REPORT TO THE SPECIAL COMMITTEE OF THE BOARD OF DIRECTORS OF THE AMERICAN PSYCHOLOGICAL ASSOCIATION (2015)

INDEPENDENT REVIEW REPORT TO APA

2002 ETHICS CODE REVISION

THE 2002 ETHICS CODE REVISION¹³⁹

BACKGROUND

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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2002 ETHICS CODE REVISION

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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2002 ETHICS CODE REVISION

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

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’s¹⁷⁹ interest was specifically in

reducing liability for psychologists. Bennett¹⁸⁰ 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

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.

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.

223 2002 Guide at 160-162.

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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

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.

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 2000²⁶⁷—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

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 1.02²⁷⁴ — 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.²⁷⁹²⁸⁰

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 9-

11, 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, Ramos-

Grenier 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

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 standards³²² 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.

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 Behnke³²⁸ 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 Ramos-

Grenier, 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, Ramos-

Grenier 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

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

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

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.

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 Fisher³⁶¹ 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

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.

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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APA INTERACTIONS WITH CIA AND DoD: 2001—2004

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/mo-

111301.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, 110^th 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

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, 113^th 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

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

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. §§ 2340-2340A⁴³¹ 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

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.⁴⁴⁵ 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

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.

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 rapport-

building 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.

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 “20^th hijacker” in the 9/11 attacks, that utilized the newly

approved⁴⁷² 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 high-

ranking 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

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 Counter-

Resistance 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.

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

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 rapport-

building 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

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-the-

te_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.

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/wp-

dyn/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-suspects-

dark-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 800^th 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-struggle-

for-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

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.

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.

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

contacts⁵⁹⁵ 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.

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

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

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

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

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

634

development of terrorism and its related activities

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

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 “write-

up” 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.

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.

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

In the years after 9/11, in addition to informal meetings and discussions, APA began co-

hosting 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

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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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

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.

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.

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 &

Associates⁷⁴⁸ 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 hour-

long 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. Ayres⁷⁴⁹ 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

Breckenridge⁷⁶² 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.

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/wp-

dyn/content/article/2006/06/09/AR2006060901356.html.

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