as has been publicly reported) relating to his interaction with a
soldier under criminal investigation for espionage, Gravitz made a point of speaking to Behnke about the
case and warning him that action against Gelles could harm national security. Behnke said that this had
no effect on him, but he later took over the investigation from the assigned investigator (who strongly
believed that Gelles had committed an ethical violation) in an unusual fashion during her temporary
absence, causing the investigator to say that Behnke was manipulating the situation and taking advantage
of her absence. After Behnke’s involvement, the APA Ethics Committee voted unanimously to find no
violation against Gelles. More about this episode is discussed in the report’s section on APA
adjudications.

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Both Gravitz (who was there for days two and three of the meeting) and Newman spoke
during the meeting in ways that supported the military/DoD psychologists. And, as discussed
more below, Newman spoke forcefully about the importance of achieving APA’s PR goals in a
manner that was inconsistent with the efforts by some of the non-DoD psychologists to push for
stricter, more specific ethical guidelines.
Other APA employees were present at the meeting, but were not formally approved on
the listserv—Anton, Breckler, Brandon, Farberman, 1141 Kelly, Koocher, Mumford, and APA
Office Manager Rhea Jacobson.
2.

Newman’s conflict of interest

Newman had an obvious conflict of interest, since his wife was highly interested in the
outcome of this policy decision by APA, and was one of the DoD psychologists who would be
most affected, positively or negatively, by the ethical position about which APA was supposed to
be deliberating.
Newman told Sidley that he believed Anton may have conversed with him before his
listserv nomination about serving on the task force due to Newman’s interest in practice issues
that would arise during the meetings. 1142 Anton told Sidley that he thought someone encouraged
him to nominate Newman for the task force but could not recall who it was; he speculated that
Moorehead-Slaughter or Behnke may have spoken with him. 1143 Anton reflected that he could
see how Dunivin might have suggested to Banks that he second Anton’s suggestion since the
nomination was finalized so quickly. These comments suggest that there was some coordinated
effort to have Newman on as a task force observer.
When asked about whether there was a conflict of interest in his observer appointment,
Newman stated that there was not and that “everyone” at APA knew of his relationship with
Dunivin. In addition, Newman stated that his role as an observer was a “specific” one that did
not allow him to vote on any issues, offer comments to the draft reports, or participate in
additional conversations outside of the meetings. Newman expounded that it was important that
the interest he had was represented during the task force. He worried that APA would have
included people with little knowledge of the situation or that people would respond emotionally
to the issues without carefully considering psychologists’ important roles in detainee
interrogation settings. 1144
Anderson admitted that he did not fully think through the implications of Newman’s
presence as an observer at the time but that, in retrospect, Newman’s conflict should have been
explicitly addressed. He stated that no one from APA staff came to him with the conflict issue at
the time, but he thought that Behnke (as Ethics Director), Gilfoyle (as General Counsel), or
1141

Thomas suggested that Farberman be included in discussions, but there was no formal vote/approval
of her presence on the listserv. PENS listserv (June 20, 2005).
1142

Newman interview (Apr. 29, 2015).

1143

Anton interview (May 8, 2015).

1144

Id.

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Newman himself would have been best positioned to raise the conflict issue explicitly with
Anderson. 1145 Honaker said that Newman’s involvement was a “clear conflict” in retrospect, but
that he had assumed that all members of the task force were fully informed about the relationship
and Dunivin’s position at Guantanamo Bay at the time. But he stated that the issue was not as
problematic for him then since Newman did not have a decision-making role on the actual task
force. He agreed that he did not take any steps to raise a question or discuss the issue with
Anderson, the Board, Behnke, or Gilfoyle. 1146
Behnke did not recall how Newman was originally discussed as an observer, but admitted
that, in hindsight, he should have formally disclosed to the task force Newman’s relationship
with Dunivin. 1147 Farberman told Sidley that she was “shocked” to learn of Newman’s presence
at the PENS meetings because of a clear conflict of interest, but she did not recall raising the
issue with anyone at the time. 1148 Gilfoyle, who was not involved in observer selection, also was
surprised to learn of Newman’s involvement during the meetings and suggested that disclosing
Newman’s marriage to Dunivin at the time would have remedied any issues with his presence.
Both Behnke and Gifloyle conveyed to Sidley, however, that if Newman wanted to be apart of
the task force meetings, that he would have been—both because of his strong personality and
because of his prominent position within APA as leading the Practice Directorate. 1149
Behnke also stated that, in general, it was not unusual for the head of the Practice
Directorate to attend meetings and task forces that related to the practice of psychology. And the
conflict may not have been seen as problematic since, Behnke declared to Sidley, the question
the task force was charged to answer was not whether psychologists should be involved in
interrogation settings but how and in under what appropriate circumstances. 1150 Koocher also
confirmed with Sidley that the purpose of PENS was to give ethical guidance to psychologists in
interrogation settings and not to bar them entirely. 1151 If this framework is correct, however,
then it appears APA never seriously questioned whether psychologists should be in detainee
interrogation settings in the first place.
Newman owed a duty of loyalty to APA, which was in the midst of determining its
ethical position on this critical issue. In doing so, APA needed to determine how to balance at
least two important values: the importance of psychologists assisting the government in getting
accurate intelligence information about potential future attacks in order to protect the public, and
1145

Anderson interview (June 23, 2015).

1146

Honaker interview (June 23, 2015).

1147

Behnke interview (May 22, 2015). He also noted that in early January 2005, when Mumford raised
the Dunivin issue to members of APA leadership, it was known that Dunivin was stationed at
Guantanamo Bay but that APA did not have a full understanding of what she was specifically doing at
this time.
1148

Farberman interview (May 19, 2015).

1149

Behnke interview (May 22, 2015); Gilfoyle interview (May 20, 2015).

1150

Behnke interview (May 22, 2015).

1151

Koocher interview (June 12, 2015).

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the importance of psychologists not intentionally “doing harm” to individuals except perhaps
under carefully defined and constrained circumstances (such as helping an FBI agent ask
questions of a Mirandized criminal defendant that might “harm” the defendant in the sense that it
might produce evidence that could result in the defendant’s conviction or a prison sentence). In
determining its position, APA also needed to balance, on the one hand, the views and positions
of military and national security psychologists with, on the other hand, the views and positions of
those outside the military/national security system.
Because of Dunivin’s obvious and strong interest and bias on these points, Newman had
a classic conflict of interest, and it was incumbent upon him and APA to keep him out of the
discussions and deliberations on this topic, and to disclose the conflict. Instead, the opposite
occurred. No disclosure was made; Newman and Dunivin were included at many of the key
points of the process, including the task force selection process and the task force deliberations;
and both Newman and Dunivin inserted themselves and influenced the process and outcome in
important ways. The various APA officials who were aware of the conflict and of all or some of
Newman’s and Dunivin’s involvement—including principally Ethics Director Behnke, APA
President Ron Levant, APA President-Elect Gerald Koocher, and also including to a lesser extent
CEO Norman Anderson, Deputy CEO Michael Honaker, and General Counsel Nathalie
Gilfoyle—took no steps to disclose or resolve the conflict.
3.

Failed observers

There were other potential observers as well. In mid-June 2005, Behnke and Mumford
both unsuccessfully reached out to their FBI contacts who were unavailable during the PENS
meeting dates. Behnke explained the importance of having an FBI representative to Stephen
Band to no avail. 1152 Arrigo suggested that APA legal counsel, an ethicist, and Matt Wynia of
the American Medical Association would be good candidates as observers. MooreheadSlaughter partially addressed Arrigo’s request by responding that APA General Counsel staff
would be readily available but there was no mention of Wynia after Arrigo’s initial
suggestion. 1153
Behnke also failed to add as observers Gregg Bloche and Jonathan Marks. On June 22,
2005, Behnke sent Moorehead-Slaughter, Koocher, and Anton (including other APA leadership)
a summary of upcoming news reports on psychologists in wartime interrogation settings. He
attached Gregg Bloche and Jonathan Marks’s upcoming article in the New England Journal of

1152

APA_0027214; APA_0026254. Behnke wrote: Likewise, Steve [Band], I wish you the very best in
your work. Also, thank you for supporting FBI participation in the Presidential Task Force. I realize the
delicacy of the issues, and appreciate how careful your colleagues must be, but I very much want the FBI
included in this work, if that is possible. (The ‘observer’ role will not require the FBI to sign on or
commit to anything, but will give the FBI a place at the table.) I think it's vitally important for
psychologists in the FBI to feel supported by APA, and conversely, for APA to benefit from the richness
and complexity of the Bureau's work. I'm happy to do anything I can to foster this important
relationship.” APA_0027124.
1153

PENS listserv (June 7, 2005).

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Medicine, “Doctors and Interrogators at Guantanamo Bay.” 1154 The article detailed purported
violations of medical ethics and mental health professionals who helped break-down detainees in
interrogations. Behnke also remarked that the New York Times would publish another Neil Lewis
article tomorrow and that a Jane Mayer article in the New Yorker would follow two weeks
later. 1155 Behnke recommended that the task force invite Bloche and Marks to the PENS
meetings as observers since they were the “most prominent spokespersons” in the “public
arena.” 1156
Behnke recalled to Sidley that Moorehead-Slaughter may have rejected the idea of
inviting Bloche before the PENS meetings, 1157 but Sidley found no evidence of this assertion. In
fact, Moorehead-Slaughter drafted an email for Behnke to review that indicated her support of
inviting Bloche and Marks on June 22. 1158 She later sent this supportive email to the same group
as Behnke’s original email. 1159 Gilfoyle raised issues about making sure the two signed a
confidentiality agreement ahead of their potential attendance, though it does not appear she or
anyone from the legal department rejected Behnke’s suggestion. 1160 Instead, it appears that
Bloche and Marks were ultimately uninvited after the first day of the task force meeting when
DoD members expressed discomfort with having Bloche attend the meeting. Larry James even
threatened to leave the meeting if Bloche was present. 1161 According to Arrigo’s notes from the
PENS meetings, James and Banks criticized Bloche and Marks’s latest article for its accuracy
and publication of John Leso’s name. They worried for Leso and his family’s safety as a
result. 1162
Other media reports were released on the eve of the PENS meetings that covered Bloche
and Marks’s New England Journal of Medicine article. For example, the Wall Street Journal

1154

Gregg Bloche & Jonathan Marks, Doctors and Interrogators at Guantanamo Bay, New England
Journal of Medicine (July 7, 2005), available at http://www.nejm.org/doi/full/10.1056/NEJMp058145.
Bloche had sent Behnke an advance copy of the article. See APA_0041245.

1155

APA_0048661.

1156

Id.

1157

Behnke interview (May 29, 2015).

1158

APA_0048630.

1159

APA_0040912.

1160

APA_0048625.

1161

See Arrigo PENS Meetings Notes, available at http://www.ethicalpsychology.org/materials/ArrigoPENS-Meeting-Notes-Archived-July-2006.pdf. James and Banks had both expressed discomfort in
talking with Bloche in mid-June after Behnke approached both of them about Bloche’s request to speak
with them. See APA_0048755; APA_0048754.
1162

APA_0048594. Later, Behnke incorrectly told Levant that Leso was not an APA member at the time
and therefore the Ethics Committee could not investigate claims related to him. He later apologized for
this mistake to APA leadership. More on APA’s investigation into Leso’s actions are discussed later in
the report.

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had an article on it on June 23 1163 and Neil Lewis published an article on June 24. 1164 Lewis’s
articles included additional interviews with professional organization representatives, including
Behnke. Behnke noted that the task force was meeting over the coming weekend to address the
issues raised in Lewis’s article. 1165 If the issues and abuses at issue were not already clear when
the task force was first created, they certainly were days before the meeting with these various
media reports.
4.

Using “safe, legal, ethical, and effective”

In separate conversations, Behnke impressed upon Moorehead-Slaughter to use Banks’s
framework for the meeting. On June 9, 2005 at 1:48 p.m ET, Behnke sent Moorehead-Slaughter
a note on his preliminary thoughts for a PENS meeting agenda and outline of talking points. 1166
Behnke included the following comment about Banks’s approach:
[On what differentiates ethical and non-ethical behavior in national security-related
activities], Morgan Banks offers a very helpful analysis: Illegal vs. legal, and ethical vs.
unethical. As Morgan points out, our focus should be on defining the “box” of legal and
unethical. . . . In terms of an analytic framework, Morgan Banks offers a succinct analysis
(posting 5/19), in which he states that psychologists’ work should be ‘safe, legal, ethical, and
effective.’ In one way of thinking, parcing [sic] each of these four words and applying them to
psychologists' work in this arena is central to the task. 1167
Coincidentally, Banks sent Sidley a two-page summary document derived from Banks’s
PPSI that included the words “safe, legal, ethical, and effective” at the top of the page and two
ethical queries. 1168 The document’s metadata indicates that it was last saved on June 9, 2005 at
12:58 p.m. ET, less than an hour before Behnke sent his thoughts to Moorehead-Slaughter. The
time stamps suggest that Banks and Behnke may have conferred about these issues before
Behnke sent his message to Moorehead-Slaughter. In interviews with Sidley, Behnke claimed
that Banks’s thoughts were akin to his own analytical approach—what he called a “four-bin
analysis”—and, thus, found it immediately attractive. 1169
On June 10, Behnke sent Moorehead-Slaughter a draft set of her opening remarks for the
first day of the PENS meetings. 1170 One of Behnke’s notes strongly implied that psychologists
1163

Yochi Dreazen, Report Says Pentagon Violated Medical Ethics at Guantanamo, Wall Street Journal
(June 23, 2005), available at http://www.wsj.com/articles/SB111949449838567319.
1164

Neil Lewis, Interrogators Cite Doctors’ Aid at Guantanamo, New York Times (June 24, 2005)
available at
http://query.nytimes.com/gst/fullpage.html?res=9400E2DA1F3BF937A15755C0A9639C8B63.
1165

Id.

1166

APA_0027134.

1167

Id. (emphasis added).

1168

Banks “Ethics Examples” document (on file with Sidley).

1169

Behnke interviews (May 22, 2015 & May 29, 2015).

1170

APA_0048793.

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should be involved in these settings and that it would be far worse if these psychologists moved
away from APA:
If psychologists in communities of professionals working in national security-related
areas do not feel that APA is interested in and supportive of their work, they WILL drift away
from APA. That would be bad for those psychologists, and bad for APA, the profession, and the
public. We want to be clear that psychologists who are using the science and practice of
psychology to protect our nation's security have a home at APA, and that APA welcomes and is
grateful for their contributions to the profession and to our nation. APA wants to be a resource
for these psychologists as they struggle with the ethical dimensions of their work. 1171
Behnke, Moorehead-Slaughter, and Koocher met in Boston on June 16, 2005 to “think
through some of [the] details concerning how to structure the meeting, as well as some of the
larger questions, such as what the Task Force can reasonably be expected to accomplish with this
meeting.” 1172 Thereafter, Behnke drafted an agenda for Moorehead-Slaughter that she sent to the
PENS listserv later on June 16. 1173 The agenda stated that the group should plan to have a report
by the end of the weekend. It also stated that the group needed to identify the “bottom line”
issues; the message specifically noted that the group “will especially want to offer as much
guidance as we can to psychologists, particularly young psychologists, both in ethically
ambiguous situations and in situations where it appears that other psychologists may be acting
unethically.” The message also declared that the “safe, legal, ethical, and effective”analytical
framework provided was “a good way of anchoring ourselves in the ‘bottom line’ questions we
need to address.” 1174
As is discussed later, however, though touted by Banks as a safeguard that would
somehow ensure the humane treatment of detainees, his framework was flexible and general
enough to allow for subjective judgments to be made, including by people such as Banks who
interpreted the formula to permit stress positions and sleep deprivation in some circumstances.
5.

Shumate’s and Mumford’s messages

On June 20, both Lefever and Shumate offered their first substantive messages on the
listserv. 1175 Shumate looked forward to the discussions but cautioned against litigating the past:
I hope I can speak for my colleagues in the Department of Defense that we embrace the
discussions and various viewpoints that will be represented at the table during the next four days.
I look forward to sorting out the ethical guidance that we will recommend to APA while also
being vigilant that we are not there to debate nor confront the past, present nor future policies of
the Administration or the Department. I believe that we can do what is right for psychology
1171

Id.

1172

APA_0039316. Sidley could not locate or collect any notes from this meeting.

1173

APA_0048749; APA_0048750.

1174

Id.; see also PENS listserv (May 16, 2005).

1175

PENS listserv (May 20, 2005).

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while holding reserve on those aspects that we have neither the authority nor the charge to
address. 1176
Shumate was also brought up in a separate internal APA conversation with Behnke,
Kelly, and Anton on June 20. 1177 Anton requested at some point to compile a glossary of terms
for task force distribution based on a New York Times article that Fein forwarded on the PENS
listserv. But issues arose over defining terms like “coercive” and “torture lite,” which may,
based on the article, include techniques that were legal at the time. Kelly flagged the issue first
and suggested reaching out to Shumate, who “confirmed that the military guys on the task force
would have removed themselves if (currently legal) procedures such as interrogation techniques
were defined as cruel and inhuman and equated with torture.” 1178
Also of note, Mumford sent a note to his brother, John, on June 21 where he stated that
the task force was “a complex group of psychologists carefully balanced with equal numbers of
hawks and doves. . . timing couldn't be better as closing Guantanamo Bay seems to be in the
news every day and many of those coming to serve the task force have been there or helped
clean-up after Abu Ghraib.” 1179 Mumford told Sidley he believed the task force was balanced
because of the presence of Gelles, a known whistleblower, and James, someone who helped
quell the abuses at Abu Ghraib. 1180
D.

Overall Observations

Several issues arise in the April – June 2005 listserv discussions that foreshadow the
issues that arise during after the PENS meetings:
x

The behind-the-scenes communications show that Behnke was actively managing the
direction of the discussions on the listserv, in part by drafting emails for the task force
chair (Moorehead-Slaughter), who would then send them to the listserv verbatim, in
which decisions were made or topics suggested. An analysis of her emails on the
listserv shows that virtually all her postings were written by Behnke, which
Moorehead-Slaughter and Behnke conceded to us.

x

Banks and Behnke collaborated behind the scenes about the eventual content of the
Task Force’s report, with the result that the key high-level framework set out in the
then-draft DoD policy (written by Banks and Dunivin and later converted almost
verbatim to official DoD policy) regarding the participation of psychologists in
interrogations was (i) proposed by Banks on the listserv as a good framework for the
Task Force, and then (ii) recommended by Behnke (through Moorehead-Slaughter) as
a good framework for the Task Force. The framework—the interrogation practices

1176

Id.

1177

APA_0040991.

1178

Id.; see also APA_0027098.

1179

APA_0029281(ellipsis in original).

1180

Mumford interview (May 18, 2015).

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must be “safe, legal, ethical and effective”—was touted by Banks as a safeguard that
would somehow ensure the humane treatment of detainees, when in reality it was (as
discussed more later) a malleable, very high-level formula that easily allowed for
subjective judgments to be made, including by people such as Banks who interpreted
the formula to permit stress positions and sleep deprivation in some circumstances.
The evidence shows that minutes before Behnke sent Moorehead-Slaughter a draft
email from his computer laying out the argument for this framework (which she
posted verbatim minutes later), Banks had made the final edits on a document on his
computer highlighting some of the same arguments for the framework (a document
that was then likely shared with Behnke). And the framework became one key
portion of the Task Force’s report.
x

The meeting group was expanded in a careful way by adding two “observers” who
were affiliated with the military and intelligence community. After several days of
internal staff consultation and planning about how to add observers to the task force
meeting, Behnke (through Moorehead-Slaughter) posted an email on the listserv
inviting observer recommendations. In a coordinated fashion, APA Practice
Directorate chief Russ Newman was added as an observer, despite Newman’s conflict
of interest because of his marriage to the Army’s lead interrogation-support
psychologist at Guantanamo. Michael Gelles subsequently recommended long-time
CIA contractor/psychologist Melvin Gravitz, and he was quickly “confirmed” by
Moorehead-Slaughter. As discussed later, both Gravitz and Newman spoke during
the meeting in ways that supported the military/DoD psychologists. And Newman
spoke forcefully about the importance of achieving APA’s PR goals in a manner that
was inconsistent with the efforts by some of the non-DoD psychologists to push for
stricter, more specific ethical guidelines.

x

Efforts by Jean Maria Arrigo to set a broad agenda for the discussion and to ask
whether certain assumptions behind the task force were correct (for instance, whether
it was realistic to create a system of enforceable ethical guidelines for psychologists
operating in a classified environment, since enforcement by a professional association
would likely be impossible), were quickly rebuffed by Koocher in aggressive listserv
posts. This was an intentional effort to curb dissent to the frame of reference APA
had already decided upon—that the task force would issue a report at the end of the
three-day meeting that would conclude that psychologists could ethically support
interrogations, thus pleasing DoD, and that would be written in a manner that would
provide APA with a good media statement to respond to the perceived negative press.

x

There were no serious discussions about whether psychologists should be involved in
interrogation settings (Arrigo tried to raise these issues but Koocher rejected most her
contentions); the conversations instead focused on how psychologists could be
involved. With a majority DoD set of members, along with a sympathetic group of
APA leaders at the helm, it appears that there was never any likelihood that APA was
considering barring psychologists entirely from these interrogation settings.

x

DoD members, however, did have differences of opinion on the best use of
psychologists in these settings and whether psychologists could ever play a more
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direct role in interrogations. Several members appear to show an openness to using
the Geneva Conventions as a guiding principle in outlining what psychologists can do
in interrogation settings, though not necessarily as an ethical requirement as seen
during the PENS meetings.
III.

PENS MEETINGS AND REPORT

The PENS meetings took place on June 24 – June 26, 2005. Task force members initially
met for dinner the evening of June 23. A typed copy of Arrigo’s notes from the meetings
document her impression of the discussions from these in-person meetings. Both the PENS
listserv and a transcribed version of Arrigo’s notes have been publically available, along with the
PENS report itself. In addition, Sidley reviewed contemporaneous notes from Behnke, Susan
Brandon, and an assortment of other task force members from the PENS meetings. 1181 We also
interviewed every member of the task force and and nearly every observer.
The veracity of Arrigo’s set of notes have been questioned by some. But this report can
confirm that Arrigo’s notes provide the most complete picture of what occurred during the
meetings. For one, Arrigo provided us with the contemporaneous, handwritten notes she took
during the PENS meetings, which align with what was transcribed in the typed version of her
notes. In addition, the notes that Behnke and Brandon took on conversations during the meetings
are reflected in Arrigo’s notes, which indicate a consistency and accuracy across all sets of notes.
And every interviewee associated with the PENS process who had seen Arrigo’s notes believed
it plausible that the notes captured much of the discussions over the weekend of meetings. All
sets of notes from Arrigo, Behnke, and Brandon are appended to this report. The following
subsections highlighting noteworthy comments during the in-person meetings rely primarily on
Arrigo’s notes from these meetings and interviews with Sidley.
A.

Overall Impressions of Task Force Members
1.

DoD Task Force members

Of the six DoD task force members, Banks and Scott Shumate appeared to have the most
prominent positions within DoD. And Banks, far more than Shumate it appears, worked
integrally on interrogation support issues. As Command Psychologist for the Army Special
Operations Command and the senior Army SERE psychologist, Banks worked closely with and
was involved with the Army psychologists at Guantanamo Bay and elsewhere who supported
interrogations, including Dunivin. Banks came into the task force with a concrete idea of what
the task force report should say and should not say, as he and Dunivin had already drafted what
would become Army (and therefore DoD) policy regarding the details and limitations on using
psychologists in interrogations, a confidential internal Army document that he distributed at the
meeting.

1181

APA_0232118; APA_00017705 (Behnke’s typed and handwritten notes); Brandon Notes (June 2425, 2005) (on file with Sidley); HC00017712; HC00017725 (various handwritten notes from task force
members);

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The evidence shows that at the meeting, Banks was “persistent” about his agenda, in the
words of a DoD task force member. His agenda was, according to the same DoD task force
member, to get APA’s “good housekeeping” seal of approval for the involvement of
psychologists in interrogations and to otherwise keep the status quo and to avoid limits or
constraints beyond the ones the Army or DoD had in place or would decide to put in place in the
future. Another DoD task force member commented that Banks spoke out of “both sides of his
mouth” in pushing his agenda but also appearing amenable to the non-DoD members’ concerns.
According to at least one DoD task force member, Banks told task force members that he
had consulted with his generals within his U.S. Army Special Operations Command and had
already come to an agreement with his leaders that the “safe, legal, ethical, and effective”
framework was the appropriate way forward. It is also likely that, while not directly in other
command structures, Banks may have consulted with, or at least was aware of, other “army
stakeholders” 1182 and their views on interrogation policy. These would likely include consulting
with commanding generals of U.S. Special Operations Command and the Army Medical
Command (the Army Surgeon General), and perhaps the Joint Task Force – Guantanamo, and
the U.S. Southern Command. The evidence shows that that Army Surgeon General’s Office was
in fact in the midst of developing DoD policy on this issue and that Banks, Dunivin, and others
were helping craft its policy. Banks’s role on the task force, then, was not driven solely by him
but educated by various command structures’ needs on the issue.
Banks said and gave the impression that he did not want other DoD members to deviate
from the direction he was pursuing. For most of the DoD members, this was either
unobjectionable or in line with what they wanted to achieve. Gelles and James both believed
psychologists should continue to be involved as consultants in interrogations, and at the time this
remained a significant part of Gelles’s job as a criminal investigator with NCIS. And both
indicated in the meeting, in different ways, that a high-level report would probably be preferable
to a more specifically-defined one. Fein, a DoD contractor within Shumate’s unit, did not say as
much but deferred to the positions of the actual DoD officials.
Shumate made it clear he was uncomfortable with public disclosure of specific examples
that might provide further guidance, thought “coercive” was too broad a word to be used in this
context, and may have wanted to manage the task force’s public message by using words that
softened the reality of the pressure DoD psychologists faced to help produce actionable
intelligence. He informed Sidley that he briefed the head of CIFA after the report was finalized
and believed that the report was “briefed up” at least within his chain of command, which would
have included the head of CIFA, followed by the Deputy Under Secretary of Defense for
Counterintelligence and Security, and then the Under Secretary of Defense for Intelligence. It is
not clear, however, whether the report was briefed all the way to the Intelligence Undersecretary.
Shumate also met with William Winkenwerder, then-Assistant Secretary of Defense for Health
Affairs, and briefed him on the report’s findings ahead of its release. 1183 Shumate explained that
1182

The term was used by Bruce Crow, then-Consultant to the Army Surgeon General’s Office. He
believed that Banks was attuned to various command structures’ concerns and brought them to bear as
he, along with Dunivin, spearheaded BSCT policy with the Army Surgeon General’s office. Crow
interview (June 22, 2015).
1183

APA_0026757.

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while the military side of DoD had a “tremendous interest” in the PENS report, the civilian side
that he was apart of thought the report was a “positive” development but not an “essential” one
for their needs. 1184
2.

Non-DoD Task Force members

There were two very strong pushes by Wessells during the meeting that—if accepted—
would have created a report with tighter, more specific ethical constraints on national security
psychologists involved in interrogations, in ways that would have been inconsistent with the
strong preferences of Banks and key parts of DoD. The first, an attempt to use the provisions of
the Geneva Conventions or other common international law sources to define the high-level
terms being discussed at the meeting, was joined strongly by Arrigo and Thomas. This was
rejected by the other members of the task force, and therefore in the Behnke-drafted task force
report. The second was a subsequent attempt to create specificity within the document in other
ways, by discussing where to draw the line between permissible and impermissible interrogation
techniques a psychologist could be involved in (either based on a discussion of some of the most
significant techniques being discussed publicly, or a description related to “psychological
distress”).
Thus, two pushes for ethics positions that would have made the Task Force report a very
different document were explicitly made and were rejected by the DoD task force members and
the APA task force leadership. The three non-DoD members acknowledge that if they had
firmly and officially dissented and refused to accept the task force report, this might have made a
difference. And in fact, Behnke and other APA leaders consistently offer the final sign-off on
the report of the three non-DoD members as proof that the document does not merely reflect a
pro-DoD position.
These three task force members clearly came to regret going along with the document at
the end of the meeting, and insist that their failure to issue a final and overall dissent should not
be taken as approval of APA’s claim (made one day after the Task Force report was made
public) that the report set out “strict ethical boundaries,” 1185 since they had been told that APA
only considered the report a first step and that the actual “boundaries” would be set out in a
follow-up casebook. For Wessells in particular, and for Arrigo as well, the explicit promise that
the report was simply an interim step to be quickly followed by a more thorough set of specific
guidelines was crucial to their agreeing to sign off on the report. Wessells clearly felt duped
when he was told six months later that nothing had been done on the casebook, and he resigned
from the task force thereafter (discussed more later).
Arrigo and Thomas also cited a feeling of intense group pressure from the much larger
group of DoD task force members and APA leaders (all men, they point out) to go along at the
end, in order to enable APA to make a clear and positive public statement, including that APA
was against torture. As psychologists, they all cite the “groupthink” psychological phenomenon
as something that may have been a factor in their going along at the end, in addition to their
1184

Shumate interview (June 24, 2015).

1185

APA_0040304.

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belief that this was not—and would not be portrayed by APA—as a final, strong set of “strict
ethical guidelines.” Many observers from inside and outside DoD observed for us that there was
a real “us versus them” split in the room, between DoD and non-DoD task force members, and
that all the DoD members except for Banks sat on one side of the table, across from the non-DoD
members. 1186
Adding to this dynamic was the participation of Koocher on the first day and Newman
throughout the meeting, both of whom spoke up forcefully in opposition to some of the key
points of the non-DoD task force members. 1187 Banks and the DoD task force members had
allies in Koocher, Newman, and Behnke who not only agreed with the strategy of deferring to
DoD’s preferences, but who also strongly cared about (and, especially as to Newman and
Behnke, articulated during the meeting) the goal of ensuring that the result at the end of the
meeting was a document that APA could use for positive PR purposes, that “calm[ed] the
issues,” avoided “rekindling the fires,” and “clarified” and “simplified” because the press
accounts had “messed up the message.” In their vie, APA needed a clear, straightforward, public
statement—without delay—that would solve the PR problem by portraying APA as a
professional association that was taking to action to set ethical guidelines rather than sitting on
the sidelines, while keeping DoD psychologists as involved and unconstrained as possible.
Based on what we have seen in our investigation, we agree with the three contributing
non-DoD task force members that it is unfair for defenders of the APA task force report to use
their end-of-report approval as evidence that the report simply reflects the consensus of a diverse
task force rather than an intentional pro-DoD approach. The behind-the-scenes evidence
squarely contradicts this, and a proper reading of the meeting proceedings is inconsistent with
this as well.

1186

Brandon’s notes bear this dynamic out. At one point, she noted that, “paternalism is only increasing”
within the DoD member comments and cited how Shumate kept using terms like “us” and “our” when
discussing the government’s position. Brandon Notes (June 24–25, 2005) (on file with Sidley); Brandon
interview (May 26, 2015).
1187

Koocher’s aggressive style of going on the attack against the non-DoD task force members continued
after the meeting, when he attacked Wessells’s resignation as meaningless because the task force no
longer existed, a highly disingenuous comment since Wessells’ resignation came in reaction to an email
to the task force from its chair stating that the task force’s work continued because it would be asked to
help consult regarding the potential “casebook.” In his criticism of Wessells, Koocher also called the
head of the rival American Psychiatric Association “an idiot full of sound and fury” (quoting
Shakespeare), and months later attacked Arrigo for her personal biases that she had revealed at the
beginning of the task force meeting about how her father had been involved in torture with the CIA’s
predecessor agency, the OSS. PENS listserv (Jan. 15, 2006); APA_0095571. Newman was known as a
“bulldog,” in the words of his former APA colleagues, and he told us that when he spoke up at the task
force meeting, he was doing so with the clear purpose of trying to strongly influence the outcome.

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B.

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Day One: June 24, 2005
1.

Day one conversations

The topics discussed on the first part of the first day permeated the entire weekend of
conversations at the PENS meetings. 1188 Some observations and commentary from the sequence
of early conversations are listed below:
x

Moorehead-Slaughter’s opening remarks noted that investigating past actions were
the domain of the Ethics Committee, not the task force. Instead, MooreheadSlaughter underscored the need to provide guidance to psychologists.

x

There was no indication from PENS participants that Moorehead-Slaughter played a
leading role during any of the task force discussions. She was viewed as a
figurehead by most everyone in the room, and multiple participants commented on
how unfamiliar she was with the subject matter. It appears that MooreheadSlaughter’s predominant role was that of facilitator (and Behnke’s agent as previously
discussed) , though even that role was appropriated by others in the room like
Newman. By all accounts, Moorehead-Slaughter’s weak leadership stimulated the
ability of other voices and views to dominate the conversation and led to the PENS
report being, as Lefever put it, “not [a] very good product.” 1189

x

Soon thereafter, the DoD members, especially James, protested the idea of Bloche
joining the PENS meetings. James went so far as to refuse being in the same room as
Bloche. Banks noted that publishing John Leso’s name in Bloche and Marks’s latest
article endangered Leso’s life.
o Of note, James told Sidley that he consulted with his chain of command
before PENS to make sure that they were aware of his participation and that
they had no issues. He specifically consulted with his two Navy clinical
supervisors at his hospital, Walter Reed Medical Center, and made sure he
“wasn’t saying anything out of line.” 1190 He also discussed the issue with
Navy attorneys at one point, among other topics. James said the two take
away messages from these chain of command conversations were (1) to
ensure that psychologists kept their presence in detention settings, and (2) to
inform DoD on how to conduct interrogations safely and ethically. 1191

x

Early on, Thomas noted the need to take culture and ethnicity into account with
interrogating detainees of various backgrounds. These considerations were included
in later drafts of the PENS report.

1188

All notes come from Arrigo PENS Meetings Notes (June 24, 2005) unless otherwise noted.

1189

Lefever interview (May 3, 2015).

1190

James interview (May 1, 2015).

1191

Id.

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x

PENS TASK FORCE, & INITIAL AFTERMATH

Lefever made clear that his oath was to the United States and that U.S. law and
community standards were his guidepost in determining what were acceptable
practices. He defended the merits of certain harsher interrogation techniques and
noted that he thought it was useful to think of DoD ethics and APA ethics as a Venn
diagram and finding areas where the ethics overlapped and where they did not.
o Though his ultimate views on which tactics were permissible may have been
in the minority, 1192 Lefever appeared ready to discuss the ethical nature of
various interrogation techniques. He later told Sidley that he welcomed
having conversations on the specific interrogation techniques but believed
there were multiple agendas/biases present during the meeting: (1) the stated
agenda, which was to see if the ethics code adequately addressed the issues
facing psychologists in interrogation settings; (2) the agenda of peace
psychologists and “pacifists,” as he called them, who likely did not want
psychologists in these locations at all (or did not wish to commit to a specified
list of techniques for fear of excluding others); and (3) the agenda of Morgan
Banks, who strove to keep psychologists in these settings and grounded the
discussion with his general phraseology of “safe, legal, ethical, effective,” and
who had little desire to discuss specifics. 1193 Lefever also noted that he got
the “distinct impression” at one of the PENS dinners with task force members
that Banks did not want to deviate from this phraseology in the PENS report.
He also believed there was a general “fear” among other DoD members about
addressing the issues in a concrete way so, instead, they wanted to “vote and
get out.” 1194
o Of note, Wessells and Lefever both appeared to arrive to the PENS meetings
with honest but differing philosophical views of what to accomplish.
Wessells’s approach was more absolute and posited that certain actions and
techniques were wrong under any circumstances. As such, the ethics code
should reflect these right and wrong actions. He rejected a relativistic view of
ethics and preferred to ground the debate in international legal principles that
could serve as a lodestar to determine which behaviors were permissible.
Lefever, on the other hand, believed there was a difference between
techniques that caused pain (which were short-term and ethical) and those
caused harm (which were long-term and unethical), and wished to explore this
difference during the meeting. He also believed that determining what was
ethical was based on community standards. So if a technique was deemed

1192

Lefever made comments throughout the meeting about how a certain amount of pain or stress might
be ethical, but others did not appear to vocalize support for these positions. Lefever explained to Sidley
that there was a difference to him between causing pain to someone (which could be ethical) and causing
harm (which would be unethical), and the line between the two was the conversation that should have
occurred during the PENS meetings. But it never did, as Lefever noted. Lefever interview (May 3,
2015).
1193

Id.

1194

Id.

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acceptable by the community, then it was ethical. Lefever explained that the
ethical question was a separate inquiry from whether a technique was moral.
Under this framework, there could be techniques that were ethical but
immoral. Despite their vastly opposing views on ethics and morality, both
agreed that the foundational question of the task force was to identify which
techniques were permitted and which ones were not. And both were deeply
criticized the final product of the task force for not answering this key
question. Lefever called the report “not defined” and “loose,” while Wessells
described the process as an “absolute farce.” 1195
x

Banks disagreed with Lefever’s Venn diagram approach and argued that all illegal
behavior was already proscribed. The key question for Banks, as he also noted in his
first May 11 message on the listserv, was determining what legal behaviors were
ethical and then providing guidance for those behaviors. 1196 Bank’s draft PPSI also
included the point that the “Ethics Code is always subordinate to the law and
regulations.” 1197
o Banks’s approach, as critics have pointed out, appears to have changed the
understanding of APA Standard 1.02 at the time. The language in the rule
stated a psychologist “may” follow the law if a conflict is unresolvable
between the law and the ethical code. Banks raised this point earlier on the
listserv to explore techniques that were legal but possibly unethical, but did
not appear to pursue this line of inquiry during the meetings.

x

Shumate made comments that suggested specific guidance was needed for
psychologists (Arrigo’s notes : “provide structure, guidance. Embrace this as an
opportunity.”). He also appeared to be mindful of how to message certain issues,
such as when he disagreed with Lefever about whether psychologists face “pressures”
and preferred to use the term “encounter conflicts.” He was also skeptical that a
subsequent casebook would be feasible; he repeated this concern on the second day of
meetings.
o Shumate explained to Sidley that his comment about guidance reflected a
general belief that in any situation, particularly one where there was a great
deal of stress involved, it was important to have guidance in place. But
Shumate clarified that he did not believe the PENS Task Force should have
undertaken a deep dive into specific techniques that were permissible or not.
Instead, he desired that more research was conducted in this field to determine
what types of techniques and interrogation strategies were effective. 1198

1195

Wessells interviews (March 11, 2015 & June 15, 2015); Lefever interview (May 3, 2015).

1196

PENS listserv (May 11, 2005).

1197

HC00008914.

1198

Shumate interview (June 24, 2015).

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o Shumate’s skepticism on providing real-life examples foreshadowed his
position in 2006 that the task force not lead the casebook process, as discussed
later (exerpt from Arrigo’s notes: “Getting publishable examples will be
awful. No useful product. . . . maybe APA can generate it. DoD psychologists
can’t.”). Shumate told Sidley that he thought the casebook would have been
an “immensely large” undertaking and lead to logistical issues with classified
information and DoD review. On the second day, Arrigo’s notes indicate that
Shumate stated he “thought that examples would alarm [people about the use
of] psychological science.” Shumate explained to Sidley that the comment
referred to the public’s misgivings about anything involving the word
“interrogation.” 1199 This point does not appear credible given that the notes
talk about “alarm” and not misperceptions. It is more likely that Shumate
believed that there would be a public outcry over actual examples and
interrogation techniques used at the time.
x

Gelles harped on the point that psychologists should only assist in obtaining
information but never in conducting the interrogation.

x

Newman, in his role as observer and as head of the Practice Directorate, asserted
points that related more to the growth and protection of the profession as opposed to
the ethical consideration. (ex: Arrigo’s notes : “The profession will never advance if
we don’t apply the profession to new areas;” “The message that goes to our own field
can reflect the complexity. The message that goes to the public cannot reflect the
complexity;” “Should say what is being done that is appropriate. Got to clarify that
psychologists are not engaged in inappropriate behavior on the whole.”)
o Newman led much of the task force discussions throughout the weekend. He
often appeared to limit discussion on issues outside the perceived scope of the
task force’s mandate. He also openly discussed the political considerations of
the report. Newman told Sidley that he believed that Arrigo’s notes on what
he said during the meetings were “not inaccurate.” 1200 Arrigo attributed lines
to him about “dampening the fires” and Newman agreed that he could have
made that comment in the public relations context of the discussion. He did
believe the message to the public should be simple and direct. Other
observers in the room, in contrast with Newman, were instructed not to speak
during the meeting. Brandon recalled that either Behnke or Mumford had
informed that she could not offer comments during the meeting. 1201
o Newman agreed that he was a regular contributor during the PENS meetings
and that, as general practice in all of his interactions with people, he tried to
“speak with influence.” A goal of his was to assure that the practices at issue
would be “allowed to continue” within APA ethical framework. Newman

1199

Id.

1200

Newman interview (Apr. 29, 2015).

1201

Brandon interview (May 26, 2015).

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insisted, however, that he would have deferred to the task force members or
the Ethics Committee if they had determined that the interrogation practices
were unethical. 1202 His role as the head of the Practice Directorate, what
many within APA describe as the largest and most important Directorate
within APA, only served to amplify Newman’s voice.
o Newman also told Sidley that, as head of the Practice Directorate, the image
of the psychological profession was important to him, and he worked “as
much as anybody” about the perception issues that APA had to manage both
internally and externally with any public pronouncements. 1203
x

After a recess, Moorehead-Slaughter opened the discussion by stating that “safe,
legal, ethical, and effective” was a key analytical framework. The phrase had not
been mentioned during the meeting until this time, though it had been used by Banks
on the listserv before. And Behnke told Moorehead-Slaughter earlier over email, as
discussed above, that the phraseology would be the analytical framework to use.

x

Two DoD members, Gelles and Lefever, both told Sidley that they were not
impressed with Banks’s analytical framework. Gelles commented that it sounded
“cliché-ish” and that he did not understand what “safe” or “effective” meant. 1204
Lefever did not think there was any research to show that psychologists could make
interrogations fully “safe, legal, ethical, and effective.” Lefever described that he
went along with the phraseology once it was clear to him that the meetings were not
going to delve into the specific techniques and philosophical issues at play during
interrogations. 1205

x

Behnke, like Newman, also raised public relations-related considerations (ex:
Arrigo’s notes: “How repetition in the press messes up message. Clarify. Simplify;”
“Certain words very evocative: explicit, manipulate, interrogate.”).

x

After Behnke’s comments, Fein, James, and Shumate all offered thoughts that
suggested they wanted the report to stay at a more general level. For example, Fein
noted how “No one can define ‘torture,’ ” and James added that the group should “lay
out basic principles, worry about definition later.” Shumate also appeared to ask for
latitude on what techniques to use until additional research was done: “We don’t truly
know what is effective or not effective. It’s an empirical matter what works. Don’t
rule out until we know.”

x

The group engaged in an ethical debate about dual roles soon after Behnke’s
comments. The PENS report ultimately rejected dual roles for psychologists (i.e., a

1202

Newman interview (Apr. 29, 2015).

1203

Id.

1204

Gelles interview (May 27, 2015).

1205

Lefever interview (May 3, 2015).

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psychologist who may act as both an interrogation consultant and mental health
professional for a detainee).
After lunch on the first day, Behnke released a one-page first draft of the PENS report for
review. 1206 The draft statement contained nine statements, not all of which were discussed in the
morning meeting. The first statement noted that psychologists’ “central role” was to “ensure that
all processes are safe, legal, and ethical for all participants in the process.” 1207 The first draft
stated that psychologists “do not condone or participate in torture” but did not list cruel,
inhumane, or degrading treatment (this language was included in the third draft of the report). In
an interview with Sidley, Behnke did not recall whether he outlined any of these statements
before the meeting but noted that he was sitting at his computer taking notes the first day. 1208
Koocher told Sidley that he believed Behnke had created a report template before the task force
met but was unsure of the details. 1209 Additional discussions arose from Behnke’s draft,
including the issue of when one could use medical records and clarifying the roles of the
psychologist.
The night of the first day’s meeting and before the task force dinner, Behnke sent a
partially revised draft report for Gilfoyle’s review. 1210 Gilfoyle suggested adding language from
(presumably) Banks’s PPSI, listing possible activities for psychologists in interrogation settings
as well as adding the word “effective” to the “safe, legal, and ethical” phrase in Behnke’s
draft. 1211 She noted that Behnke had a “problem” with the word “effective,” but could not recall
what she was referring to in her interview with Sidley. 1212
2.

International law

Starting on the first day, Wessells engaged with several DoD members and Koocher on
the need for incorporating international human rights standards into the group’s ethical
understandings. Thomas and Arrigo also subscribed to Wessells positions. 1213 Wessells noted
his discomfort with not mentioning human rights standards in their analysis, particularly
Common Article 3 of the Geneva Conventions. 1214 He bluntly stated that the United States threw
1206

HC00008928.

1207

Id.

1208

Behnke interviews (May 22, 2015 & May 29, 2015).

1209

Koocher interview (March 20, 2015).

1210

APA_0040831.

1211

Id.

1212

Gilfoyle interview (May 20, 2015).

1213

Arrigo PENS Meeting Notes (June 24, 2005).

1214

Common Article 3 provides that detainees shall be “treated humanely” and that therefore “violence to
life and person, in particular . . . cruel treatment and torture,” and “outages upon person dignity, in
particular humiliating and degrading treatment” were prohibited. The United Nations Convention
Against Torture defines “torture” as an act that intentionally inflicts “severe [physical or mental] pain or
suffering” on someone for one of several purposes, including obtaining information or a confession,
punishing him, or intimidating or coercing him or a third person. Customary international human rights

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out human rights issues when it was inconvenient for their efforts, and that human rights
organizations had declared that current U.S. interpretations of international laws were wrong. As
Arrigo put in her notes on Wessells’s comments:
What kind of damage [will be done] to APA if we say we do not support human
rights as defined in the Geneva Conventions and other conventions? What about
[the] damage to our national security? If we engage in human rights violations,
the message that sends to other countries [is damaging to our national security].
They therefore become our enemies and attack. . . . The standards [on
international human rights] are not an issue for debate at this point. . . [The] APA
Code commits us to human rights. Does American law trump international law?
As a professional society, do we have commitments in [the] human rights
direction? If we aspire to these things, can we throw international human rights
away? APA is diverse but the diversity is not represented here. . . . We would
damage ourselves as an association if we support American law when it
contradicts international law. DoD has defined a set of standards not congruent
with international law. If we endorse that, we damage our credibility. . . . As a
professional association, at a moment of national panic, [we must] take a high
standard. 1215
Ultimately, the PENS report included language that did not ethically bind psychologists
by human rights standards, but did state that psychologists should review the Geneva Convention
Relative to the Treatment of Prisoners of War and the U.N. Convention Against Torture since
they were “fundamental to the treatment of individuals.” 1216
Wessells told Sidley that he pressed his point several times to add binding language from
the Geneva Conventions and the U.N. Convention Against Torture but that it was a “complete
loser” with the DoD people in the room. He noted that the DoD members were “passionate”
about upholding the existing military regulations at the time, which permitted what he called
“torture-lite.” 1217 He later bemoaned that “once ethics becomes the handmaiden of patriotism,”
you were not talking about ethics anymore and, instead, were allowing ethics to be “appropriated
by these other concerns.” 1218
Incorporating international law into the PENS report was one of the most contentious
issues over the meeting period. While several DoD PENS members expressed an openness to
abide by the Geneva Conventions or the U.N. Convention Against Torture, none appeared

law, as defined by the International Committee on the Red Cross, defines “inhuman treatment” the same
way as this definition of “torture” but without the specific-purpose requirement, and defines “degrading
treatment” as acts that humiliate, degrade, or otherwise violated the person’s dignity.
1215

Arrigo PENS Meeting Notes (June 24, 2005).

1216

PENS Report.

1217

Wessells interview (March 11, 2015).

1218

Id.

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comfortable mandating that psychologists in detainee interrogation settings follow them at all
times. Several of these members said they, or their DoD colleagues, could not accept a position
that varied from the requirements of U.S. law. In other words, as DoD officials they could not
agree to be bound by constraints on their behavior that went beyond the constraints set by U.S.
law. The DoD members gave various reasons for their stance to Sidley, as discussed below.
x

Gelles told Sidley that adding the Geneva Conventions language was moot since his
team at NCIS was already “doing the right things.” But he expressed that adding
such language could “tie up the Army and military guys.” Gelles recalled that no one
in the military asked him to explicitly lobby against using international law, but
Gelles remembered that people informally said “we have to make sure this doesn’t
happen,” referring to adding human rights standards. He was fairly certain that the
“military guys” were advocating this position, not Fein, Gravitz, or Shumate. He also
recalled phrases from members about how adding international legal standards would
present a “serious obstacle” to efforts during wartime (and where the Geneva
Conventions may not apply). 1219 Gelles surmised that the military members wanted
to incorporate as much of Banks’s PPSI into the report so that they could “protect
themselves” and quell any conflicts between military policy and APA ethical
pronouncements. Gelles went along with the approach since, according to him, it did
not impact his work and because he believed the report was an interim step in a
longer process. 1220

x

Banks explained that inserting international human rights language into the PENS
report could have created a “break” between a military officer’s oath of office, which
included a promise to follow U.S. law, and the APA’s Ethics Code, which could lead
to a dilemma where an officer would have to break their oath (and possibly the law)
or break their ethical duties. Banks stated that U.S. law already incorporated the
Geneva Conventions, so it was unnecessary to specify abiding by the international
law. Banks acknowledged that there was a debate about whether the Geneva
Conventions applied to detainees at the time, and that the definition of torture was
interpreted narrowly by the Department of Justice. The solution to this issue,
according to Banks, was the addition of the “cruel, inhuman, and degrading
treatment” language in the PENS report, which would have encompassed techniques
that were not considered torture but were still problematic. 1221 Those terms or
techniques were not defined in the report, however, as discussed further below.

x

James noted during the PENS meetings that he had no problem abiding by the
Geneva Conventions. He remarked to Sidley, however, that psychologists from other
agencies, such as the CIA, would have run afoul of these standards if they were
mandated in the PENS report. While James disagreed with the CIA’s approach to

1219

Gelles interview (Apr. 15, 2015).

1220

Gelles interview (May 27, 2015).

1221

Banks interview (May 21, 2015).

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interrogations, he told Sidley that he did want the report to be used as a “whipping
tool” to go after these psychologists. 1222
x

Fein said that he was not as familiar with the interplay between the various legal
standards discussed at the time of the PENS meeting. To him, the military members’
point that the U.S. Constitution was the guiding principle for the military made sense
at that time. In retrospect, he stated that the report would have been better served if
there was more specific information about issues of coercion. 1223

x

Shumate told Sidley that it would be a “huge issue” if the task force had inserted
international law into the report, and that he was most comfortable with following the
laws of the United States. He expressed that, practically, if the group decided to
follow certain international legal principles, then progress on the report would have
been “encumber[ed]” with discussions about these details. Shumate made comments
throughout the meetings that suggested he could not take a public stand as a senior
DoD official that was viewed as contrary to U.S. law, but he denied to Sidley that this
was a consideration for him. 1224

x

Lefever rejected the utility of international human rights standards in the document.
He welcomed a discussion into which specific techniques were permissible but
wished to follow U.S. law alone, especially as human rights standards were often
hypocritically espoused by the most oppressive of nations. He did not wish to open
that “can of worms.” 1225

While these positions may have been understandable as a statement of U.S. governmental
policy, Koocher also attacked the idea of the APA tapping into international law definitions in
crafting ethical guidance, calling it a “distraction to draw international law” into APA’s ethics
guidance. 1226 As one DoD task force member described it, and others suggested as well,
Koocher took a very “pro-America” stance throughout the PENS process. The report thus
rejected the use of or reference to international law, except to the extent it was incorporated into
and consistent with U.S. law (as then defined, including through the OLC memos)
But these hesitations to use international law in the report ignored the alternative ways
that the report could have embraced standards from international laws without fully adopting that
international instrument. For example, instead of having a report that stated that psychologists
had to abide by all of the provisions of the Geneva Conventions, some of which may not
recognized by the United States, 1227 the task force could have specified which Geneva
1222

James interview (June 1, 2015).

1223

Fein interview (May 11, 2015).

1224

Shumate interview (June 24, 2015).

1225

Lefever interview (May 3, 2015).

1226

Arrigo PENS Meeting Notes (June 24, 2015).

1227

Banks shared with Sidley how the United States does not recognize Protocol I to the Geneva
Conventions, which relates to the protection of victims in international armed conflicts. If an ethical

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Conventions applied—in this case, the Third Geneva Convention related the treatment of
prisoners of war, which the United States recognizes. 1228 If this was still problematic given the
uncertain nature of detainees’ legal status, the task force could have adopted language from the
Geneva Conventions without formally approving any portion of the instrument. Article 17 of the
Third Geneva Convention, for example, provides readily-adaptable language on the parameters
for questioning prisoners. 1229 The reference to the international law would have been a stronger
touchstone for the report, as opposed to U.S. law or military directives that could have been (and
were) trumped by pronouncements from the OLC or the Secretary of Defense.
Some say that this observation about avoiding international law shows the automatic
impact that selecting a majority of DoD officials had on the task force’s conclusion. But we
think that it actually shows an even more intentional decision by the APA task force leaders and
the DoD psychologists not to voluntarily commit psychology as a profession to a more robust set
of ethical limitations. To do so would have shown leadership on the issue in a way that likely
would have put APA at odds with DoD and the Administration. This may have caused a conflict
that would have resulted in DoD employing fewer psychologists or to writing policy that
subordinated the role of psychologists in interrogation and detention matters; and it may have
prompted some DoD psychologists to leave APA membership (although Banks was already
outside of APA membership).
But sometimes leadership in this manner causes external change rather than just conflict.
Thus, taking this direction (especially if the other leading health-care professional associations
also took ethical positions that were less accepting of the Administration’s position, as they
ultimately did) may have caused, or placed pressure on, DoD or the Administration to change its
position regarding the use of international-law definitions in these circumstances. By going
along with the “simply follow U.S. law” position of the DoD task force members, the APA task
force leadership was making an explicit choice to follow what DoD wanted rather than making
an independent decision about what were the appropriate ethical rules for psychologists in these
situations (other than the decision that was best for DoD was best for APA).

pronouncement stated to abide by the “Geneva Conventions,” then, Banks worried that military
psychologists would have to violate their oath and U.S. law. See Email from Banks to Sidley (June 18,
2015). For more on the Protocol, see https://www.icrc.org/ihl/INTRO/470. While the United States was
a signatory to the treaty, it has never ratified the protocol into law.
1228

Article 3 – Conflicts Not of an International Character, Geneva Convention (III) (Aug. 12, 1949),
available at https://www.icrc.org/applic/ihl/ihl.nsf/COM/375-590006?OpenDocument.
1229

Article 17 – Questioning of Prisoners, Geneva Convention (III) (Aug. 12, 1949), available at
https://www.icrc.org/ihl/WebART/375-590022?OpenDocument (“No physical or mental torture, nor any
other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind
whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any
unpleasant or disadvantageous treatment of any kind.”).

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3.

PENS TASK FORCE, & INITIAL AFTERMATH

Confidentiality of meetings

The most tense portion of the first day came at the end of the meeting when the topic of
confidentiality arose. Anton first raised the point during the meeting, to which MooreheadSlaughter replied that all conversations must stay in the room and not discussed outside. 1230
Arrigo noted that she complained about the “secrecy” at the time. Newman added that keeping
discussions confidential was advisable since they were dealing with a controversial topic and
conversations or varying views about it could “ignite the fire instead of dampen it.” 1231 Lefever
proposed discussing the issues back to his “community,” but multiple people rejected his
proposal. Breckler resolved that, given the “potential for varying interpretations,” the PENS
report should speak in a “single voice,” otherwise there would be many different versions. 1232
Ultimately, a vote was taken and all members, save for Arrigo who dissented and Wessells who
abstained, agreed to keep discussions confidential.
Shumate also demanded that Arrigo stop taking notes during these conversations. Gelles
relayed to Sidley that the Arrigo episode the first day contributed to an “us versus them”
mentality between the DoD and non-DoD members. 1233 Arrigo told Sidley that she was “so
upset” after the first day of meetings. 1234 Her remaining notes from the meetings were largely
taken on the margins of various PENS draft reports and are not as complete as her notes from the
first day of discussions.
It appears, however,the “no taking notes” policy was unevenly enforced. For example,
Susan Brandon, an observer in the room the first two days of the PENS meetings, was never
instructed to cease her note-taking according to her interview with Sidley. 1235 Thomas recalled
to Sidley that note-taking was not explicitly disallowed. 1236 But she posited that the group may
have had to leave their notes in the room during the meetings. 1237
Anton later emailed Koocher with an update on the group from day one (Koocher left the
proceedings by lunch time due to a family emergency and was not in attendance the rest of
Friday afternoon or Saturday). 1238 Anton remarked that the “DoD folks” offered useful insights
1230

Arrigo’s PENS Meetings Notes (June 24, 2005).

1231

Id.

1232

Id.

1233

Gelles interview (May 27, 2015).

1234

Arrigo interview (Apr. 27, 2015).

1235

Brandon interview (May 26, 2015). Sidley received varying accounts of whether other votes were
taken during the meetings. There was some belief that votes were taken on whether note-taking was
allowed and another vote on whether international human rights standards should apply in the document.
Sidley has been unable to corroborate with any certainty that either of these two votes formally took
place.
1236

Thomas interview (Feb. 13, 2015).

1237

Email from Thomas to Sidley (May 25, 2015).

1238

APA_0040795.

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during the meeting that illustrated how “complicated” these issues were. 1239 He also described
the afternoon’s confidentiality discussion as Arrigo was “taking copious notes.” 1240 He added
that Shumate and others felt “uncomfortable” with her note-taking and that the group, by “split
vote,” agreed to keep all meeting matters confidential and have the report speak for the group.
Koocher responded to Anton, copying Behnke, that he, too, “felt concerned” about Arrigo’s
note-taking. 1241 He suggested that it be made clear that the task force conclusions “should be
reached by consensus,” and that no communications during the meeting “be cited for attribution
UNLESS there is unanimous agreement and these appear in the approved report.” 1242
It should be noted that APA’s policies on the closed sessions were addressed in an
internal February 3, 2003 memorandum from Norman Anderson, which outlined the limited
circumstances where closed sessions were permissible for “personnel issues”:
As a general principle, the meetings of APA groups are open to any APA
member and APA staff. Occasionally, during board, committee and task force
meetings, sensitive matters must be discussed. Requiring that all meetings be
open at all times could inhibit full and frank discussion. However, in order to
respect the free and open flow of information within the association and to reduce
the appearance of “secret decisions,” closed meetings should be as infrequent as
possible and primarily limited to personnel issues or issues that might cause
personal embarrassment to the individual being discussed. Some of the work of a
few groups such as the Ethics Committee and the Committee on Accreditation
involves information of an inherently confidential nature about individuals or
institutions and their meetings are restricted pursuant to adopted rules or
procedures. 1243
Allowing a limited number of observers for an APA task force, all of whom
were pre-approved to attend, may not comply with the spirit of the February 2003
guidance. Gilfoyle defended the PENS meeting structure. 1244 She stated the February
2003 memorandum focused on closed meetings that involved no staff; this was not case
in PENS where multiple APA staffers were present. Gilfoyle also found the PENS setup
less problematic since the task force was not a formal APA decision-making body like
the Board of Directors. She also believed full and frank discussion could have been
inhibited if the meetings were more open. 1245

1239

Id.

1240

Id.

1241

Id.

1242

Id. (emphasis in original).

1243

APA_0083932.

1244

Gilfoyle interview (May 20, 2015).

1245

Id.

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C.

PENS TASK FORCE, & INITIAL AFTERMATH

Day Two: June 25, 2005
1.

Discussions about research

The evidence shows that Mumford, Brandon, Newman, and Gravitz made drafting
suggestions regarding the research recommendations, and at least some of Brandon’s drafting
suggestions made it into the final version.
Critics have pointed to some of this language as an indication that APA was intentionally
attempting to provide ethical support for research by the CIA or DoD on detainees at
Guantanamo or elsewhere, or was otherwise attempting to allow for research that involved harsh
interrogation techniques without the proper human-subject-research protections.
On the one hand, we found two notes in Behnke’s handwritten notes from the PENS Task
Force meeting in which the phrase “research on detainees” or “detainees as research subjects”
was noted. Behnke provided no explanation for these notes, and we found no emails or other
documentary evidence relating to them. In addition, in a meeting at the Department of
Homeland Security about two years earlier attended by Mumford and Brandon, one of the
subjects discussed was collecting data relating to detainees. Sources have told us without
corroboration that there is evidence of the CIA engaging in activity regarding detainee
interrogations that would constitute improper research.
Further, the language in the report’s research passages appears deficient. Ethics experts
have told us that the language in the PENS report quoted above was woefully deficient in terms
of the language that would typically be expected in order to communicate proper protections.
And the language regarding “cruel, inhuman, or degrading treatment” is ambiguous, and so may
easily be read to suggest that the research being described is to determine if interrogation
techniques that Americans would find cruel, inhuman or degrading may not be consider so bad
by other cultures.
On the other hand, we did not see evidence linking these recommendations to any actions
by APA officials regarding research, or linking their drafting to efforts by the government to use
a recommendation in the PENS report as a helpful point in being authorized to conduct human
subjects research without informed consent. We noted that these recommendations are not in the
12 ethical guidelines in the PENS report, and therefore do not have the force of ethical guidelines
for psychologists, in a way that might be pointed to as a justification for a psychologist’s actions.
We found this a topic on which it was difficult to draw clear conclusions, and our
discussion and analysis of the evidence is below.
Mumford sent Behnke a series of three emails the morning of the second day of PENS
meetings that included draft language on conducting research in national security settings. The
first message was sent at 8:16 a.m. ET, 1246 the second at 10:09 a.m. ET, 1247 and the third at 11:30

1246

APA_0029693; APA_0029694.

1247

APA_0029691; APA_0029692.

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a.m. ET. 1248 Each of Mumford’s emails added another paragraph from the previous message.
Mumford did not specifically recall with Sidley who or what prompted discussions about this
topic. Some of the draft language was included into the final report.
A copy of the draft language from each email is listed below with comments on each:
First email draft language:
Psychologists support research to evaluate the efficacy of methods for gathering
accurate and reliable information relevant to national security. Such research
should be designed to minimize the risk/benefit ratio and emotional/physical harm
to the research participants consistent with existing standards of human subjects
research and APA ethics code. 1249
x

A version of this statement appears as recommendation #7 in the final PENS report. It
removes the “risk/benefit ratio” and “emotional/physical harm” language and instead
states the need to “minimize risks to research participants such as emotional distress . . .
.” 1250 Brandon told Sidley that she may have contributed to the revisions of this research
point in the PENS report though she was unsure. 1251 Behnke stated that, while he did not
recall the draft language, he would have been comfortable with the change made in the
final report since the risk-benefit language may be used to justify all kinds of risk in the
name of saving lives. 1252

x

The same recommendation continues by stating that the research should be “should be
consistent with standards of human subject research protection and APA Ethics Code.”
Behnke stated that he understood “standards of human subject research protection” to
mean what medical ethicists thought were appropriate standards. Mumford believed the
language was an “unassailable and appropriate affirmation” to conduct research that
followed all standards of APA’s “Responsible Conduct Research.” 1253 But read another
way, the language may have accommodated the prevailing Wolfowitz Directive, which
allowed DoD division leaders to waive informed consent for certain detainees. 1254 More
on the Wolfowitz Directive was discussed earlier in this report. Behnke countered that
research on detainees would not fulfill the other language in the paragraph about how

1248

Mumford Notes (June 25, 2006) (on file with Sidley).

1249

APA_0029693; APA_0029694.

1250

PENS Report.

1251

Brandon interview (May 26, 2015); see also APA_0029660 (Mumford alludes to Brandon’s edits
making it into the final draft of the report).

1252

Behnke interview (June 8, 2015).

1253

Email from Mumford to Sidley (May 27, 2015); see also Responsible Conduct of Research, American
Psychological Association, available at http://www.apa.org/research/responsible/.
1254

Jason Leopold & Jeffrey Kaye, Wolfowitz Directive Gave Legal Cover to Detainee Experimentation
Program, Truthout (Oct. 14, 2010), available at http://www.truth-out.org/news/item/257:wolfowitzdirective-gave-legal-cover-to-detainee-experimentation-program.

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“research should be designed to minimize risks to research participants,” even if the
research was observational or to examine archived data. 1255
Second email draft language:
Psychologists support research to evaluate the efficacy of methods for gathering
accurate and reliable information relevant to national security. Such research
should be designed to minimize the risk/benefit ratio and emotional/physical harm
to the research participants consistent with existing standards of human subjects
research and APA ethics code.
Because disclosing the results of such research could compromise the
development of enhanced sources and methods, it may not always serve the
national interest to explain deception used in the research design or to include the
debriefing standards contained in 8.07 and 8.08. 1256
x

The new paragraph suggests that debriefing could be discarded if the “national interest”
was strong enough. The final report does not make this claim, but in its conclusion
section, it does note the “tension between conducting research that is classified or whose
success could be compromised if the research purpose and/or methodology become
known and ethical standards that require debriefing after participation in a study as a
research subject.” 1257 The new paragraph also makes note of “enhanced sources and
methods” without any explanation of what those are.
o Breckler told Sidley that this paragraph in the final report, though poorly
worded, likely related to research being conducted at Department of
Homeland Security Centers of Excellence and having psychologists involved
in those studies that included research on deception and interrogations. He
added that the issue of debriefing in classified settings was subject of much
debate, so that was why the “tension” language was added here. 1258

x

Mumford thought that the new paragraph came from someone with a “national security
interest” and speculated that Fein may have suggested this since he was the research
expert. Mumford also told Sidley that he interacted most with Shumate at the time, but
thought it unlikely that Shumate would have offered this language. 1259
o But Mumford may have had more of a direct role in drafting these two
paragraphs based on a message he sent earlier to Behnke, Breckler, and Kelly.

1255

Behnke interview (June 8, 2015).

1256

APA_0029691; APA_0029692.

1257

PENS Report.

1258

Breckler interview (June 18, 2015).

1259

Mumford interview (May 18, 2015).

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On May 23, 2005, Mumford emailed the three and used the “risk/benefit”
language and queried whether “all coercive techniques should be discredited,”
or if there were techniques available “that would pass some risk/benefit
test?” 1260 Mumford then stated that “behavioral scientists get away with using
deception/coercion all the time in research with the understanding that
participants are later debriefed as to the true nature of the research. . . couldn't
it be argued that the application of those techniques (sans debriefing) in
national security settings are justified?” 1261
x

This paragraph in particular suggests that research on detainees could have been
envisioned at some point by someone associated with the task force. It is hard to explain
why the “national interest” would be a factor in research conducted in a lab or other
closed setting; the language seems more likely to relate to questioning people and not
revealing what one’s research intentions were.
o Mumford later suggested to Sidley that the research paragraph may have
envisioned something like the Transportation Security Authority’s Screening
Passengers by Observation Techniques (“SPOT”) program, 1262 a type of
behavioral detection program that has been met with controversy. 1263 The
TSA SPOT program, however, did not exist until January 2006; 1264 it is
possible that a program like that was envisioned at the time, however. Also,
as mentioned above, Breckler suggested that DHS Centers of Excellence were
envisioned when discussing research opportunities for psychologists in
national security settings.

x

Brandon told Sidley that the new paragraph appeared to have come from someone
involved in the counterintelligence community, perhaps Shumate or Gravitz. 1265 She
stated that it sounded like a clinician without much experience in research wrote the
language since a psychologist always needed to debrief a research subject. 1266

1260

APA_0025671.

1261

Id. (ellipses in original).

1262

Privacy Impact Assessment Update for the Screening of Passengers by Observation Techniques
Program, Department of Homeland Security (Aug. 5, 2011), available at
http://www.dhs.gov/xlibrary/assets/privacy/privacy-pia-tsa-spot-update.pdf; see also Email from
Mumford to Sidley (May 20, 2015).
1263

Josh Hicks, ACLU Sues for Details of TSA’s Controversial ‘Behavioral Detection’ Program,
Washington Post (Mar. 20, 2015), available at http://www.washingtonpost.com/blogs/federaleye/wp/2015/03/20/aclu-sues-for-details-of-tsas-controversial-behavioral-detection-program/.
1264

Sharon Weinberger, Airport security: Intent to Deceive?, Nature (May 26, 2010), available at
http://www.nature.com/news/2010/100526/full/465412a.html.

1265

Brandon interview (May 26, 2015).

1266

Id.

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Third email draft language (email subject notes that Gravitz and Newman provided input):
Psychologists have the obligation to utilize psychological knowledge derived from
recognized authoritative sources ( e.g. research, experience to inform
professional judgement [sic]) in the furtherance of their scientific and
professional activities. (e.g. efficacy of using positive reinforcement vs. negative
reinforcement).
Psychologists support research to evaluate the efficacy of methods for gathering
accurate and reliable information. Such research should be designed to minimize
the risk/benefit ratio and emotional/physical distress to research participants
consistent with existing standards of human subjects research protections and
APA ethics code.
Because disclosing the results of such research in certain contexts could
compromise the development of enhanced sources and methods, it may not always
serve the interests of national security to explain deception used in the research
design or to include the debriefing standards contained in 8.07 and 8.08. 1267
x

The new introductory paragraph underscores the “obligation” psychologists have to use
all “authoritative sources” to further their activities. This paragraph does not appear in
the final report, though a conclusion paragraph under Statement Twelve contains
language states psychologists “should encourage and engage in further research to
evaluate and enhance the efficacy and effectiveness of the application of psychological
science to issues, concerns and operations relevant to national security.” 1268 Mumford
remarked to Sidley that this draft paragraph reflected the emphasis the practice
community (as opposed to the research community) placed on professional judgment. 1269

x

The final report paragraph also states the need to be aware of cultural differences and its
impact on what information-gathering methods were cruel, inhuman, or degrading
(“CID”) treatment (Statement Twelve, fourth bullet). This sentence could be read as
weighing cultural differences in defining what might be “cruel, inhuman, or degrading”
in one culture versus another. For example, if it was believed that a detainee from Saudi
Arabia would consider only a ‘high-level” of harsh techniques degrading, then an
interrogator would be permitted to use other “low-level” harsh techniques for that Saudi
detainee.
o Brandon believed she may helped write the full paragraph but that the cultural
differences point was poorly worded in retrospect. 1270 The sentence was
supposed to convey the need to be respectful to other cultural backgrounds,

1267

Mumford Notes (June 25, 2006) (on file with Sidley).

1268

PENS Report.

1269

Mumford interview (May 18, 2015).

1270

Brandon interview (May 26, 2015).

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not imply that what was considered cruel was relative to a detainee’s cultural
background. 1271
o Behnke told Sidley that wished he would have included a clause to clarify that
cultural differences in “cruel, inhuman, or degrading” meant a technique was
not cruel in either the detainee’s or the interrogator’s culture. 1272 He
explained that any potential concern, however, would be removed when
reading the second bullet point under Statement Seven of the report, which
links safety and efficacy to cultural understanding (“How failures to
understand aspects of individuals’ culture and ethnicity may generate
misunderstandings, compromise the efficacy and hence the safety of
investigatory processes, and result in significant mental and physical harm.”).
Behnke argued that safety and efficacy were linked, and that he relied on
Banks’s comments on the PENS listserv about how using SERE techniques
and gathering accurate information were “diametrically opposed” with one
another. 1273
Brandon, Behnke, Breckler, Mumford and others at APA have told Sidley that, despite
these draft statements and ambiguous/poorly drafted PENS report language, research on
detainees were never discussed or pushed by task force members or outside entities. 1274 Brandon
also stated that when she first joined the High-Value Interrogation Group (“HIG”) in 2009, one
of the first things she inquired about was whether any government agencies had conduced
research on detainees; she found no records. 1275
Yet in one of Behnke’s handwritten set of notes, likely from the second day of the PENS
meetings, 1276 he noted two instances of detainee research—on the first page of notes, Behnke
wrote “detainees as research subjects;” on the last page, Behnke wrote “research a
detainees?” 1277 The second note is crossed out by two dotted “X” marks. These notes do not
appear in either Arrigo’s or Brandon’s set of notes, implying that these thoughts arose from sideconversations Behnke had or thoughts he had himself. Behnke could not recall why he wrote
those notes but insisted that these topics were not discussed during the PENS meetings. 1278 In
addition, interviews with government officials revealed a strong awareness after September 11
1271

Id.

1272

Behnke interview (June 8, 2015).

1273

PENS listserv (May 23, 2005).

1274

Brandon interview (May 26, 2015).

1275

Id.

1276

HC00017705. The notes are undated, but they are not from the first day since we located Behnke’s
typed set of notes from that day. Some of the comments in this handwritten set also appear on Arrigo’s
set of notes from the second day leading us to conclude they are at least, in part, from the second day of
PENS meetings.
1277

Id.

1278

Behnke interviews (May 22, 2015 & May 29, 2015).

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about the possibility of gathering data on detainees and the debates that ensued in the years
after. 1279 None of the interviewees were aware whether research on detainees ever occurred, but
the topic was discussed in government circles—where researchers could observe detainees and
the interrogation tactics that were used, be it in real-time or with archived data, without any
involvement in the interrogation itself. The PENS report’s research language, which is limited,
appears to leave space for these kinds of efforts to occur. But we were unable to conclude that
this, in fact, was what was envisioned by anyone at the time.
2.

PENS second draft report

Behnke distributed a second draft of the task force report at the start of the second day of
PENS meetings. Behnke’s hard copy files from the PENS meeting contains his copy of the
second draft along with his notes in the margins. A copy of this draft is appended to this
report. 1280 Twelve statements appear in this draft and , save for Statement Seven, each appear in
the final version of the report, albeit in a slightly different order and with wording changes. But
the vast majority of this draft comprises the final report. So after one day of task force
deliberations, Behnke drafted a document that would largely become the final PENS report’s
twelve statements.
Statement seven in this draft, which is excluded from the next draft version, is the one
statement in any draft version that offered more specifics on when and what “techniques” to use.
The statement reads as follows:
[P]sychologists do not consult on techniques that would cause psychological
distress except for a clear, legitimate purpose, such as to prevent future acts of
violence. Punishment and obtaining a confession do not constitute legitimate
purposes. If psychologists consult on activities that would cause psychological
distress, they follow the restrictions on psychological distress set forth in Ethical
Standard 8.07, Deception in Research, which places boundaries on the degree of
psychological distress researchers may impose upon research subjects.
The statement outlined a “legitimate purpose test” to determine when a psychologist
could consult on techniques that cause “psychological distress.” This potentially large loophole
on using techniques that cause psychological distress is limited by the next sentence, which
specifies that punishment and obtaining a confession are not legitimate purpose. This language
incorporates a portion of the U.N. Convention Against Torture’s definition of torture, which
states that for an act to be considered torture, it must be done for one of several purposes,
including obtaining “information or a confession,” “punishing him,” or “intimidating or coercing
him or a third person.” Behnke’s used the “confession” and “punishment” limitations, but left
out the “obtaining information,” “intimidating,” and “coercing” limitations. 1281 Thus, Behnke’s
1279

Banks, Gelles, and Andy Morgan all mentioned to Sidley the vigorous debates taking place within the
military and government about the unique opportunities that researchers had to observe interrogations.
1280

HC00017699.

1281

U.N. Convention Against Torture (Dec. 10, 1984), available at
http://www.ohchr.org/EN/ProfessionalInterest/Pages/CAT.aspx.

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draft allowed psychologists to recommend an interrogation technique that would cause
psychological distress as long as their purpose was to get information in order to prevent future
acts of violence, and was not to punish or obtain a “confession.” Behnke’s draft also created a
novel second limitation—that psychologists in these situations needed to follow the restrictions
set out in a research provision of the Ethics Code Standard 8.07, which provides that
psychologists do not deceive prospective research participants about research that is reasonably
expected to cause “physical pain or severe emotional distress.” Behnke said he could not recall
why he included this provision as a type of limitation.
Arrigo’s notes from the second day onward are much less comprehensive since the group
voted on confidentiality and Shumate insisted that she cease note-taking the day before. She
wrote notes on the margins of the draft reports, which were then transcribed. But the notes
appear to corroborate the notion that there was some discussion about the draft statement and
also specific techniques more broadly. It also appears that Banks was against the language:
[Anton] Psychologist as advisor to induce stress.
[Banks] Thinks confession is legitimate purpose [for consultation with a
psychologist].
[unattributed] Psychologists do not conduct interrogation except possibly in
emergency field condition.
[Banks] Often we do try to exploit psychological distress. We need the
boundaries.
[Gelles] Creating conflict in a person is the way to move towards confession.
...
[Wessells] The disorientation techniques remain. Our reputation in this
profession depends on this document.
...
[Wessells] Still worried about the gray areas.
...
[unattributed] the point on the dial. Do we need to address this? We will be
asked. E.g., sleep deprivation. 1282
Wessells recalled a longer discussion about whether “psychological distress,” as noted in
the Statement Seven draft language, was an appropriate dividing line for lawful or unlawful
interrogations. People like Gelles and Shumate, Wessells believed, thought the line was
inappropriate since it could encompass lawful domestic interrogations that involved plea
1282

Arrigo PENS Meeting Notes (June 25, 2005).

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bargaining, which could involve a certain level of distress. Wessells also recalled “evasive”
discussions with Banks, who opposed this new language, about specific interrogation techniques.
On sleep deprivation, for example, Wessells inquired to Banks how sleep deprivation was used.
Banks remarked that having someone sleep three or four hours the night before an interrogation
could be useful. Wessells then asked whether the techniques could be used on successive nights
and, if so, how many and whether it could be used in combination with our techniques. He did
not receive a direct answer. As discussed more below in his resignation from the task force,
Wessells believed that the DoD members did not wish to discuss these issues because it opened
the possibility of challenging existing military regulations. 1283 The topic of waterboarding may
have been discussed informally between Wessells and Lefever, too, though not likely with the
larger group. 1284
Behnke told Sidley that he believed that the statement was removed at Breckler’s behest.
Behnke recalled that Breckler wanted to remove the reference to research. Breckler said it was
possible that he asked Behnke to remove the language, but was unsure. In analyzing the draft
report language anew with us, however, he stated that the 8.07 language was inconsistent with
the draft statement’s first sentence about psychological distress, since Standard 8.07 specifically
dealt with deception in research only and not with various types of psychological
consultations. 1285
When asked why he removed the full paragraph instead of only the statement citing
Standard 8.07 (or refine the “legitimate purpose test” another way), Behnke responded that he
likely viewed the paragraph as one unit; once the research sentence was gone, then he thought to
remove the full paragraph. Behnke also said the provision could be read broadly, where people
could justify harmful acts in the name of preventing future acts of violence. Behnke was not sure
why he did not refine the test—perhaps outlining a rule that always barred psychological

1283

Wessells interview (June 11, 2015).

1284

Wessells noted that he and Lefever had a conversation about waterboarding during one of the meeting
breaks. He recalled that Lefever was waterboarded during his Navy SERE training (Lefever confirmed
this with Sidley) and thought Lefever thought the sensation was terrible (Lefever told Sidley he thought
he was going to die). But ultimately, Lefever stated, the experience was bearable for him. Wessells
thought waterboarding was mentioned in passing during the meeting, but neither he nor other task force
members could recall a specific discussion about that technique.
1285

Breckler interview (June 18, 2015). Brandon’s notes from the second day of the PENS meetings also
appear to corroborate Breckler’s thoughts on the use of Standard 8.07. At the top of the fourth page of
her notes, she wrote “Disingenuous paragraph ‘7th’—distress in [research] [does not equal] stress in
interrogation.” Brandon Notes (undated) (on file with Sidley). The note may suggest that the Standard
8.07 standard—which bars psychologists from deceiving research participants about research that could
“cause physical pain or severe emotional distress”—is not the same as stress caused during an
interrogation. Brandon later added to Sidley that the note was “an assertion that we have no research on
interrogation methods that use abusive methods since research can't use such on subjects.” Email from
Brandon to Sidley (June 21, 2015).

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distress, allowing it in limited circumstances, making it broader, or perhaps using guidelines in
the Geneva Conventions 1286—and instead removed it from the next draft entirely. 1287
The statement was ultimately replaced by an unrelated issue about reminding
psychologists that the individual being interrogated “may not have engaged in untoward
behavior” and may not have useful information. 1288 In analyzing a series of handwritten notes
from members, 1289 Banks was the one who recommended this new statement. 1290 Arrigo told
Sidley that she had originally raised a concern about interrogating detainees who were innocent
and that Banks drafted the wording for Behnke’s consideration. 1291 Given that Banks was
against the draft statement’s minimal restriction on causing psychological distress, and given his
overarching goal to keep the PENS report in concert with military guidance, it is likely that
Banks appropriated Arrigo’s concerns both to curry favor with Arrigo and to block the use of any
language in the report that assessed the validity of certain techniques. This assertion is further
supported by later conversations between Behnke and Banks after the report was finalized about
how the key issue that people will ask about that is not addressed in the report is the amount of
psychological distress that is acceptable (discussed in the PENS Aftermath section).
The third draft of the report still included a reference to “psychological distress,” but that
was removed entirely by the fourth version of the draft report: 1292
Third draft report (circulated at the start of June 26):
[P]sychologists who consult on interrogation techniques are mindful that the
individual being interrogated may not have engaged in untoward behavior and
may not have information of interest to the interrogator. When psychologists
serve as consultants to interrogation, and especially when such consultation
concerns techniques that potentially generate psychological distress, psychologists
1286

Article 17 of the Third Geneva Convention, for example, provides readily-adaptable language on the
parameters for questioning prisoners. See https://www.icrc.org/ihl/WebART/375590022?OpenDocument (“No physical or mental torture, nor any other form of coercion, may be inflicted
on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to
answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any
kind.”).
1287

Behnke interview (May 29, 2005).

1288

PENS Report.

1289

HC00017712. We identified each PENS member’s handwriting (either in person or by asking for a
handwriting sample) and matched them to this set of handwritten notes. Banks informed Sidley that the
second and last pages of the notes came from him.
1290

Id. (see last page).

1291

Arrigo interview (June 5, 2015).

1292

See PENS Drafts #3 & #4 (on file with Sidley) (emphasis added). Arrigo archived all versions of the
PENS drafts and final reports as part of the PENS Archives housed at the University of ColoradoBoulder. We append a full set of drafts from Arrigo, which include her notes in the margins of these
drafts. Please note that there are two copies of the fourth draft of the PENS report in these files.

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consider whether the techniques consulted upon would be deemed ethically
appropriate should such determinations related to guilt and relevance ultimately
be made. At all times psychologists remain mindful of the prohibitions against
engaging in or facilitating torture and other cruel, inhuman, or degrading
treatment. Psychologists inform themselves about research regarding the most
effective and humane methods of obtaining information and become familiar with
how culture may interact with the techniques consulted upon. (Ethical Standards
2.01, Boundaries of Competence; 2.03, Maintaining Competence; and 3.01,
Unfair Discrimination)
x

It appeared that Gilfoyle flagged the language in the third draft as confusing. 1293 After
the bold section above, she wrote “I’m not sure it’s clear what you mean here –if they are
innocent or had no info , would the tactics used stand up to scrutiny? . . . It also sort of
raises the specter that they may just be detained indefinitely and never have such a
determination made.” Behnke responded to Gilfoyle that this statement represented an
“extremely complicated issue,” that was “one of the most challenging ethical issues in
this whole area.” 1294 This exchange may have led to the changes in the fourth draft,
which avoided using the term “psychological distress” at all.

Fourth draft report (circulated at the end of June 26):
[P]sychologists who consult on interrogation techniques are mindful that the
individual being interrogated may not have engaged in untoward behavior and
may not have information of interest to the interrogator. This ethical obligation is
not diminished by the nature of an individual’s acts prior to detainment or the
likelihood of the individual having relevant information. At all times
psychologists remain mindful of the prohibitions against engaging in or
facilitating torture and other cruel, inhuman, or degrading treatment.
Psychologists inform themselves about research regarding the most effective and
humane methods of obtaining information and become familiar with how culture
may interact with the techniques consulted upon. (Principle E, Respect for
Peoples’ Rights and Dignity; Ethical Standards 2.01, Boundaries of Competence;
2.03, Maintaining Competence; and 3.01, Unfair Discrimination)
This draft statement seven was the one instance across any of the drafts that aimed more
specifically at the techniques that may or may not be used in an interrogation. No version of it
survived the later drafts and final report. To be sure, it does not appear in anyone’s notes that
this statement impassioned as much debate as the issues of international law. But the dynamics
of the room—the number of DoD members, Newman’s role as leader of several discussions,
Behnke’s role as lead drafter, members admonishing Arrigo on the first day, the promise of the
meetings and report being an initial step in the process—likely stifled talks on this and other
statements in the report.

1293

APA_0040786; APA_0040787.

1294

APA_0048590.

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PENS TASK FORCE, & INITIAL AFTERMATH

Other day two conversations

The conversations from the second day of PENS meetings largely followed from the first
day. Some observations are listed below: 1295
x

Gelles retained an absolute position on psychologist never conducting interrogations
while the military members of the task force disagreed.

x

Newman continued to lead conversations of the task force and reiterated the need to keep
the report’s message direct as possible (ex: Arrigo’s notes: “Don’t go too far in
discussing psychologists as interrogators so as not to expose ourselves and complicate the
issue.”).

x

Behnke, too, raised similar concerns as Newman (ex: Arrigo’s notes: “Attend to level of
specificity in document so as not to cause difficulties.”).

x

Wessells continued to press for international standards in the document or a discussion of
specific techniques. Behnke cited to some of the international legal standards in the
subsequent draft document as discussed below. Pointedly, Wessells was noted as saying
that “disorientation techniques remain,” and that psychology’s “reputation . . . depends on
this document.” Gelles was noted as saying that he “[w]ants to postpone” a further
discussion on these issues.

x

Lefever provided additional examples of what he believed were permissible interrogation
tactics.

x

Banks and others raised the issue of psychologists’ role in preventing behavioral drift.
This psychologist role was added in the next draft version of the report and part of the
final report.

x

Arrigo brought up the idea of a casebook with examples and received support from
several task members and observers about his idea, including Newman. As discussed
later, the idea was never realized within the task force.

x

Gravitz joined the group as an observer and offered a few comments during the meeting.
At one point, Wessells recalled to Sidley, that Gravitz offered comments on the use of
coercive methods. Wessells and Arrigo thought the methods would never work but
Gravitz disagreed, stating that some methods were needed under “certain
circumstances.” 1296

Anton emailed Koocher after the second day of the meetings and provided a summary
that highlighted problems with Arrigo and his approval of the “DoD folks”:

1295

All observations come from the Arrigo PENS Meeting Notes (June 25, 2005), unless otherwise noted.

1296

Wessells interview (Mar. 11, 2015).

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Jean Maria got pretty loose today - e.g. questioning why the American
Psychological Association was called the American Psychological Association.
She did alot of splitting too, in my opinion, and was quite difficult. She continued
to take notes, writing on the margins of our in-progress papers in spite of
assurances yesterday that she wouldn't. I think she aliented [sic] everyone but
Mike Wessells [sic] and I'm not too sure about his feelings. I have to say that
DoD folks were gentle, respectful, and open to her, but also were able to express
their views. They are very interested in a continuing dialogue with APA and were
pleased to be there and look forward to collaborating on other projects.” 1297
Behnke sent a revised draft of the report after midnight to Gilfoyle, Koocher, Anton,
Farberman, and Moorehead-Slaughter for comment ahead of the final task force meeting. 1298
Notably, Farberman commented that the report include some kind of disclaimer so the statements
are not construed “as APA saying torture or inappropriate treatment has taken place.” 1299 The
next version of the report (and final report) clarified at the beginning of the report that the task
force’s changes “did not include an investigative or adjudicatory role, and as a consequence
emphasized that it did not render any judgment concerning events that may or may not have
occurred in national security related settings.” 1300
D.

Day Three: June 26, 2005

The task force met for half the day on Sunday, the final day of meetings. Behnke
distributed copies of a third draft version of the report. 1301 Notably, the document added that
psychologists do no engage in torture as well as “cruel, inhuman, and degrading treatment,”
which tracked the U.N. Convention Against Torture that Wessells, Thomas, and Arrigo
championed. At some point, Arrigo’s notes indicate that Newman commented that if the
document had no new ethical principles, then APA governance could approve the report quicker.
Newman pronounced that if there were new principles within the document, then it could take up
to a year to approve the full document. 1302 The third draft also added a point on how
psychologists could prevent behavioral drift (“How the combination of a setting’s ambiguity
with high stress may facilitate engaging in behaviors that cross the boundaries of competence
and ethical propriety.”). The remaining draft reports are appended to this report and come from
Arrigo’s collection of the draft reports. As such, they contain Arrigo’s handwritten notes on the
draft reports.
Farberman also joined the meeting by conference call to discuss talking points for the
report. Farberman told Sidley that it was very common for her join various task forces to discuss

1297

APA_0040795.

1298

APA_0040782.

1299

Id.

1300

PENS Report.

1301

See PENS Draft #3 (on file with Sidley).

1302

Arrigo PENS Meeting Notes (June 26, 2005).

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these issues. 1303 Arrigo’s notes indicate Farberman made comments about not implying that
torture occurred at Abu Ghraib or Guantanamo Bay . 1304
Banks also mentioned that he intended to personally brief the Army Surgeon General on
the report’s findings. 1305
By the evening of June 26, Behnke revised the document a fourth time based on the task
force’s final comments and forwarded to Moorehead-Slaughter to circulate to the group.
Behnke, per conversations with Wessells, added a footnote citing to the Geneva Conventions and
the U.N. Convention Against Torture. 1306 Each member approved of the final fourth draft
version of the report that evening.
Shortly thereafter, Shumate attended a meeting with William Winkenwerder, thenAssistant Secretary of Defense for Health Affairs. Kelly sent an email on June 28 informing
Behnke, Mumford, Breckler, and Newman. She noted that Shumate described the “thrust” of the
PENS meetings and that Winkenwerder was “pleasantly astounded” that APA tackled the issue
and requested a copy of the report. 1307
E.

PENS Report Analysis

The full PENS Report is appended to this report. 1308 The final report contained an
overview and introduction to the report, followed by “Twelve Statements Concerning
Psychologists’ Ethical Obligations in National Security-Related Work and Commentary on the
Statements,” conclusion and non-consensus issues sections, and 10 recommendations. The
report said that psychologists could serve as consultants to national security interrogation
consistently with the Ethics Code, and articulated two high-level limitations on that activity,
without further significant definition: psychologists could not be involved in torture or cruel,
inhuman or degrading treatment, and psychologists attempted to ensure that interrogation
methods were safe, legal, ethical and effective. As the evidence shows, these high-level
limitiations were intentionally chosen by Behnke because they reflected what Banks wanted and,
by extension, reflected what key parts of DoD wanted.
1.

Psychologists as “safety officers”

A foundational question that underpins the PENS report, and stressed by Behnke and
Banks to us throughout our investigation, is the notion that having psychologists involved in
interrogations by observing the interrogators was of critical importance in ensuring the safety of
1303

Farberman interview (May 19, 2015).

1304

Arrigo PENS Meeting Notes (June 26, 2005).

1305

Id.

1306

See PENS Draft #4 (on file with Sidley). Wessells suggested adding the citations in one other section
of the report, which Behnke did.
1307

APA_0026757.

1308

PENS Report.

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the detainee. A psychologists’ training in human behavior, the argument goes made them
uniquely situated to watch for and stop “behavioral drift”—the phenomenon identified in Philip
Zimbardo famous Stanford prison experiment and elsewhere that those with physical power over
others who use that power to cause discomfort or pain to others will often tend to drift toward
greater and greater uses of that power unless stopped. Banks, along with Lefever and others who
taught at military SERE schools, say that this is a key and legitimate role for psychologists at
SERE, since without such a “safety monitor,” even SERE instructors pretending to be captors of
U.S. soldiers may go too far. In fact, when Air Force SERE were brought to Guantanamo Bay in
December 2002 to provide guidance about “employing ‘SERE’ techniques during detainee
interrogations,” their Standard Operating Procedure memo used the term “Watch Officer” as a
standard position within the SERE procedure (although the memo did not specify that it needed
to be a psychologist). 1309
Psychologists ranging from the APA’s leading critics to PENS participants Brandon,
Gelles, and Shumate 1310 have expressed doubt that psychologists are uniquely or well situated
for this role, especially outside of a SERE training context. For purposes of our discussion here,
we assume that having someone monitor interrogators for behavioral drift would be an important
part of the interrogation process if the interrogator is intentionally inflicting some form of
physical coercion or psychological distress (as in SERE training), and it seems reasonable that
the training and experience of psychologists would make them among the best candidates for
playing the role of “safety monitor” or “watch officer” by watching the behavior of the
interrogators.
However, Banks, Dunivin, Behnke, and others who emphasize this role for psychologists
in interrogations and who tend to use it as the primary (and positive-sounding) justification for
including psychologists in the interrogation support process 1311 are also quick to say that
psychologists should be included in interrogation support because they help make the
interrogations “effective.” This was one of the four pillars of the Banks/Dunivin “safe, legal,
ethical and effective” formula that the PENS report adopted, and the PENS report made it an
ethical obligation of psychologists working on interrogations to try to rely on methods that are
“effective.”
1309

JTF GTMO “SERE” Interrogation Standard Operating Procedure, Guidelines for Employing “SERE”
Techniques During Detainee Interrogations (Dec. 10, 2002), available at
http://nsarchive.gwu.edu/torturingdemocracy/documents/20021210.pdf.
1310

Brandon told Sidley that she questioned how true it was that psychologists were important to national
security efforts. She also made, as she put it, some “snide” remarks in her notes about the conversation
surrounding the utility of psychologists as monitors. Brandon Notes (undated) (on file with Sidley)
(“why are [psychologists] so wise? Informed?); Brandon interview (May 26, 2015). In addition, Arrigo’s
notes indicate that Gelles “disagrees strongly with the implication that [psychologists] should monitor” as
it was inconsistent with psychologists’ role in consulting on interrogations. Arrigo PENS Meeting Notes
(June 25, 2005). Shumate told Sidley that he “question[ed]” how much value psychologists brought to an
interrogation setting. He added, though, that with specific training for psychologists working in these
settings, interrogations could move in “the right direction” but that they did not serve a critical role.
Shumate interview (June 24, 2015).
1311

See PENS Report (“psychologists are in a unique position to assist in ensuring that [interrogation]
processes are safe and ethical for all participants”).

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Their theory is therefore that when psychologists are involved in an interrogation of a
non-cooperative foreign detainee considered an “unlawful combatant” suspected of knowing
important information, in an environment of intense pressure to produce actionable intelligence
to protect the American public and in which the protection of the criminal justice system do not
apply, psychologists should be playing two roles at the same time – (1) strict monitor of the
interrogator, including promptly telling the interrogator (or telling his supervisor or commander
to tell him) that he is going too far and needs to stop, and (2) partner of the interrogator in trying
to engage in interrogation techniques that will be effective in getting the detainee to be
cooperative and to tell the truth about what he knows.
This strikes us either as naïve or intentionally disingenuous. The pressures on the
psychologist in this situation not to stop the interrogator from becoming more aggressive are
very significant, both because of the dynamic that the interrogator and psychologist are working
together to make the interrogation effective and likely have a need to work together on an
ongoing basis on other interrogations, and because the psychologist likely would be utilizing his
subjective judgment in telling the interrogator that he has gone “too far” (a judgment that can
easily be subject to criticism and second guessing) rather than an objective judgment based on
clear lines drawn by external sources (e.g., DoD or APA guidelines). One would think that
mature, confident psychologists primarily committed to the role of “safety monitor” would be
able to overcome these pressures in most situations. But this would depend on the individual
psychologist, and the context of the individual situation. In other words, it might work or it
might not. As an ethics expert pointed out to us, an independent psychologist monitor outside
the chain of command would have a better chance at success with this responsibility. 1312
Just as it makes little sense to say that SERE techniques can be “reverse engineered” for
detainee interrogations with little fear of lasting psychological damage because they are used
safely in controlled environments on informed, consenting U.S. soldiers, so too does it make
little sense to say that a “watch officer” will always be solely motivated to stop an aggressive
interrogator because it works successfully in SERE training when there is no actual concern that
public safety will actually be compromised if the “interrogators” do not actually get the
information from the pretend “detainee.” This is especially true when the “watch officer” is also
being asked to help make the interrogation as effective as possible.
If Banks and Behnke really believed that the only real reason a psychologist needed to be
involved in interrogations was to keep them safe by playing the role of “safety monitor,” they
could have written the PENS report to limit a psychologist’s role in interrogations to this
function. The report could have said that psychologists may support interrogations only by
playing the role of safety monitor to ensure the safety of the detainee, by watching the
interrogator to ensure that behavioral drift does not occur. But as Gelles pointed out, this would
mean that a psychologist could not consult in the way psychologists typically do in law
enforcement situations, by consulting on interrogations and investigations to make them
effective— in environments in which the protections of the criminal justice system apply. And

1312

Emails from Sveaass to Sidley (June 17, 2015 & June 18, 2015).

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Banks, Dunivin and DoD, and Behnke and APA, did not want to impose such a significant limit
on the involvement of psychologists in national security operations. 1313
2.

Need for specificity and limits

We heard from APA defenders during the investigation that they only intended the PENS
task force report to allow psychologists to support interrogations by recommending rapportbuilding techniques, not physical or aggressive ones. But the report does not say this, although it
could have. Given the public awareness of the Bush Administration’s narrow understanding of
key terms like “torture” and “inhumane” and its claim that the Geneva Conventions did not
apply, the widespread media reports about abusive interrogation techniques, and the explicit
discussions at the PENS meeting and the media about specific techniques like stress positions
and sleep deprivation, it was obvious to everyone involved in the PENS task force that national
security psychologists would be asked to advise on interrogation techniques that went well
beyond rapport-building. The PENS Task Force report could have said that psychologists may
support interrogations only by recommending techniques that constitute rapport building. But as
with the other limitation, this was not consistent with Banks’s and DoD’s preferences (and
therefore Behnke’s and APA’s) that the role of psychologists not be limited beyond whatever
constraints DoD itself had in place.
Our consternations with the the lack of specifity in the report were solidified through
conversations with three prominent academicians with broad experience in issues of ethics,
torture, and human rights: (1) Nancy Sherman, Philosophy Professor at Georgetown University
and consultant to the U.S. armed forces; 1314 (2) Nora Sveaass, Psychology Professor at the
University of Olso and former member of the United Nations’ Committee Against Torture; 1315
and (3) Janel Gauthier, President of the International Association of Applied Psychology and
primary drafter of the “Universal Declaration of Ethical Principles for Psychologists.” 1316 At
bottom, all three raised concerns that key terms used in the PENS report—be it, “torture,” or
“cruel, inhuman, and degrading treatment,” or “safe, legal, ethical, and effective”—were not

1313

Some critics who have correctly alleged that some APA/government collusion was behind the PENS
Task Force result further allege that APA’s motive must have been based on the Justice-Departmentmemo rationale, under which harsh interrogation techniques are not torture if a psychologist or other
relevant expert says the technique to be applied will not cause severe physical or psychological suffering.
We did not find evidence that this Justice-Department-memo rational was part of the thinking or motive
of APA officials though, again, we did not have deep access into various CIA or DoD-level interactions
during this period.
1314

For a full biography, see http://explore.georgetown.edu/people/shermann/.

1315

For a full biography, see http://www.sv.uio.no/psi/english/people/aca/norasv/.

1316

For a full biography, see http://www.ecp2015.it/international-scient/janel-gauthier-2/. For more on
the Universal Declaration, see http://www.iupsys.net/about/governance/universal-declaration-of-ethicalprinciples-for-psychologists.html.

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well-defined and left an inordinate amount of flexibility for government entities to dictate what
was permissible. 1317
Sherman thought the report was “peculiarly abstract,” and “evasive.” 1318 Sveaass stated
it was “very sad” and “strange” that a specific definition of torture was not included in the report,
particularly since the United States ratified the U.N. Convention Against Torture and that its
definition of torture was “absolute.” 1319 Gauthier believed that several terms in the report were
open to many interpretations and worried about the lack of specific human rights definitions in
the document. He believed that the document would have been better served if it plainly defined
what “torture” was and what specific techniques were permissible and under what
circumstances. 1320
Both Sveaass and Sherman raised the point that, because of the known institutional
pressures and pronouncements at the time of the PENS process regarding interrogation tactics
and the lack of legal safeguards for detainees (at least when compared to prisoners in the U.S.
criminal justice system), it behooved APA to provide specific guidance to psychologists in these
settings to comprehend and combat techniques that were permitted and those that were not. 1321
Sveeass emphasized that the report needed additional context—the state of detention centers at
Guantanamo Bay, the lack of legal rights for detainees, the reported abuses, the BSCT teams
used in these detainee interrogation settings—in order to better understand the roles and purposes
of psychologists in these settings in the first place. Instead, Sveaass asserted, the report included
a list of ill-defined things psychologists should not do in national security settings. 1322
Sherman made the point that torture was not typically an individual-only activity, but
usually depended on the “corruption of the system” in which multiple actors, some of whom are
1317

Steve Kleinman, a military intelligence officer, also told Sidley that the “safe, legal, ethical, and
effective” framework was not useful, and that clinical psychologists in general were not the best kind of
psychologists to have on BSCTs in the first place. Kleinman interview (May 22, 2015).
1318

Sherman interview (June 5, 2015).

1319

Sveaass interview (June 11, 2015). Article I of the Convention Against Torture defines torture as
follows: “For the purposes of this Convention, the term ‘torture’ means any act by which severe pain or
suffering, whether physical or mental, is intentionally inflicted on 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
capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful
sanctions.” Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, available at http://www.ohchr.org/EN/ProfessionalInterest/Pages/CAT.aspx.
1320

Gauthier interview (June 15, 2015). Gauthier raised the point that having absolute statements in
ethical guidance could also be problematic since certain situations may call for different ethical
considerations. To Gauthier, the report would have been better served if it specified the ethical
considerations in various scenarios.
1321

Sherman interview (June 5, 2015); Emails from Sveaass to Sidley (June 17, 2015 & June 18, 2015).

1322

Emails from Sveaass to Sidley (June 17, 2015 & June 18, 2015).

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high-level, make decisions and take actions that allow it go forward. 1323 The structural taint of
government polices was apparent by the time of the PENS report (ex: Rumsfeld Working Group,
OLC memos, Abu Ghraib and Guantanamo Bay abuses). In fact, APA regularly discussed
media reports about these issues. Thus, APA should have been on high alert that professionals—
like psychologists—participating in that system needed specific ethical constraints and
guidelines to operate in that system, because such a system was also typically accompanied by
intense pressure to conform and to follow orders to engage in abusive activity. These structural
pressures are not theoretical. It is the situation that Banks and James argued that John Leso
found himself in ahead of the Mohammad al-Qahtani interrogation in 2003. 1324
Instead, the PENS report banned participation in torture and CID but avoided defining
these terms at a moment where precision and explanation were crucial for the psychologists
working in these interrogation settings.
Behnke contested the specifcity point with Sidley, noting that “prohibiting specific
techniques” was not “initially central to the work of APA, or several other associations, that
addressed the issue of member involvement in interrogations.” 1325 Behnke went on to cite
relevant provisions from the American Medical Association (“AMA”), the American Psychiatric
Association (“ApA”) and the World Medical Association’s (“WMA”) Declaration of Tokyo as
examples where none of these provisions prohibited specific techniques.
Behnke’s assertions belie what happened at PENS and with other organizations,
including the military. For one, the background materials provided to each task force member
included descriptions of harsh techniques used at the time and the controversy surrounding them
(discussed earlier) , so there was an awareness that harsh techniques were occurring in detainee
settings. Second, specific techniques were not discussed during PENS because participants like
Newman, Banks, Koocher, and Behnke avoided addressing specifics during the PENS meetings.
Other DoD members, even if they expressed an interest in having boundaries or limits on what
psychologists could do, did not promote the need for specific language in the report. Wessells,
Thomas, and Arrigo’s quest to add international human rights standards within the PENS
report—one way to provide specific guidance for a psychologist—was met with stiff resistance
by the military majority. In addition, former Chief of Staff for the Assistant Secretary of
Defense for Health Affairs, Thom Kurmel, told Sidley that the “key” debate in 2005 among his
DoD colleagues was “how far” health professionals could go in interrogation settings and less
what professional associations said about their presence. 1326 So the issue of specific techniques
and what was permissible was underscored by media reports, by task force members, and by the
military.

1323

Sherman interview (June 5, 2015).

1324

Both James and Banks explained to Sidley that Leso had been placed in an arduous situation where he
received pressure from his Command to concoct an interrogation plan with which he was not comfortable.
Leso is discussed further later in this report.
1325

Email from Behnke to Sidley (June 3, 2015) (emphasis in original).

1326

Kurmel interview (June 16, 2015).

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Regarding other organizations’ positions, a brief look at the AMA, ApA, and WMA
positions will explain why specific techniques were not listed. The AMA defined what a coerced
interrogation was in its analysis: “threatening or causing harm through physical injury or mental
suffering.” 1327 The ApA banned its professionals in those settings outright, so there was no need
to list prohibited techniques. 1328 And the WMA’s Declaration of Tokyo defined torture at the
outset of the document:
For the purpose of this Declaration, torture is defined as the deliberate, systematic
or wanton infliction of physical or mental suffering by one or more persons acting
alone or on the orders of any authority, to force another person to yield
information, to make a confession, or for any other reason. 1329
Another psychological association, the British Psychological Society, also came out with a
statement in February 2005 that condemned the use of torture and cruel, inhuman, and degrading
treatment in interrogations. Its definition of torture combined more general terms with examples
of specific techniques. 1330
The PENS report did none of these things. It provided no definition of torture or CID,
provided no list of prohibited interrogation techniques, and did not ban psychologists from these
settings writ large.
Behnke also claimed that prohibiting specific techniques at the time would have raised
concerns that the group may unwittingly exclude a technique and, therefore, provided an explicit
loophole for interrogators to exploit. It was not until March 2007, Behnke argued, when he
attended an event at the Wright Institute with Professor Alfred McCoy, that he realized that there
was a fairly consistent list of techniques that interrogators used consistently and he incorporated
this thinking into what ultimately became the 2007 APA Resolution that banned the use of
specific techniques. 1331 This assertion, too, is incorrect. Behnke and Banks engaged in a

1327

Opinion 2.068 – Physician Participation in Interrogation, American Medical Association (Nov.
2006), available at http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medicalethics/opinion2068.page?.
1328

Position Statement on Psychiatric Participation in Interrogation of Detainees, American Psychiatric
Association (May 2006), available at
http://www.psychiatry.org/File%20Library/Advocacy%20and%20Newsroom/Position%20Statements/ps2
006_Interrogation.pdf.
1329

Guidelines for Physicians Concerning Torture and other Cruel, Inhuman or Degrading Treatment or
Punishment in Relation to Detention and Imprisonment, World Medical Assembly (May 2006), available
at http://www.wma.net/en/30publications/10policies/c18/.
1330

APA_0085552 (“For the purpose of this Declaration, torture is defined as the deliberate, systematic or
wanton infliction of physical or mental suffering by one or more persons acting alone or on the orders of
any authority, to force another person to yield information, to make a confession, or for any other reason.
This definition includes the use of threats, insults, sexual, religious or cultural degradation or degrading
treatment of any kind.”).
1331

Behnke interview (June 8, 2015); see also Historian Alfred McCoy Speaks on U.S. Torture Program,
DailyKos, available at http://www.dailykos.com/story/2007/04/25/327485/-Historian-Alfred-McCoy-

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dialogue as early as October 2006 about adding specific techniques as part of a substitute motion
in response to Neil Altman’s moratorium resolution, discussed further in the next section of this
report. What is more, Behnke’s worry that a non-listed technique could be used had an easy
resolution—to insert language that the list was not exhaustive and that the underlying principle
was about not inflicting abuse or harm upon individuals. 1332
From his perspective, Banks thought it was inappropriate for an ethics-related document
like the PENS report to contain guidance on specific techniques used in an interrogation. He told
Sidley that he believed a deeper discussion about sleep deprivation, for example—how long it
could be used for, what would constitute sleep deprivation, whether late night interrogation
settings were permissible—were best reserved for the military in some form in the Army Field
Manual or another DoD policy document. He contended that the report established clear
boundaries on other issues related to dual roles, the use of medical records, and the limits of
confidentiality. 1333
James also welcomed specific guidance for psychologists, but stated that he did not need
the PENS report to provide this guidance for him. James spoke passionately to Sidley about how
the key question he asked when consulting on an interrogation was whether he would be
comfortable with those techniques being used on his wife or son. At the same time, he thought
the document should be aspirational as he believed other ethical guidelines were. He did not
want the report to make military interrogations “too restrictive” because the “military guys” were
worried that the report’s limitations could transfer to psychologists working in non-military
interrogation settings and unnecessarily limit what techniques were used. He posited that some
critics may argue for a ban on raising one’s voice or swearing at a prisoner in any interrogation.
James admitted, however, that having an aspirational document with few specifics likely did not
answer all the questions psychologists in the field may have had about the ethical duties in
specific settings. 1334
Shumate explained to Sidley that the task force should not have gotten “bogged down” in
the “granular” details of the topic at first and, instead, try and understand the “forest” from a
“30,000 foot view.” Thereafter, Shumate declared, additional steps could be taken to address
specifics, but he thought that neither APA or psychologists were in a position to properly address
the various legal issues that may arise with interrogation practices. 1335 Mixing metaphors aside,
Shumate’s explanation makes little sense in the context of providing ethical guidance to

Speaks-on-U-S-Torture-Program-video#. After the March 10 event, Behnke had drafted a statement on
behalf of the Ethics Committee on March 19 that listed specific techniques. APA_0064480.
1332

This is exactly what the Ethics Committee did in a March 2007 statement leading up to the 2007 APA
Resolution. APA_0064480.
1333

Banks interview (May 21, 2015).

1334

James interview (June 1, 2015).

1335

Shumate interview (June 24, 2015).

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psychologists in national security settings and, instead, sounds like a pretextual reason about why
the task force report was not more specific.
Implicit in both Banks’s, James’s, and Shumate’s comments is a belief that the DoD was
better-positioned to handle the specifics of interrogation techniques. These same beliefs
permeated Dunivin’s thinking at the beginning of the task force selection process, which
Newman espoused during the PENS meetings. Behnke, too, made comments related to avoiding
the specifics during the meetings. In the end, the report was general enough that it gave the DoD
the flexibility to make more specific calls on what was permissible despite troubling institutional
pronouncements on what constituted torture and what protections detainees ought to receive.
A vivid example of how little guidance the PENS report provided was presented during
our interviews with Banks and Behnke. Sidley separately posed to both Behnke and Banks
whether interrogations involving certain kinds of stress positions would run afoul of the “safe,
legal, ethical, and effective” analytical framework or the PENS report in general. Neither could
provide a clear answer based on these two sources alone. 1336 Behnke struggled to respond to
which types of stress positions, each with varying levels of pain to the detainee, would be
considered “safe.” His response shifted to the effectiveness point—technically an incorrect
approach since a psychologist was supposed to have gone the four terms in order—where he
noted that, even if a particular position was safe, it likely was not effective. When asked how he
knew that, Behnke believed that studies about interrogations would dictate that rapport-building
was the best way to interrogate a detainee. 1337 If this was true and others agreed, then the PENS
report could have explicitly mentioned that rapport-building was the best way to handle detainee
interrogations—it did not.
Banks explained that, for him, the dividing line of the “safe” prong of the analysis was
whether the detainee was put in significant increased risk of harm with a technique. Assuming a
particular stress position was safe, Banks conceded that the legality point was also open to
interpretation depending on what pronouncements were in effect at the time. In 2003, for
example, there was Army Regulation 190-8 that governed military personnel, but there were also
pronouncements from the Secretary of Defense that supposedly trumped 190-8 declaring that
detainees were not covered under the Geneva Conventions and that certain interrogation methods
were permissible. Assuming a stress position technique was also legal, Banks perused the Ethics
Code to determine whether the techniques were “ethical” under the third prong. Banks thought
that the technique violated the principles of the Ethics Code but not necessarily any of the
specific rules. At this point, Bank said he would turn to the PENS report for the answer. When
he did, he pointed to statement one of the PENS report and said that this particular kinds of stress
position were “degrading” (he speculated placing a detainee in a “push-up” position might be
permissible, but not hanging a detainee from a ceiling). When asked how he knew this, Banks
admitted that this conclusion was from his experience and viewpoint, not necessarily from a
definition in the report. 1338 Banks later stated that the PENS report “was not remotely sufficient”

1336

Behnke interview (May 29, 2015); Banks interview (May 21, 2015).

1337

Behnke interview (May 29, 2015).

1338

Banks interview (May 21, 2015).

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but that it helped establish the training standards in place today for all BSCTs.1339 This
training—Banks noted before that it lasted six weeks—would solidify answers to these and other
questions. 1340 Banks’s response begs the question—how useful can a report be when you need
six additional weeks of training to understand what you can and cannot do?
3.

Other report issues: do no harm, medical records, mixing roles,
confidentiality, enforceability

There is other questionable language in the report as well:
Introduction: “Do No Harm” omission
Notably, the quoted portion of Principle A: Beneficence and Nonmaleficence in the
report excludes the opening sentence involving “do no harm.” Instead, the Principle A’s second
sentence is quoted first: “In their professional actions, psychologists seek to safeguard the
welfare and rights of those with whom they interact professionally and other affected persons.”
Behnke told us he could not recall why he did not include the “do no harm” sentence but
did not think its exclusion had much significance. Our conclusion is that because of the
ambivalence within the DoD task force members about how to define “harm” as it relates to
physical pain and distress, and the desire by Behnke and Banks not to take a hard-and-fast
position that psychologists in interrogation situations can never “do harm” (despite the Ethics
Code principle), Behnke intentionally left out the “do no harm” language.
Addressing this issue specifically would have been feasible in a wide variety of ways, for
instance by providing a non-exclusive list of prohibited specific techniques, or by describing
what was prohibited by using words such as “abuse,” “physically coercive,” or “intentionally
inflicting physical pain or mental suffering other than mental suffering incidental to lawful
sanctions.” The decision not to do so reflects a desire to keep the PENS report at a high level of
generality at Banks’s request.
Statement Two: Ethical responsibility to report inappropriate acts
A secondary portion of the the second statement cites to ethics Standard 3.04, Avoiding
Harm, to support the claim that psychologists “guard against the names of individual
psychologists being disseminated to the public,” since it could expose a psychologist. Standard
3.04 cites to minimizing harm to third parties, research participants, and organizational clients,
but makes no mention of peers or colleagues. Behnke explained that the issue of safety was top
of mind for several participants and that is how this statement took shape. 1341
Statements Three and Six: Not using medical information to detainee’s deteriment and multiple
relationships
1339

Email from Banks to Sidley (June 1, 2015).

1340

Banks interview (May 21, 2015).

1341

Behnke interview (May 29, 2015).

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Critics have argued that Statement Three contains a loophole: while the rule states that
psychologists in interrogation support roles cannot use an individual’s medical record “to the
detriment of the individual’s safety and well-being,” it does not explicitly bar access to medical
records or explicitly bar other ways the records could be used, such as for creating an
interrogation strategy. 1342 Banks, and to a lesser extent James, pushed to include this carve out
language so that a psychologist would have the necessary insight to determine whether a
legitimate interrogation technique (such as providing a cooperative detainee with a candy bar)
might cause health problems (by seeing that the detainee was diabetic, for instance). Because of
these requrests, the PENS report allowed this access.
Behnke admitted that some people could have circumvented the statement’s
restrictions. 1343 Statement Six, in theory, may provide a stop gap when it demands psychologists
refrain from “mixing potentially inconsistent roles such as health care provider and consultant to
an interrogation.” 1344 Yet a later correspondence in October 2006 between Banks and Behnke
casts doubt upon whether these two rules were ever envisioned to work together in this way.
In the October 2006 correspondence, BSCT Carrie Kennedy informed Behnke that
BSCTs were “upset” after being excluded from a Command meeting that discussed medical and
mental health information on detainees. 1345 Behnke immediately informed Kennedy and Banks
that sitting in on these meetings and receiving this information would violate the PENS report’s
Statement Six. Kennedy responded that BSCTs could argue that sitting in on meetings was
permitted under PENS report Statement three since no BSCT would use the medical information
against the detainee. 1346 After underscoring to Kennedy the “absolute demarcation” between
these two roles and the “GREAT stir” if it was publically known that BSCTs were present in
such meetings, Behnke forwarded the exchange to Banks and noted that this mindset would
confirm the critique of BSCT teams:
People like Neil Lewis, Bloche, and Marks would claim that this proves their
point: These roles are inevitably commingled. They would argue 1) If
psychologist/consultants aren't going to use the information, why do they need to
be present when the information is discussed? 2) Once the information is in their
heads, is it realistic to expect that they won't use it, even if inadvertently? 3) If the
purpose of communicating information is to keep the interrogation safe, can't the
medical people simply communicate behavioral restrictions to the interrogators?
4) The psychologist/consultant's presence in the room inevitably blurs the

1342

This is the exact criticism that Gregg Bloche later raised with Behnke in late August, as discussed
further below. APA_0042240.
1343

Behnke interview (May 29, 2015).

1344

Id.

1345

APA_0088797.

1346

Id.

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distinction between the two roles, and that “blurring” will likely be felt in other
parts of the interrogation process and/or with interrogation personnel. 1347
Banks’s response to Behnke is telling: “We worded the [PENS] report so that this would
not be precluded. . . . I have access to information that I can misuse all the time, why is this
different?” Banks thought it might make sense to separate the BSCTs because of the “PR risk,”
but not because he thought the PENS report prevented this blurring of relationships to occur. 1348
Behnke and the APA’s position on this issue therefore fit the pattern we saw in this investigation
regarding PENS—positions were taken to please DoD based on confidential behind-the-scenes
discussion and an eye toward PR strategy.
Notably, one way to avoid having these multiple relationships would be if BSCTs were
somehow stripped of their clinical privileges while deployed. In fact, this very possibility was
discussed within the Army Surgeon General’s office ahead of finalizing their BSCT MEDCOM
policy in 2006. 1349 The PENS report, however, nipped that possibility in the bud, and retained
much of what BSCTs were already doing without adding obstacles to their deployments. It is
possible that Banks or Dunivin, the leaders in drafting the 2006 MEDCOM policy, were aware
of these discussions and sought to forestall this issue with a positive outcome in PENS that did
not permit this option.
Statements Three and Nine: medical records and the limits of confidentiality
Another possible loophole with Statement Three is its relationship with Statement Nine
regarding the limits of confidentiality. While Statement Three does not permit the use of an
individual’s medical record to their detriment, Statement Nine reminds psychologists that there
are limits to confidentiality and the “minimum amount of information necessary” can be shared
with someone who has a “clear professional purpose of obtaining the information.” The report
does not explain what a “clear professional purpose” may be, but a June 2005 memorandum
regarding the medical treatment of detainees from William Winkenwerder, then-Assistant
Secretary of Defense for Health Affairs provides several “permissible purposes” of confidential
information: “to prevent harm to any person, to maintain public health and order in detention
facilities, and any lawful law enforcement, intelligence, or national security related activity.” 1350
Several of these permissible purposes could ultimately harm the detainee’s well-being, contrary
to Statement Three.
Statement Four: Barring violations of U.S. law
This statement may raise another loophole with its language that psychologists “do not
engage in behaviors that violate the laws of the United States.” At the time, narrower definitions
1347

Id.

1348

Id.

1349

Crow interview (June 22, 2015).

1350

Memorandum for Secretaries of the Military Departments et al., Medical Program Principles and
Procedures for the Protection and Treatment of Detainees in the Custody of the Armed Forces of the
United States, (June 3, 2005), available at http://www.defense.gov/news/Jun2005/d20050627policy.pdf.

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of torture prevailed through pronouncements from the OLC. The head of the OLC at the time of
PENS, Steven Bradbury, had written a series of memos in May 2005 to the CIA permitting the
continued use of waterboarding and other harsh techniques. 1351 Thus, psychologists could
arguably participate in waterboarding sessions since they did not violate the way the law was
interpreted at the time.
Both Behnke and Banks contended that the statement referred to all U.S. civil and
criminal laws as well. So while slapping or waterboarding may have been permitted under
certain OLC pronouncements at the time, it would violate assault provisions in the U.S. Code,
the Uniform Code of Military Justice, or Army Regulation 190-8. 1352 The report does not make
this point immediately obvious, however.
The statement also makes reference to, at Wessells’s behest, the Geneva Convention
Relative to the Treatment of Prisoners of War and the U.N. Convention Against Torture. But as
discussed earlier, these provisions are not made binding on psychologists in these detainee
settings.
Enforceability of the document
There is also confusion within APA about the enforceability of the PENS report—that is,
could a psychologist have been brought on ethics charges if they violated one of the twelve
statements in the report? Behnke told Sidley that he saw the statements in PENS as
independently enforceable ethical obligations on which a disciplinary case could be brought. 1353
On the other hand, Gilfoyle told Sidley that a complaint would still need to specifically cite the
ethical standard and not the PENS report alone. 1354 We found it very notable that, 10 years after
PENS, the APA Ethics Director had a view about the legal enforceability of PENS that was at
odds with the view of the APA General Counsel.
Research

1351

Memorandum from Steven G. Bradbury, Principal Deputy Assistant Attorney General, to John A.
Rizzo, Senior Deputy General Counsel, CIA, Application of 18 U.S.C. §§ 2340-2340A to Certain
Techniques That May Be Used in the Interrogation of a High Value al Qaeda Detainee (May 10, 2005),
available at http://media.luxmedia.com/aclu/olc_05102005_bradbury46pg.pdf; Memorandum from
Steven G. Bradbury, Principal Deputy Assistant Attorney General, to John A. Rizzo, Senior Deputy
General Counsel, CIA, Application of U.S. Obligations Under Article 16 of the Convention Against
Torture to Certain Techniques That May Be Used in the Interrogation of a High Value al Qaeda Detainee
(May 30, 2005), available at http://media.luxmedia.com/aclu/olc_05302005_bradbury.pdf; Memorandum
from Steven G. Bradbury, Principal Deputy Assistant Attorney General, to John A. Rizzo, Senior Deputy
General Counsel, CIA, Application of 18 U.S.C. §§ 2340-2340A to the Combined Use of Certain
Techniques in the Interrogation of High Value al Qaeda Detainees (May 10, 2005), available at
http://media.luxmedia.com/aclu/olc_05102005_bradbury_20pg.pdf.
1352

Behnke interview (May 22, 2015); Banks interview (May 21, 2015).

1353

Behnke interviews (May 22, 2015 & May 29, 2015).

1354

Gilfoyle interview (May 20, 2015).

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The PENS Task Report contained several recommendations that further research be
conducted in this area. This include a paragraph “encourag[ing] . . . further research to . . .
examine the efficacy and effectiveness of information-gathering techniques, with an emphasis on
the quality of information obtained. . . . Also valuable will be research on cultural differences in
the psychological impact of particular information-gathering methods and what constitutes cruel,
inhuman, or degrading treatment.” A subsequent section recommended that APA encourage
psychologists to engage in research into “methods for gathering information that is accurate,
relevant, and reliable. Such research should be designed to minimize risks to research
participants such as emotional distress, and should be consistent with standards of human subject
research protection and the APA Ethics Code.” The evidence shows that Mumford, Brandon,
Newman, and Gravitz made drafting suggestions regarding the research recommendations, and at
least some of Brandon’s drafting suggestions made it into the final version.
Critics have pointed to some of this language as an indication that APA was intentionally
attempting to provide ethical support for research by the CIA or DoD on detainees at
Guantanamo or elsewhere, or was otherwise attempting to allow for research that involved harsh
interrogation techniques without the proper human-subject-research protections.
We found this a topic on which it was difficult to draw clear conclusions, and our
discussion and analysis of the evidence is discussed earlier in our summary of the second day of
PENS meetings above.
4.

Positive aspects of the report

Application of Ethics Code
At the July 2004 meeting at APA with CIA, DoD and FBI psychologists that was the
precursor to the PENS meetings, CIA psychologist argued that the APA Ethics Code should not
apply to work by psychologist in national security operations, such as interrogations, because a
code written for the ethical treatment of patients was not a good fit for this different situation. 1355
The PENS report explicitly rejected this argument and noted in its introduction that the Ethics
Code binds psychologists whenever they take actions as a psychologist and therefore applies to
work on national security interrogations. The report also made it clear in one of its 12 ethical
guidelines that the Ethics Code provision prohibiting “multiple relationships” meant it was
unethical for a psychologist to both consult on a detainee’s interrogation on behalf of the
government and be the detainee’s health care provider.
These were positive points in the PENS report, and the first one constituted a refusal to
go along with a position previously advanced by the APA’s lead contact at the CIA (although the
CIA appeared be effectively absent at the PENS task force, with the likely exception of Melvin
Gravitz). On the other hand, Behnke described these as clear and easy points to make, and we
note that DoD officials were not opposed to them.
1355

Former CIA colleagues of Hubbard’s, Kennedy and Morgan, told us that prior to this meeting,
Hubbard had given them the opposite impression—that he believed the APA Ethics Code did apply and
should be applied to the involvement of psychologists in interrogations. That Hubbard’s belief was the
one he described during the July 2004 meeting surprised and disappointed them, they said.

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Ethical obligation to detainee
Statement Eleven in the PENS report says that psychologists have “ethical obligations to
individuals” who are not their clients, including “to ensure that their activities in relation to the
individual are safe, legal, and ethical.” In making this statement, the PENS report cites Ethics
Code standard 3.04 (“Avoiding Harm”), which says that “[p]sychologists take reasonable steps
to avoid harming . . . others with whom they work, and to minimize harm where it is foreseeable
and unavoidable.” The PENS report statement does not specifically mention interrogations, but
it implies that psychologists consulting on interrogations have an obligation to follow standard
3.04 with regard to detainees. It does not seem a given that detainees would be considered
“others with whom [psychologists] work,” so this statement can be seen as a significant one.
However, if physical pain and psychological distress do not automatically equate to
“harm,” as discussions with the DoD psychologists indicate, then the failure to provide any
specificity about how to determine whether interrogation techniques that intentionally cause pain
or distress constitute harm means that standard 3.04 may not provide substantial protection. For
instance, Banks’s view was that some stress positions were “safe” and therefore might be
properly used as interrogation techniques. (He cited the “push up” stress position to us as an
example.) Similar, the PENS report refused to take a position on sleep deprivation despite being
asked to do so. In addition, section 3.04 does not prohibit harm—it simply requires
psychologists to take “reasonable steps” to “avoid harming” the individual.
5.

Need for robust ethics analysis

The fact that a robust ethics analysis was not part of this ethics process led by the Ethics
Director was surprising to us but is consistent with two additional observations revealed by our
investigation.
First, Ethics Director Behnke often acted as APA’s chief of staff on this issue, taking the
lead in recommending and drafting virtually all APA decisions and statements on this issue,
whether relating to Board strategy, PR, Capitol Hill lobbying, and APA Council of
Representatives management and strategy, among others. As we have learned in this
investigation, Behnke is a brilliant and highly educated psychologist and lawyer, a nice and
charming person, a highly gifted and fast writer, and a very sophisticated and nuanced strategist
and communicator. Whatever organizational or personality dynamic led to APA allowing him
to play this remarkably expansive role, well beyond the expected duties of APA Ethics Director,
the result was a highly permissive APA ethics policy based on strategy and PR, not ethics
analysis.
Second, APA leaders had decided in the 1990s (before Behnke’s arrival at APA in 2000)
that APA’s ethics policies and practices had been too aggressive against psychologists, and that a
more supportive and protective and less antagonistic ethics program was appropriate. They
wanted a greater focus on ethics education and consultation, and much less of an emphasis on
strict rules and robust enforcement of disciplinary complaints. Revisions to the Ethics Code
focused in part on making its rules more precise to ensure that psychologists had proper notice
about what behavior was considered unethical, and to minimize APA’s litigation risk from
lawsuits by sanctioned psychologists. A provision about how to handle conflicts between legal

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and ethical obligations was expanded so that psychologists could follow court orders or military
orders requiring them to engage in conduct otherwise prohibited by the Ethics Code as long as
they attempted to resolve the conflict first. Behnke was hired specifically to pursue an ethics
program that was more “educative” and fulfilled these goals. During his tenure, APA
disciplinary adjudications plummeted, and the focus was on supporting psychologists, not getting
them in trouble—a strategy consistent with an ultimate mission of growing psychology. 1356
Thus, when the time became ripe to consider what ethical constraints to put on an
important group of psychologists, two factors that could conceivably have created internal
pressure in APA for those ethical constraints to be strong—an Ethics Director focused
exclusively on ethics analysis and perhaps guided by inquiry into systems in which torture
occurred and issues of psychological distress by those in captivity, and an ethics approach that
had a robust focus on the integrity of the profession and the protection of the public—were not
present.
IV.

REPORT APPROVAL

The unusual speed 1357 and Board approval of the PENS report was motivated principally
by the desire of APA Board members Levant and Koocher to (1) create a PR message that would
be perceived as backed not just by a public statement but by actual substance (a new APA ethics
policy) and that could be used to a fluid PR situation perceived as negative, and (2) curry favor
with DoD which communicated that it too wanted a prompt release of the report so it could use
the report for its own purposes (which were both PR and policy purposes). 1358
1356

More about this point is discussed in our findings related to APA’s adjudications process, discussed
later in this report.
1357

As a point of comparison, the American Anthropological Association tasked a Commission in 2007
and 2009 to review various national security-related issues for anthropologists. Commission member
Carolyn Fluehr-Lobban told us that the 2009 report, which expressed disapproval of anthropologists’
presence in DoD’s Human Terrain System program, was completed after the Commission met three or
four separate times over the course of a year for one and two all-day sessions of debate and discussion of
the issues. The report was also completed in response to 2007 media reports of anthropologists’ roles in
this DoD program. Fluehr-Lobban interview (May 15, 2015); see also Final Report on the Army’s
Human Terrain System Proof of Concept Program, American Anthropological Association (Oct. 14,
2009), available at
http://www.aaanet.org/cmtes/commissions/CEAUSSIC/upload/CEAUSSIC_HTS_Final_Report.pdf.
1358

In addition to the intensive press coverage on issues of potential abuse of detainees during this time,
the Commander of the Joint Task Force – Guantanamo was testifying before the House Armed Services
Committee during the week of June 27 on the issue of detention conditions at Guantanamo. Reports of
the hearing make it clear that the Pentagon was attempting to provide positive answers in response to
concerns about abuse and improper conditions at Guantanamo. A report from a third party (APA) saying
that psychologists could ethically be involved in interrogations at Guantanamo had the great potential to
be a positive story for DoD, from its perspective, and the emails show that DoD was thrilled with the
content of the PENS report. Aside from the PR issues, the Army Surgeon General