Index Manuals REPORT TO THE SPECIAL COMMITTEE OF THE BOARD OF DIRECTORS OF THE AMERICAN PSYCHOLOGICAL ASSOCIATION (2015)
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INDEPENDENT REVIEW REPORT TO APA
APA INTERACTIONS WITH CIA & DOD: 2001-2004
techniques are apparent. One potential explanation was that military and intelligence personnel
were abusive towards detainees as a means of acting out their anger or sadistic impulses. But the
far more likely explanation is that these personnel were abusing detainees in an attempt to break
them down and then extract information from them. Therefore, a reasonably sophisticated
consumer of these news reports, especially a psychologist whose training would have attuned
him to the risk of serious psychological harm from such tactics, likely would have a sense that
the harsh tactics were being used in interrogations, even if the reporting did not clarify the
context.
In addition, APA staff in the Science Directorate were privy to some information suggesting
that Mitchell and Jessen were involved in interrogations and that their activities might raise some
concerns about potentially harsh techniques. From Mitchell and Jessen’s comments at the 2003
CIA- and RAND-sponsored conference, it is likely that Science Directorate staff, particularly
Geoff Mumford, knew that Mitchell and Jessen were interested in using psychological science on
deception detection as it related to improving the effectiveness of interrogations and interviews
of terrorists. If Science Directorate staff did not know that the research discussed at APA-hosted
conferences was being used to support interrogation activities, it was due to the determinedly
agnostic attitude of staff. In the face of substantial indications that the CIA was using
psychologists to conduct interrogations that might include abusive tactics, Science Directorate
staff intentionally avoided making inquiries that would produce more information. Therefore,
although it is not likely that APA staff had been read into the CIA’s interrogation program, the
level of public information available and their encounters with the principals involved in the CIA
interrogation program by March 2004 should have alerted them to at least the possibility that the
CIA was conducting abusive interrogations and was drawing on psychologists and psychological
science to do so.
V.
ETHICAL RUMBLINGS: MARCH 2004 - JULY 2004
A.
Ethical Inquiries from CIA
Prior to March 2004, the vast majority of interactions between APA and the intelligence
community had been centered in the Science Directorate, where staff focused on building
relationships in which they could demonstrate the value of psychological science to various
agencies. In March, however, an inquiry from Kirk Hubbard at the CIA, pulled the APA’s
Ethics Office, directed by Steve Behnke, into conversations regarding the role of psychology in
national security situations.
On March 11, 2004, Mumford put Hubbard in touch with Behnke and Kinscherff to
“discuss some issues related to the ethics codes that govern psychologists and psychiatrists in
settings where our national security interests are at stake,”766 which Hubbard had raised.
Hubbard then emailed Behnke and Kinscherff the following:
Geoff Mumford provided your names as potential resources to provide guidance
on the APA’s code of ethics and some of the new and unique demands being
placed on psychologists in response to countering terrorism.
766 APA_0019174.
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By way of introduction, I am the Chief of the Behavioral Sciences Staff at the
Central Intelligence Agency. Our mission is to conduct applied behavioral and
social science research to support the collection and analysis of human
intelligence and to support special projects involving counterterrorism efforts.
One of my staff, Andy Morgan, M.D. (cc’d above) have [sic] been discussing a
problem that is experienced by both psychiatrists and psychologists, alike. Both
specialties are being asked to provide consultation to law enforcement, the
military, and other organizations that have a role in national security.
Unfortunately, some of what they are asked to do runs counter to the American
Psychological Association and American Psychiatric Association’s code of ethics.
For example, military psychologists are often asked to assist in questioning or
“interrogating” foreigners detained in Afghanistan and Iraq. Psychiatrists are
often consulted by law enforcement to provide consultation on apprehending
and/or questioning subjects suspected of committing major crime.
Andy and I were wondering if both our APA’s (Andy is a psychiatrist) shouldn’t
begin to examine our respective code[s] of ethics to account for these new
situations where the subject is not the client/patient, and the subject’s rights can
arguably be subordinate to the needs of national security. Do either of you have
any thoughts on this issue, and how we might pursue this in the professional
community?767
The two individuals raising these ethical issues, Kirk Hubbard and Andy Morgan, spoke
with Sidley about the issues that had prompted them to reach out to the APA. Hubbard did not
think that he would have raised these ethical concerns on his own initiative; rather, he surmised
that others, perhaps individuals who were working under cover, had asked him to reach out to the
APA on their behalf.768 He added that Scott Shumate had raised similar concerns after returning
from a CIA black site,769 and concluded that the inquiry was probably an attempt by some people
to “cover their butts.”770
In contrast to Hubbard’s explanation that this email was intended to provide cover,
Morgan thought that they needed to clarify what military psychologists were able to do to assist
with interrogations.771
Morgan remembered having discussions with Hubbard in which they
agreed that when a psychologist evaluates a prisoner, the prisoner is not “the client.” He was not
certain that the codes of ethics of the professional associations provided sufficient guidance in
767 APA_0084694.
768 Hubbard interview (May 5, 2015).
769 Shumate was present for the interrogation of Abu Zubaydah at a CIA black site in Thailand. Katherine
Eban, Rorschach and Awe, Vanity Fair (July 2007), available at
770 Hubbard interview (May 5, 2015).
771 Morgan interview (May 29, 2015).
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this context, so he wanted to make things safe for psychologists and obtain ethical guidelines that
would outline the “rules of the road” in national security contexts.772
Morgan was also concerned, however, that psychologists might begin to participate as
interrogators, which is a role that is beyond their training and competency. He referenced
Jessen’s attempt to act as the interrogator at the SERE schools, and commented that he
personally knew of psychologists who had been deployed to Guantanamo and been placed in
roles that were different from what they had been told before deployment. Morgan said that his
goal in reaching out was to clarify what psychologists would be asked to do when assisting with
interrogations, and to ensure that psychologists had the authority to refuse orders if those roles
extended beyond their training.773
In response to Hubbard’s inquiry, Kinscherff explained that the Codes were likely to be
applied in a “fact sensitive” way that permits “the interpretation that the ‘client’ is not the
suspect/target individual.” He also commented that there may be situations in the national
security context that the code did not contemplate:
For example, under what circumstances might a psychologists deceive a third
party by identifying him/herself as the treating professional for the third party,
assure the usual protections of confidentiality and privilege, and then provide
otherwise protected information to law enforcement or intelligence? Permit the
sessions to be secretly recorded? Use the sessions to introduce false or
misleading information to the person who believes him/herself to be the patient of
the psychologists? . . .
Or, at what point does the advice that a mental health professional provides in
consulting on coercive interrogation technique[s] begin to push the boundaries of
what would be acceptable?
The codes simply did not contemplate circumstances where the law
enforcement/national security interests might trump the ethical/legal interests of
the identified patient/third party/target individual.
Kinscherff also proposed gathering together some of Hubbard’s staff with staff from APA and
ApA to discuss and sharpen these issues, and prompt an “evolution of a consensus that might
eventually be reflected in the professional ethics codes of the professions.”774 Kinscherff
forwarded his responses to Behnke, Mumford, Anderson, and Honaker, commenting that “this is
an extraordinary opportunity to actively engage with the law enforcement and national security
communities regarding some very challenging issues.”775
772 Id.
773 Id.
774 APA_0019343.
775 Id.
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Morgan also forwarded Hubbard’s email to two psychiatrists, with whom he had
discussed holding a meeting regarding ethics and national security. Behnke and the two
psychiatrists then engaged in preliminary discussions regarding a collaboration on future
working groups,776 which later ripened into a meeting for government psychologists and
representatives of the professional associations hosted by the APA on July 20.
After several weeks passed without further action within APA, Mumford contacted Steve
Breckler, Executive Director of the Science Directorate, and urged him to “follow-up as its [sic]
another ‘teachable moment’ and may represent an opportunity to be out front in a collaborative
effort (with ApA) at a time when collaboration with CIA on other fronts carries with it a
significant liability.”777
Mumford also forwarded the entire exchange to Brandon, and explained
that he wanted to get a sense of whether Breckler would “champion” the effort before getting
“too many people whipped up.” He added that “part of the pushback might be coming from
Stephen Behnke only because we’ve (he) just finished re-writing the ethics code and probably
sees this as a can of worms.”778 Breckler followed up with Honaker and Behnke to comment
that this issue “seems like a golden opportunity for APA to step up to the plate on issues that are
gaining a lot of public attention and scrutiny,” and Behnke agreed that “[t]his is a wonderful
example of psychology being able to make a contribution regarding a pressing, high-profile issue
of national importance.”779
Even at this early stage in APA’s consideration of ethical issues in the national security
context, the APA’s internal discussions suggest that a primary issue of importance to APA was
messaging and publicity. Though it is likely that APA staff were motivated by the goal of
providing substantive guidance to military psychologists as well, their initial internal
communications turned on the opportunity to take the lead on an issue that was drawing public
attention. Throughout the APA’s consideration over the next several years of the ethical issues
raised by psychologists working in nationals security, considerations of messaging and public
image would continue to dominate the conversation.
B.
FBI and NIJ Conference: “The Nature and Influence of Intuition in Law
Enforcement: Integration of Theory and Practice”
In September 2003, after preliminary discussions with Tony Pinizzotto from the FBI,
Brandon and Mumford began considering “intuitive policing” as a topic for the next conference
bringing together operational psychologists and researchers.780 Mumford and Brandon reached
776 APA_0054281.
777 APA_0019855.
778 APA_0020155.
779 HC00005180.
780 APA_0220767. In the midst of planning this workshop, Brandon was appointed Assistant Director of
Social, Behavioral and Economic Sciences at the White House Office of Science and Technology Policy.
As Assistant Director, Brandon would have reported to an Associate Director of Science, who in turn
reported to the Director of OSTP. In that role, she worked to promote the behavioral sciences as a useful
tool, but she lamented to Mumford that she had difficulty gaining traction and, in her discussions about
counter-terrorism with Marburger, “using behavioral science as a strategy was clearly still not on the list
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out to Bryan Vila at the National Institute of Justice for support, and they soon developed a
proposal for a workshop sponsored by the FBI and the NIJ. The invitation to the workshop
described its goal as “to shape a research agenda that will investigate and improve the decision-
making tools that police use to direct suspicion, detect lies, and guide investigations,” with a
focus on intuition and “gut responses.”781
By March 2004, the organizers had identified and secured acceptances from many
operational participants and researchers.782
In April, Hubbard emailed Mumford and Brandon to
ask that Kirk Kennedy be added to the invitation list. He explained that Kennedy had recently
left the CIA to become head of a research unit within CIFA that was similar to Hubbard’s unit in
the CIA.783 Hubbard also suggested that Bob Mericsko, who ran Deception Detection and
Analyst of the Future programs at the CIA’s Intelligence Technology Innovation Center, receive
an invitation.784
Ahead of the meeting, Brandon and Mumford shared the agenda for the break-out
sessions with facilitators. The goal of the sessions was to develop and deliver research on
“intuition” that might be useful to law enforcement by assessing “what is known, and what is not
known about the cognitive, emotive, and action processes that we are collectively referring here
to as ‘intuition.’”785
At the meeting, Sarah Hart from NIJ, Steve Band from the FBI Academy, and Robert
Kinscherff786 gave introductory remarks before the group broke into three smaller sessions. In
each of the breakout groups, the participants addressed the same set of questions relating to
whether intuition exists, whether it is innate or learned, and whether it can be deliberately taught
and sharpened as an intentional skill. The groups seemed to conclude that intuition is highly
error-prone, but that it is a skill that can be learned and strengthened through experience. In the
with him.” APA_0020708. As part of her new role, Brandon contributed to a report prepared by the
Subcommittee on Social, Behavioral and Economic Sciences to address how “social, behavioral, and
economic sciences are immediately applicable to strategies that can enhance the Nation’s capacity to
predict, prevent, prepare for and recover from terrorist attacks.” APA_0020876. Although Mumford
jokingly began referring to Brandon as “White House Susan” or “Oval Office Susan” during this time
period, it is unlikely that Brandon, who was several levels removed from the Director and finding
difficulty implementing her agenda, had significant influence in the Bush Administration.
781 APA_0018929.
782 One of the operational participants asked if there might be an opportunity to speak to the members of
the group with security clearance, but there is no evidence that such a discussion ever happened.
APA_0220996.
783 APA_0019360.
784 APA_0020664.
785 APA_0028295.
786 As Brandon and Mumford began to prepare the agenda, Kinscherff made it clear that he did not want
his affiliations disclosed to participants. APA_0029245.
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afternoon, the breakout groups addressed potential directions for research on intuition, such as
identifying characteristics of highlight intuitive people. After the breakout sessions concluded,
Kinscherff summarized the discussion from the various groups: “Most groups were
uncomfortable with the word ‘intuition.’ However, most participants agreed that intuition or
whatever it may be called is pre-conscious but based on sensory input
Experience is a key
component of developing the capacity for intuition, but that capacity may not transfer across
contexts.” 787
On the second day of the meeting, several researchers and academics gave short
presentations on their research as it related to intuition and implicit biases. Many operational
psychologists also shared issues in their work that would be promising areas for research.788 A
participant in the conference stated that she could not recall any discussion about psychologists
participating in interrogations, despite the fact that the Abu Ghraib photographs had only
recently leaked to the public.789
At the conclusion of the meeting, the group developed a
research agenda, and the organizers urged conference participants to comment on the proposed
research topics.
C.
CIA Conference:
“Interpersonal Deception: Integration of Theory and
Practice”
While Brandon and Mumford planned the intuitive policing workshop with contacts at
the FBI and NIJ, they remained interested in deception issues.790 In March 2004, Brandon
suggested to Demaine, Hubbard, Gerwehr, and Mumford that they consider asking a subset of
the group to stay for an additional day of meetings focused on deception and deception
detection,791 to be funded by the CIA and RAND.792 The workshop was designed to address the
basic question of how to effectively deceive on an interpersonal level. The meeting’s dual goals
were to describe the current state of scientific knowledge on effective interpersonal deception
and to create an agenda for further empirical research on the issue.
Invitations were extended to a subset of the participants in the previous day’s intuitive
policing conference, as well as some additional operational personnel and researchers with a
special interest in deception. Participants included representatives from the CIA, DoD Special
Operations, CIFA, DHS, the Secret Service, and law enforcement agencies in the United
Kingdom, in addition to a cadre of researchers and academics.793 Hubbard specifically
suggested that Judy Philipson attend because “she works alot [sic] in the area of deception, not to
787 APA_0021167.
788 Id.
789 Davis interview (May 5, 2015).
790 During this time period, the Science Directorate had also organized a briefing on the topic of
“Detecting Deception: Research to Secure the Homeland.” APA_0018582.
791 APA_0018928.
792 APA_0019242.
793 APA_0028283.
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mention being our terrorism guru.” He added that it was “probably more important that she and
Andy [Morgan] attend than me, actually.”794
The workshop was organized into three panels, which presented on operational
challenges in interpersonal deception and deception detection, technological advances and
behavioral challenges, and empirical and ethical challenges. At each of the panels, a group of
between three and five academics or researchers presented their research to the rest of the
group.795
One of the participants in this workshop said that the research presentations were made
to a group of individuals who did not introduce themselves, whom the participant understood to
be individuals from the Defense Intelligence Agency.796
After the pair of conferences at the end of June, Mumford and Brandon continued to
collaborate on conferences throughout the fall of 2004. In October, APA and DOJ co-sponsored
a conference on the topic of “Suicide Terrorism,” which Robert Kinscherff moderated, and in
November, APA and DHS co-sponsored a conference on the topic of “Charting a Course for
Homeland Security Strategic Studies.”797
D.
The Task Force on the Psychological Effects of Efforts to Prevent Terrorism
As APA gained a growing awareness of the effects of the Bush administration’s policies
on interrogations, senior staff nonetheless dampened membership activity that could be
perceived as opposed to the administration. In February 2003, Council allocated funds to
support a newly-formed Task Force on the Psychological Effects of Efforts to Prevent
Terrorism,798
to be chaired by Paul Kimmel. Philip Zimbardo, former president of the APA,
was a member of the task force, as were Nina Thomas and Michael Wessells, both of whom
would later be selected as members of the PENS Task Force.799
In a subsequently published book, Kimmel explained that the Task Force produced a
report designed to examine the effects and unintended consequences of strategies adopted by the
U.S. to prevent terrorism. The Task Force concluded that the stressful environment created by
the war on terror “often leads authorities to overestimate the threat and consequences of terrorist
activities and to make poor decisions in trying to prevent these activities.”800
It recommended
that “psychologists take the lead in providing impartial and objective information about terrorism
and efforts to prevent it. We can use our knowledge about enemy images, stereotyping of other
794 APA_0028274.
795 APA_0028283.
796 Davis interview (May 5, 2015).
797 APA_0022999; APA_0023000.
798 Draft Minutes of the Council (Feb. 14-16, 2003) (on file with Sidley).
799 APA_0021063.
800 Paul Kimmel & Chris E. Stout, Collateral Damage: The Psychological Consequences of America’s
War on Terrorism, xvi (2006).
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groups, and the processes of group think to open a space for debate, discussion, and interpersonal
engagement.”801
Almost from the beginning, APA staff and governance worked to undermine the task
force’s efforts. In April 2003, Judy Strassburger, Norman Anderson, and Robert Sternberg
discussed “trimming” the Task Force on the Psychological Effects of Efforts to Prevent
Terrorism as a means of “getting the task force going.” They agreed to deliver the request to
Paul Kimmel, who chaired the task force, after the Board meeting so that they “could say the
Board discussed and feels” that reducing the size of the task force is appropriate.802
In early May, the task force produced a report consisting of an introduction by Kimmel
and a compendium of thirteen papers from the members of the task force. The report assessed
the psychological effects of “living in a nation ‘at war’” with terrorism, including stereotyping
and bias against immigrant populations, a growing sense of fear and helplessness in traumatized
populations, and a burgeoning sense of “militant patriotism.”803
By mid-July, senior staff in the
APA were becoming more concerned about possible media attention devoted to the task force’s
report because it could do “real harm to APA’s public image.”804 Farberman expressed concern
with “the slant of the report (anti-Bush) and some of the specific language,” including phrases
such as “militantly patriotic policies” and the sentiment that the “current administration has
weaponized fear in the war on terrorism.” Farberman also identified “some ‘science’ problems”
with the report, and commented that she hoped that Council would either edit or refused to
accept the report. Strassburger suggested putting the issue on the agenda for a Board executive
session, and Anderson agreed that the Board needed to give Farberman some “cover.”805
At the July 27, 2004 executive session of the Board meeting, the Board requested that
Board member Sandra Shullman ask Kimmel to consider postponing the presentation of his
report until the February 2005 Council meeting to allow time for the Boards and Committees to
review the report.806
At the upcoming Council meeting only a few days later, Kimmel was
approached by President-elect Ronald Levant, Rhea Farberman, Nina Thomas, and Sandra
Shullman, who convinced him that the APA could only “receive” the report but not take action
on it in its current form, and that it would be best to send the report for approval through the
Boards and Committees.807 Kimmel accepted their guidance and amended the report before
submitting it to several interested boards and committees.808
801 Id. at xvii.
802 APA_0179365.
803 APA_0021063.
804 APA_0189542.
805 Id.
806 Approved Minutes of the Board (July 27 & 30, 2004) (on file with Sidley).
807 Bryant Welch, The American Psychological Association and Torture: The Day the Tide Turned,
american-psychologica_b_242020.html.
808 Kimmel interview (May 12, 2015).
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In August 2004, Kimmel explained that he had complied with APA staff’s
recommendation to postpone his presentation of the report to Council only because he
understood “that going through the Boards and Committees was necessary for adoption which is
a stronger action [than Council receiving the report] and allows APA to do more to use and
publicize our work.”809 Farberman drafted a response to explain to Kimmel that the report
would be included as an item in the cross cutting agenda at the Board and Committee
consolidated meetings, and that after the report was reviewed by the full governance structure,
Council could choose to receive the report. Anderson commented to staff that he “didn’t get the
sense from the board that we wanted to move the report toward adoption.”810
The report was placed as an agenda item in the Fall Consolidated meetings.811 After
several months of deliberations, the Board recommended to the Council that the report of the
task force should be rejected in its entirety.812
At the following Council meeting, Council
approved a motion that “thank[ed] the Task Force on the Psychological Effects of Efforts to
Prevent Terrorism and refer[red] the Report of the Task Force to the Board of Scientific Affairs
to provide perspective and encourage further development of these topics.”813 Kimmel said that
Levant skipped over the presentation of the report in the agenda and pushed discussion back until
the end of the Council meeting, when he recorded a unanimous vote rejecting the report despite
several votes in favor. He explained that because of this omission, he did not have time to
present any information or speak in support of the report.814 APA never accepted the report in
any form, and it was eventually published with an independent publisher under the title
“Collateral Damage: The Psychological Consequences of America’s War on Terrorism.”
The APA’s response to Kimmel’s task force demonstrates that, by 2004, the APA was
guided by political considerations to obstruct member initiatives that were critical of Bush
administration policies in the war on terror. There might have been legitimate concerns about
the scientific basis of the report, as Farberman described, or those concerns might have been
pretextual; regardless of the validity of the scientific concerns, however, it is clear from internal
communications that APA’s motivation in discouraging the acceptance of this report was at least
in part based on an effort to appease the Administration. In short, APA staff used internal
governance processes to hold back membership initiatives that expressed criticism of the
government’s counterterrorism initiatives out of fear of angering the Bush Administration.
E.
Abu Ghraib Media and Internal Response
In April 2004, reports of abuses at Abu Ghraib began to receive widespread media
attention. As media scrutiny of detainee abuses intensified, APA began receiving inquiries about
psychologists’ involvement in torture, either through designing interrogation techniques,
809 APA_0189330.
810 Id.
811 APA_0021063.
812 Approved Minutes of the Board (June 10-12, 2005) (on file with Sidley).
813 Approved Minutes of the Council (Aug. 17 & 21, 2005) (on file with Sidley).
814 Kimmel interview (May 12, 2015).
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facilitating interrogations, or “looking the other way” when abuses occurred.815
In response to
such inquiries, Behnke emailed a senior group of staff and governance members the following:
These are, obviously, complicated issues, and psychologists working for various
parts of the government are involved in investigations that implicate national
security. In the past few months, our folks in the Science Directorate (Geoff
Mumford) have been approached by people in government wanting to discuss the
ethics of psychological techniques being used in government investigations. I
think there are appropriate and inappropriate ways for psychology to be involved,
and would suggest a cautious approach, where we, as an organization, look at the
issues in a considered and thoughtful manner, perhaps by way of a task force.
At the moment, there are intense feelings about this issue. I would recommend a
reply that conveys our appreciation of the seriousness of the matter and our
interest in identifying the ethical issues that arise when psychology is used as an
investigative tool. I would recommend against a reply that casts a shadow on
psychologists who work for government agencies in investigative roles, or a reply
that suggests that, by virtue of recent events, such psychologists are under some
sort of suspicion. Rather, I would suggest that it is in everyone’s interest that as
an organization we are as helpful as we can be in promoting the ethical role of
psychology in investigations, including investigations to protect our national
security, and that we want to do what we can as an organization to discourage
investigative techniques that are not consistent with our ethics.816
This was the first time that Behnke raised the idea of a task force to address ethical issues
raised in national security contexts. Notably, even from this early date, Behnke took the
approach that it was appropriate for psychologists to be involved in national security
investigations, and that it was important to support psychologists working in such roles.
Although these press reports and member inquiries do not prove that APA staff knew that
psychologists were facilitating interrogations using abusive techniques, the internal APA
communications as of May 2004 are sufficient to demonstrate that senior APA staff should have
been on notice that psychologists were working in environments where such abuses were
rampant. At that time, senior staff in the Ethics Office and Science Directorate were aware from
Hubbard’s earlier inquiries that psychologists were being asked to participate in activities at
Guantanamo in ways that raised potential ethical issues. In May, APA staff also learned that
Larry James was being deployed to Iraq “to be Chief Psychologist at that prison,” presumably
Abu Ghraib.817 Therefore, it seems likely that APA staff were aware that psychologists were
815APA_0084947; APA_0021277.
816 APA_0084947.
817 APA_0030148. In June 2004, Anderson reached out to James to confirm that he had been assigned to
this role, but then quickly retracted the question because he was sure it was “confidential even if true.”
APA_0189751. When James’s convoy was attacked, a senior staff member in the Education Directorate
notified Anderson and informed him that James had returned from Iraq. APA_0186135.
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working in settings where detainees were being subjected to abuse, and that they were being
faced with the ethical dilemmas presented by those abuses.
F.
The Legal Framework
In May, as concerns about prisoner abuses at Abu Ghraib spread, Heather Kelly, Geoff
Mumford, and Steve Breckler began working to put together a congressional briefing that would
educate congressional staff and federal agency personnel regarding psychological science related
to the issue of prisoner abuse. They scheduled the briefing for June 10, and began recruiting
speakers for the event.818 By early June, they had determined that Steve Breckler would present
on the topic of “How can the Science of Human Behavior Help us Understand Abu Ghraib?” and
Kevin Murphy819 would present on the topic of “How can Psychological Research in Military
Contexts Help Us Prevent Another Abu Ghraib?”820
On June 9, the day after the Washington Post broke the story publicizing the contents of
the OLC memoranda and the day before the scheduled briefing, Mumford began reaching out to
his contacts in the government to express concern about how the story might affect the following
day’s briefing. He asked Gerwehr to participate in a “semi-emergency call triggered by the DoJ
memo and our briefing tomorrow,”821 and reached out to Hubbard for advice regarding questions
that might arise around the memo.822 There is no evidence showing that either Hubbard or
Gerwehr discussed the memoranda with Mumford before the briefing.
In an internal discussion with APA staff and the two speakers for the briefing, Mumford
expressed concern over the references to “psychological techniques” the Post made when
discussing the OLC’s definition of torture.823 Murphy responded that “[t]he thing that makes
this especially worrisome is that if the White House, DOJ, and DoD were being advised by
counsel that anything goes during time of war, the admonition that everything needs to be done
in a legal way does not do much good.”824
This exchange demonstrates that APA staff were aware that the definitions used in the
OLC memos rendered bare statements regarding prohibitions on torture toothless. The June 7
Wall Street Journal article about the report of the working group from March 2004 and the June
818 Kelly initially invited Zimbardo and Sternberg, but Zimbardo declined due to scheduling conflicts.
APA_0128869.
819 Kevin Murphy is an academic psychologist at Pennsylvania State University, and past president of
APA Division 14, the Society for Industrial and Organizational Psychology.
820 Representative Ted Strickland had also planned on delivering remarks at the briefing, but was unable
to attend after a change to the congressional schedule. Heather O’Bierne Kelly, June 10th Congressional
Briefing on Abu Ghraib, Society for Industrial and Organizational Psychology (Oct. 2004), available at
821 APA_0028361.
822 APA_0028813.
823 APA_0028817.
824 APA_0029487.
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8 Washington Post article about the OLC memoranda indicated that the rules and standards
regarding torture were no longer clear-cut, and that it was not feasible to rely on the legal
framework to prevent activities that could amount to torture. Even had APA staff failed to
understand that point, Murphy made the connection and raised the explicit concern to Behnke
and other APA staff that relying on legal guidelines to prevent torture would be inadequate.
Thus, it is not credible that APA would think a prohibition on “torture” was sufficient guidance
during the work of the PENS Task Force the following year.
G.
Requests for Ethical Guidance
After the Abu Ghraib abuses came to light, APA staff stated in internal communications
that they began to field a greater number of inquiries from government personnel regarding “the
ethics of psychology as a tool in national security investigations.”825 Behnke elaborated in an
email to Russ Newman that “in the past few months, the Science Directorate has been
approached by people in government wanting to discuss the ethics of psychological techniques
being used in government investigations.”826 In an interview, Behnke stated that his reference to
inquiries from the government related solely to the email from Kirk Hubbard in March 2004.827
It seems unlikely that Behnke would write that the “tempo” of the discussions prompted “by
people in government wanting to discuss the ethics of psychological techniques being used in
government investigations”828 was increasing if he were referring to only the single inquiry from
Hubbard. However, Sidley found no evidence of other inquiries made to the APA during this
time.
Senior staff began discussing how best to bring colleagues from the CIA into the
discussion. Mumford suggested that Hubbard might be interested, though he was “more
involved in recruiting assets,” and that Andy Morgan “may know more about the PsyOps stuff”
because of his role in training DoD personnel to resist interrogation, and was “the one who really
wanted to see this be an APA/ApA collaboration.”829
By late April, it seems likely that APA’s discussions regarding the ethics of national
security interrogations had reached some of their contacts in the military. At that time, Larry
James reached out to Anderson to request that he be permitted to serve on a “sub-committee on
terrorism” that he had heard APA was forming.830 James’s request suggests that, even before the
APA formally convened a meeting to discuss the ethical issues, there might already have been
internal discussion of a future task force or other working group to discuss ethical issues raised in
the national security context.
825 APA_0242896.
826 APA_0022593.
827 Behnke interview (May 22, 2015).
828 APA_0242896.
829 APA_0020325.
830 APA_0189751.
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In May 2004, APA staff met internally to plan a meeting that brought together
individuals from the mental health professions and government agencies for a discussion of the
issues. In the invitations Behnke subsequently circulated to government personnel, he
emphasized that:
The purpose of this meeting is to bring together people with an interest in the
ethical aspects of national security-related investigations, to identify the important
questions, and to discuss how we as a national organization can better assist
psychologists and other mental health professionals [to] sort out appropriate from
inappropriate uses of psychology. We want to ask individuals involved in the
work what the salient issues are, whether more or better guidance is needed, and
how best to provide guidance (e.g., through ethics consultations) that may be
deemed appropriate or helpful. I would like to emphasize that we will not
advertise the meeting other than this letter to the individual invitees, that we will
not publish or otherwise make public the names of attendees or the substance of
our discussions, and that in the meeting we will neither assess nor investigate the
behavior of any specific individual or group.
The Ethics Office and Science Directorate would like to take a forward looking,
positive approach, in which we convey a sensitivity to and appreciation of the
important work mental health professionals are doing in the national security
arena, and in a supportive way offer our assistance in helping them navigate
through thorny ethical dilemmas, if they feel the need (informal conversations
with people in the field suggest the need is there).831
Behnke’s communications with respect to the meeting at APA in July 2004 demonstrate
that long before the PENS Task Force was created, Behnke’s position was that the APA should
be supportive of psychologists working in national security settings and should work to construct
an ethical framework that allowed them to remain in those roles. In an interview with Sidley,
Behnke explained that this forward looking approach is consistent with his general outlook on
ethics, in which the primary focus is on education and consultation rather than adjudication. It
seems fair that Behnke’s general approach to his role as Ethics Director emphasized forward-
looking consultation over backward-looking adjudication; however, that his preferred approach
was to provide consultation and guidance does not inevitably lead to the conclusion that the
ethically appropriate guidance would permit psychologists to participate in interrogations.
Behnke’s early communications on issues related to ethics and national security demonstrate that
he assumed the appropriateness of psychologists participating in such roles, and that he and APA
then constructed an ethical framework on the basis of that assumption.
Although it seems clear that Behnke arranged the July 2004 meeting in the context of
Hubbard’s inquiries from March 2004, other individual identified to Behnke and Science
Directorate staff ethical issues associated with the potential for exploitative research on
deception detection. In early May, Martha Davis responded to a request from Susan Brandon for
831 APA_0058091.
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research ideas extending into the next decade. Davis commented that “research on deception
detection in real world contexts” will have developed over the years, and “[t]hat leaves the
political and ethical issues surrounding a subject that is exquisitely vulnerable to distortion,
oversimplification and abuse.” She trusted that APA would continue to strengthen ethics
guidelines in this area, but commented that “what feels well beyond my realm as a researcher are
the political forces which can push the research forward, shaping and potentially exploiting it in
ways that are empirically and ethically suspect.”832 Jennifer Vendemia, another researcher
focusingon deception issues, raised similar points about ethical dilemmas in the area of deception
research.833
She commented that an organization “must be founded that deals exclusively! With
the ethical dilemmas of [deception] research. Deception research will be applied to the theatre of
war, one on one interrogations, and screening applications
We are talking about a huge
change in the way psychologists work with the government, and we need to not only have
protection but also safe ethical guidelines.” She asked Brandon who she could talk to about such
an effort at APA, and Brandon forwarded her inquiry to Mumford, who then forwarded it to
Behnke.834
These concerns mirrored the ethical concerns that had been raised by physicians and
psychologists in the CIA’s Office of Medical Services since the interrogation program began.
One witness stated that the idea of research on the interrogation program was “alive and well”
within the CIA, despite agreement within OMS that such research was unethical without
informed consent. However, this witness knew of no link between APA and any research
program the CIA might have conducted, and he explained that any changes in the APA Ethics
Code to permit such research would have had no effect on federal law set by the Department of
Health and Human Services.835 Thus, as discussed above, regardless of whether or not DoD ran
research program on detainee interrogations, Sidley has uncovered no evidence that APA
facilitated such research.
However, even if APA was unaware of research programs run by the CIA and DoD or
ethical concerns regarding such research raised internally within the CIA, these communications
show that as of summer 2004, Behnke had been placed on notice that research on deception in
the national security context raised complicated ethical issues. Despite these issues raised by
researchers participating in APA-sponored conferences, during the PENS meeting more than a
year later, a group designated to consider ethical issues in precisely this context recommended
pursuing research related to interrogations without addressing the obvious concerns.
H.
Additional Interactions with Mitchell and Jessen
In mid-June, Hubbard and Mumford exchanged emails relating to the possibility of Jim
Mitchell participating in a seminar hosted by the National Academies of Science (“NAS”) on the
topic of coercive interrogations. The NAS was hoping to find individuals to represent a range of
832 APA_0020261.
833 APA_0084997. Vendemia, a participant in the July 2003 conference sponsored by the CIA, was a
recipient of large government grants in support of her research in deception detection.
834 APA_0020868.
835 Morgan interview (May 29, 2015).
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perspectives on coercive interrogation, and turned to the Science Directorate for
recommendations for “speakers who would SUPPORT coercive interrogation tactics.”836 In
response to this same request, Mumford also reached out to Robert Kinscherff, who suggested
that Behnke might have contact information for Michael Gelles or Robert Fein.837
Hubbard informed Mumford that “Jim” would likely not be able to participate because
“Jim and Bruce will both be in Hawaii on July 30.” Hubbard added that he “would hope you
could assist in ensuring that their association with my organization is not divulged [if they were
to participate]. The[y] have significant prior DOD experience in this area and now have a
private consulting business.” Mumford assured Hubbard that “we always aim to be very discreet
in making any associations with your organization and don’t want to (and won’t) do anything to
jeopardize our harmonious working relationship.”838
Only a few weeks later, Mumford emailed Steve Breckler about a potential meeting with
two “former CIA staff psychologists (known only to me as Jim and Bruce) who have been
intimately involved in setting up the protocols for interrogation in Iraq and elsewhere. It
obviously wouldn’t be for attribution but might be an interesting opportunity for us to have a
better understanding of what goes on inside
”839
Mumford later told Brandon that Hubbard
was arranging the meeting to discuss “interrogation practices,” and that it was likely that she
would be able to join.840 There is no documentary evidence showing that this meeting ever
occurred, and Mumford could not recall any follow up to the email.841 It is possible that
Mumford met with Mitchell and Jessen at the 2004 APA Convention in Hawaii, which Mitchell
and Jessen were scheduled to attend, but the communications do not prove that such a meeting
happened. Mitchell said that he could not recall having ever met with Mumford.842
VI.
ETHICS AND NATIONAL SECURITY: JULY 2004 - NOVEMBER 2004
In July 2004, APA took its first formal step toward address the ethical issues being raised
by psychologists’ involvement in national security settings. APA staff explain that the purpose
of this meeting was to address a broad range of issues related to psychologists working in the
military and other government agencies involved in national security. They assert that abusive
interrogations were only one relatively insignificant part of the issues that the meeting was
designed to address. However, it seems likely that one of the primary purposes of this meeting
was to address the ethical issues related to interrogations. By this point, APA staff had already
communicated internally about ethical issues related to national security investigations, and had
fielded at least one request for ethical guidance related to activities in which psychologists were
asked to participate at Guantanamo. Moreover, APA staff members were surely aware of the
836 APA_0028365 (emphasis in original).
837 APA_0022708.
838 APA_0028185.
839 APA_0020846 (ellipsis in original).
840 APA_0022534.
841 Mumford interview (May 15, 2015).
842 Mitchell interview (May 15, 2015).
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many public reports of rampant human rights abuses against detainees held in the war on terror.
Therefore, as APA gathered together ethics experts and representatives from the CIA, CIFA,
DHS, and other government agencies serving the national security mission, it seems improbable
that one of the primary issues on the agenda would not be the ethical implications of
psychologists’ participation in interrogations.
A.
July 20, 2004 APA Ethics and National Security Forum
On July 20, 2004, the APA’s Ethics Office hosted a forum on Ethics and National
Security to bring together representatives of the FBI, CIA, and DoD for a discussion of “the
ethical issues in the use of psychology in national security-related investigations” and an
exploration of “how APA and other professional and scientific organizations can serve as a
resource for psychologists and mental health professionals who participate in these
investigations.”843
Shortly before the meeting, Mumford invited his government contacts in various
agencies, including Hubbard, Morgan, Band, Kennedy, and Brandon, to attend the meeting by
forwarding Behnke’s message explaining his “forward looking” approach and emphasizing that
he would focus on identifying important ethical questions and offering assistance to
psychologists “navigat[ing] through thorny ethical dilemmas.”844 Mumford also forwarded the
exchange to Anderson to inform him that APA would be holding a meeting on this topic, and
that “[t]he effort has the active and enthusiastic support of the CIA, DoD and FBI.”845
In addition to Behnke, several APA staff and former governance members attended,
including Robert Kinscherff, the former Chair of the Ethics Committee who had responded to
Hubbard’s request for ethical advice several months earlier; Mel Gravitz, the psychologist who
had served on the CIA’s Professional Standards Advisory Committee; Mike Honaker, Deputy
CEO of APA; Russ Newman, the Executive Director of the Practice Directorate; Steve Breckler,
Executive Director of the Science Directorate; Geoff Mumford, Director of Science Policy;
Heather Kelly, Senior Legislative and Federal Affairs Officer in the Public Policy Office; Sara
Robinson, Legislative Assistant for Science Policy in the Government Relations Office; and
Lindsay Childress-Beatty, Deputy General Counsel.846 Rhea Farberman chose not to attend the
forum “[b]ased on our decision to separate the public communications issues from the ethics
issues.”847
Farberman’s email reflects APA’s concern with its messaging on ethical issues in the
national security setting, a concern that echoed through their earlier response to Hubbard’s
inquiry and their later communications during the PENS Task Force.
843 APA_0229986.
844 APA_0022593.
845 APA_0028483.
846 APA_0021208. Patrick DeLeon, former president and Chief of Staff to Senator Inouye was invited,
but declined to attend. APA_0045377. Nathalie Gilfoyle, APA General Counsel, was also invited but
ultimately did not attend.
847 APA_0030193.
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The APA also included Jeffrey Janofsky and Robert Phillips as representatives from the
American Psychiatric Association (“ApA”) and Mark Frankel from the American Association
for the Advancement of Science, as part of a collaborative effort to address the ethical dilemmas
facing all mental health professionals asked to consult on interrogations.
Steve Band and Anthony Pinizzotto attended the forum on behalf of the FBI’s Behavioral
Science Unit,848 and Kirk Hubbard and Judy Philipson849 attended on behalf of the CIA’s
Behavioral Science Unit. Scott Shumate and Kirk Kennedy were invited to attend the meeting as
representatives of CIFA, a division of the Department of Defense, though only Shumate was able
to do so. Also in attendance was Susan Brandon, the former APA Senior Scientist who
subsequently moved to a position in OSTP. After the meeting, Behnke drafted a brief
description of the meeting for Brandon to show her superiors at the White House to account for
where she had been at the time.850
Several contractors to the FBI, CIA, or DoD were also present at the meeting. These
contractors included Robert Fein and Michael Gelles, who would later serve on the APA’s PENS
Task Force, and Andy Morgan, the psychiatrist on Hubbard’s Behavioral Science staff who had
raised ethical concerns several months earlier.
It is likely that many of the operational psychologists involved in these discussions were
concerned that the professional associations might in some way impede their work. Gelles
explained that, at the time of the meeting, many operational psychologists from various
intelligence and law enforcement agencies were meeting about once a year to discuss how to
define their role in accordance with ethical guidelines. He believed that many psychologists
were talking informally about how to ensure that the work they were doing would not stop.851
As noted above, in his invitation, Behnke assured participants that APA “will not
advertise the meeting other than this letter to the individual invitees, that we will not publish or
otherwise make public the names of attendees or the substance of our discussions, and that in the
meeting we will neither assess nor investigate the behavior of any specific individual or group.”
Band responded that he appreciated being assured that the names and affiliation of attendees
“will not be a media event.”852 Childress-Beatty expressed surprise that the participants would
848 Kristen Beyer was also invited to attend, but was unable to do so because of a scheduling conflict.
APA_0058091.
849 Judy Philipson, a psychologist who worked in Hubbard’s office at the CIA, suggested to Behnke
before the meeting that he invite James Mitchell and Bruce Jessen as well because they “would be
absolutely necessary for this discussion.” After Behnke asked her for some background on Mitchell and
Jessen, Philipson commented that she had consulted with Mel Gravitz, and that “he thought that it might
be premature to bring them along for this initial meeting.” APA_0045373.
850 APA_0058032.
851 Gelles interview (May 27, 2015).
852 APA_0045389.
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object to their names being released, and Behnke responded that “this particular group of folks is
sensitive to those issues.”853
The day before the meeting, Behnke prepared an outline of his opening remarks and
shared it with Gilfoyle and Childress-Beatty to solicit their thoughts. In the outline, Behnke
identified four goals for the meeting:
1) identify the ethical issues that arise in the use of psychology or psychological
techniques in national security-related investigations; 2) discuss how the
American Psychological Association and other professional and scientific
organizations can serve as a resource for mental health professionals who
participate in national-security related investigations; 3) identify resources, for
example journal articles that raise and address the relevant ethical issues, as well
as other individuals with a particular interest or expertise in this area; and 4)
determine whether ongoing contacts among the group would be useful, for
example additional meetings to continue our discussion, panels or workshops at
national conferences, or articles in journals or newsletters to stimulate discussion
in the broader investigative and intelligence communities.
Behnke also identified a number of points he wanted to emphasize during his introduction to the
forum. Many of his points focused on the “goodness of fit” between the ethics codes and the
situations with which many professionals struggle during their practice in national security
settings. He concluded by noting that “the risk of not addressing these issues are [sic] that
mental health professionals will stay away from this work, out of a concern of exposing
themselves to legal and ethical liability, or that mental health professionals who do engage in this
work will become split off from their national associations, because of a feeling that the national
organizations do not understand what they do. Either would be a highly undesirable
outcome.”854
When Kennedy learned that he would be unable to attend the forum, he wrote an email to
Hubbard explaining his thoughts on the importance of APA creating “an entity to take on a
positive consultation role to the intelligence community.” He explained that the Intelligence
Community (“IC”) “is often ill-served by a few unethical/unprofessional psychologists” because
it is sealed off from professional oversight boards and “IC management is generally insensitive
to professional ethical issues, [which] sets the stage for breeding the same insensitivity in the
psychologists it employs.” Kennedy explained during an interview with Sidley that he was
thinking about OMS officers who manipulated case officers into letting them consult on cases
when he raised these points.855 Moreover, he noted that Intelligence Community managers and
early-career psychologists lack resources when they have ethical questions, and “more senior
psychologists are not always the best resource especially since they may be part of the problem.”
Kennedy thought that, were the APA to set up an ethics consultation board for the Intelligence
Community, psychologists would have a resource to turn to for addressing ethical issues, such as
853 APA_0058042.
854 APA_0058094.
855 Kennedy interview (May 28, 2015).
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confidentiality and multiple relationships. Such a board might also develop professional
standards and a certification program for the area of psychological consultation. Finally,
Kennedy noted that “[t]he APA Ethics Code seems primarily geared for the therapeutic context”
and that it could be difficult to adapt it “to provide ethical guidance for consultation in the IC.”856
Although many of Kennedy’s ideas related to a consultation board were not discussed at
the meeting on July 20, his final point related to the Ethics Code’s applicability in national
security settings became an important theme of the discussion. One of the primary topics of
discussion at the meeting was the “goodness of fit” between the APA’s ethics guidance and the
role of psychologists in national security investigations. Robert Fein commented that he had
attended an FBI conference at which they “concluded that the [E]thics [C]ode was indeed a poor
fit.” Kirk Hubbard most strongly stated that “the current code does not apply at all [to] the
national security investigation situations—it’s not mental health we’re concerned with, but
national security; we are supposed to exploit and manipulate the interrogatees to gain crucial
information.” He later emphasized that “beyond [torture], we have no ethical duty to the
interrogatee.” Jeffrey Janofsky offered the alternative perspective that, even if the client is the
interrogator, psychologists and psychiatrists still “have some duty to the detainees” and that they
“can’t just drop your ethical guidelines when you take off your ‘psychologist hat.’”857
Although no record of further discussion on this point appears in the collection of notes
from this meeting, several other participants said that they strongly disagreed with Hubbard.
Kennedy said that Shumate and Hubbard argued over Hubbard’s position. He also explained
that, after this meeting, it became clear to Kennedy that he did not have the same views as
Hubbard, and he did not speak to Hubbard often after this point.858
Another recurring theme raised during the meeting was that the traditional rules designed
to fit a clinician/patient relationship did not seem to apply in national security contexts. This
theme became particularly prevalent when the group discussed the identity of the client in
national security contexts. At one point, Michael Gelles cautioned “it’s important to remember
the client is the interrogator, not the interrogatee—these are not patients.” He attempted to steer
the conversation towards boundaries, rather than rules and guidelines, as an attempt to cabin
“how far psychologists should go.”
Several participants also expressed concerns regarding the pressures psychologists felt to
give advice in areas outside their expertise in “high stakes” situations. Mel Gravitz commented
that “we have a responsibility to provide credible, ethical service” as both citizens and
psychologists.859
Andy Morgan elaborated that psychologists and psychiatrists were “pressured
to offer consultation and opinions” even in “areas were we have no training.” Gelles agreed that
“psychologists get pulled into a process where our expertise is demanded” but queried how to
856 APA_0028398. Although Kennedy was at that time affiliated with CIFA, he had only recently moved
from the CIA where he had been Hubbard’s counterpart within another unit of the Operational
Assessment Division.
857 APA_0229986.
858 Kennedy interview (May 28, 2015).
859 Mumford Notes (July 20, 2004) (on file with Sidley).
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“define our competence.”860 He identified a number of possible roles for psychologists
consulting on interrogations—such as observing “behind the glass,” sitting in the room,
designing the strategy, or writing the script—which might raise different ethical dilemmas.861
Some participants raised the idea of “relative ethics,” such that there was a “continuum of
coercion from benign to not at all benign, depending on how high the stakes are.” Shumate
invoked the “ticking bomb scenario,” and queried how the ethics standards applied in practice
“in the context of competing duties and oaths,” such as the oath to protect and defend.862
Behnke seemed to agree with this “relativist” position, stating that “there are exceptions to each
rule in the code, where some other value or goal trumps another.”863
Another consistent concern was the lack of empirical data available to assess risk, and the
inability to conduct the necessary research because it would be unethical. The participants
lamented that the y could not access a community of colleagues or experts on these issues
because much of their work was classified. Robert Kinscherff commented, however, that there
are “lots of naturalistic experiments going on” relating to the question “at what point does
deception work.”864 Andy Morgan also made a comment about “using available venues to
conduct empirical evaluations.”865
Although the basic question of whether mental health professionals should conduct
interrogations at all was raised during this meeting,866 it was given little attention; instead, the
relevant question soon became not whether psychologists should participate, but how they could
do so ethically.867
Behnke explained that he interpreted the position that psychologists cannot be
involved in interrogations as meaning, through logical extension, that interrogations are
unethical. He found this position unrealistic, and viewed interrogations as inherently a
psychological activity where it made sense for psychologists to be involved.868
Behnke said that he was mindful at this time of pressures from both directions. He
explained that in hindsight, all of the pressure is coming from one direction in favor of greater
protections for detainees, but at the time he wanted to be cautious because of the potential for
another attack that could bring pressure from the other direction. Behnke wanted APA to find a
way to be anchored in the middle.869
860 APA_0229986.
861 Mumford Notes (July 20, 2004) (on file with Sidley).
862 Id.
863 APA_0229986.
864 Mumford Notes (July 20, 2004) (on file with Sidley).
865 Id.
866 HC00009080; Mumford Notes (July 20, 2004) (on file with Sidley).
867 APA_0041230.
868 Behnke interview (May 22, 2015).
869 Id.
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B.
Follow Up to the National Security Forum
After the meeting, Behnke sent an email to Honaker, Gilfoyle, and Childress-Beatty to
relay the appreciation of the “investigative community” that APA had reached out on this issue.
He added: “As the national organization, we should be on the cutting edge of the
discussion/debate about the ethics of this issue—if we aren’t, that particularly community of
psychologists is likely to ‘give up’ on APA and go their own direction, as was alluded to during
the discussion, which would be a very undesirable outcome for a variety of reasons.”870 Behnke
explained that he meant that the APA should be on the cutting edge both in leading the
discussion on these issues and in giving the best substantive guidance possible. Behnke wanted
to develop “state of the art” rules to demonstrate that APA was an appropriate venue to seek
ethical guidance and to have discussions on these issues.871
Behnke also emailed the participants to thank them for their contributions. Band
responded that the “important and timely gathering was one of the most significant meetings I
have attended this year
During this time of war, I am drawn to part 1.02 of our (APA’s)
ethical principles and take comfort in my interpretation of this standard. Towards that end, I
truly look forward to your leadership, guidance and future meetings as we hazard forward.”872
Behnke also contacted Janofsky, the representative from ApA, to express the hope “that
our two APAs can collaborate on this issue, to everyone’s benefit.”873 In September, he attended
the annual meeting for forensic psychologists, which covered the same topics as the July meeting
hosted by APA.874
In September, Kennedy approached Mumford to follow up on a discussion they had
during the June 24 interpersonal deception workshop regarding the creation of an “APA
fellowship at CIFA along the same lines as was done with Kirk Hubbard at CIA.” Mumford,
Kelly, Shumate, and Kennedy subsequently met for lunch to discuss collaborating on the
fellowships, and Kennedy also suggested that “[p]erhaps there is a way to collaborate further on
ethical issues as well.”875
At the meeting, the group discussed the need for APA to re-establish
ties with psychologists in national security and intelligence settings and the possibility for future
collaboration on ethics issues. As concrete steps in this direction, they proposed developing
summer science fellowships at CIFA, creating an APA division related to intelligence work,876
and establishing a behavioral science advisory panel for CIFA.877
870 APA_0058042.
871 Behnke interview (May 22, 2015).
872 APA_0085132 (emphasis in original).
873 APA_0058049.
874 APA_0022045.
875 Id.; APA_0020824. In the summers of 2005 and 2006, APA placed four Summer Fellows with CIFA
under the supervision of Kennedy and Shumate.
876 A few days after the meeting, Mumford inquired into starting a new division on the “use of
psychological and behavioral science in devising intelligence, counterintelligence, and counterterrorism
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Aside from these small-scale meetings, APA did not immediately begin to orchestrate a
more cohesive strategy to follow the July 20 forum. On September 23, Brandon emailed Behnke
to offer her assistance in pursuing the issues and concerns raised at the meeting, noting that she
“met recently with two psychologists who are at DOD Counter Intelligence Field Activity
(CIFA), one of whom was at that meeting (Scott Schumate [sic]). Both are looking for ways to
engage good psychology—and good science—in what they and their colleagues do. Part of that
is confronting some of the issues raised at that meeting.”878
In a side conversation several weeks
later, Mumford emphasized that they needed to “keep the pressure on to do something,” in part
because “Schumate [sic] expressed some disappointment yesterday that APA wasn’t more public
about convening such a meeting and I’m with him on that . . . so maybe we can talk about the
value of demonstrating leadership more openly.”879 Brandon added that she “heard the same
from Scott [Shumate] and Kirk [Kennedy].”880 Mumford and Brandon continued to discuss how
best to motivate Behnke to push forward APA’s response on this issue.
Sidley spoke to Brandon, Mumford, Shumate, and Kennedy regarding this issue, and they
clarified that they wanted APA to publicly acknowledge their leadership on these issues.
Brandon said that it was important to her for APA to acknowledge that psychologists were facing
ethical issues, and Mumford said that he agreed that it would have been beneficial to be
proactive in a more public and transparent way to demonstrate leadership on this issue.881
Kennedy confirmed that he had pushed the APA to have these ethics discussions because he
wanted to support efforts to develop ethical methods of educing information, and because he
knew that information would eventually come out about psychologists’ involvement in
interrogations that would make them look bad.882 Shumate also explained that it was
“incumbent on the key players” to keep the ball rolling on this fundamentally important question,
particularly with respect to pushing for research on these complicated issues.883
Even as the APA began to seriously consider the ethical issues raised by psychologists’
involvement in interrogations in the latter half of 2004,884 media pressure continued to build. On
strategies to advance homeland and national security.” APA_0021076. There is no evidence to suggest
that this idea ever advanced any further.
877 APA_0128910.
878 APA_0022373.
879 Id. (ellipsis in original).
880 Id.
881 Brandon interview (May 26, 2015); Mumford interview (May 15, 2015).
882 Kennedy interview (May 28, 2015).
883 Shumate interview (June 24, 2015).
884 Although APA did not immediately follow up on the ethics and national security forum, Science
Directorate staff eventually presented it as a precursor to the establishment of the PENS Task Force. In
February 2005, a story in SPIN noted that Levant established the PENS Task Force as an “outgrowth” of
the July 20 meeting and media attention focused on interrogation practices at Abu Ghraib.
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August 20, Steven Miles published an article in The Lancet titled “Abu Ghraib: Its Legacy for
Military Medicine.”885 The article alleged that Army doctors stationed at Abu Ghraib had
designed and implemented coercive interrogation techniques and deliberately covered up torture
and other human rights abuses by falsifying medical records. And on November 30, 2004, Neil
Lewis published an article in the New York Times that served as a watershed moment for the
APA, forcing the association to take action and make a public stand on psychologists’
participation in interrogations in the national security context
885 Steven H. Miles, Abu Ghraib: Its Legacy for Military Medicine, The Lancet (Aug 2004), available at
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THE PRESIDENTIAL TASK FORCE ON ETHICS AND NATIONAL SECURITY (“PENS”)
AND INITIAL AFTERMATH
This section discusses the significant aspects surrounding the development and
discussions of the PENS Task Force. It recounts the formulation of the task force starting in late
2004 and early 2005, the task force exchanges and meetings through the spring and early
summer of 2005, and the PENS report and its approval in late June and early July 2005. The
section also covers the immediate aftermath of the report and interconnected issues that occurred
one and two years after the PENS report was completed. Additional actions that followed from
the PENS Task Force in later months and years, such as supplemental APA resolutions or
government-related interactions, are discussed in the next section of this report.
I.
CREATION OF PENS TASK FORCE AND SELECTION OF MEMBERS
Discussions were renewed and sharpened at APA in late 2004 and early 2005 about
creating a task force focused on ethics and national security. It is clear from the
contemporaneous emails that the cause of this renewed discussion was a late November 2004
New York Times article discussing psychologists’ roles in interrogation settings at Guantanamo
Bay and Iraq, and subsequent articles.886
A.
November 29, 2004-January 4, 2005: Neil Lewis’s New York Times Article
and Early Discussions of a Task Force
1.
The November 30 article and resulting internal APA discussions and
reaction
On November 30, 2004, the New York Times published a front-page article by Neil Lewis
titled “Red Cross Finds Detainee Abuse in Guantanamo Bay,” which described the findings of a
recent confidential report by the International Committee of the Red Cross (“ICRC”).887 The
ICRC report, according to Lewis, documented psychological and physical coercion techniques
that were “tantamount to torture.” The article noted that some detainees were subject to “loud
and persistent noise and music,” to “prolonged cold,” and to “some beatings.”888 The article also
886 We found no evidence that APA was motivated at the the time to create the PENS Task Force in order
to endorse or accommodate guidance from the Department of Justice’s Office of Legal Counsel (“OLC”) ,
under which harsh interrogation techniques were not torture if a psychologist or other relevant expert says
the technique to be applied will not cause severe physical or psychological suffering. Relatedly, critics
have alleged that the timing of the task force coincided with an internal debate within the CIA about the
role of so-called enhanced interrogation techniques and human research standards in light of a May 2005
OLC’s memorandum that reaffirmed the use of interrogation tactics including waterboarding. We found
evidence that APA was not involved in this debate, though, as previously mentioned, our access into DoD
and CIA actions and communications during this time was limited.
887 Neil Lewis, Red Cross Finds Detainee Abuse in Guantanamo, New York Times (Nov. 30, 2004),
888 Id. The article described these techniques further into the article: “one regular procedure was making
uncooperative prisoners strip to their underwear, having them sit in a chair while shackled hand and foot
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directly implicated psychologists who assisted with interrogations at Guantanamo Bay. It
described “Behavioral Science Consultation Teams” (commonly referred to as “BSCTs” or
“Biscuits”)—groups composed of a psychiatrist, a psychologist and psychological support staff
according to the article—that “conveyed information about prisoners’ mental health and
vulnerabilities to interrogators” to assist with interrogations.889
The ICRC report also noted that
BSCTs conferred with medical personnel about the “medical situations of detainees,” which may
have led to distrust between detainees and the treating doctor. The article cited concerns over
whether health professionals, in light of their ethical codes, should be present at Guantanamo
Bay while these abuses occurred. Lewis also discussed how some of the abusive techniques
were possible given the guidance from the OLC on what (narrow) methods constituted torture.890
After seeing the article posted online on the evening of November 29, Stephen Behnke
forwarded it that evening to Michael Honaker, Nathalie Gilfoyle, Lindsay Childress-Beatty,
Rhea Farberman, Geoffrey Mumford, and Steven Breckler.891 In his email, Behnke stated “there
will be some fallout” from the article, but that it was “very difficult to predict what it will be.”892
This launched an internal email discussion among top APA staff during the afternoon of
November 30 about whether to issue a statement in response to the article. Farberman cautioned
that “we don't want to condemn the work [of] some psychologists when we don't know all facts
and we also don't want to take sides in a disagreement between the Red Cross and the White
House.”893 Behnke agreed that the “information we have is limited to what is in the media” and
suggested the following communications strategy on the issue:
I think our message should be, at least in part: 1) APA has an ethics code, which
its members agree to abide by; 2) The media provides few facts about very
complicated situations. These situations require a full understanding of the facts
before any assessment can be made regarding whether a particular behavior is
ethically appropriate or problematic; 3) APA works to promote “the highest
standards of professional ethics” (From APA Bylaws) in all areas of psychology--
to a bolt in the floor, and forcing them to endure strobe lights and loud rock and rap music played through
two close loudspeakers, while the air-conditioning was turned up to maximum levels.”.
889 Id. A December 10, 2004 Army Standard Operating Procedure changed this to a team of
psychologists, discussed further below.
890 Neil Lewis, Red Cross Finds Detainee Abuse in Guantanamo, New York Times (Nov. 30, 2004),
available at http://www.nytimes.com/2004/11/30/politics/30gitmo.html?pagewanted=all. Lewis did not
specifically use the term OLC, but referred to “a team of administration lawyers” who had “accepted a
view first advocated by the Justice Department that the president had wide powers in authorizing coercive
treatment of detainees.”
891 APA_0021920.
892 Id.
893 APA_0021923.
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research, education, and practice--and has an Ethics Committee that reviews
complaints concerning psychologists’ behavior.894
Gilfoyle responded,
[t]hat all sounds good as far as it goes but the tougher point to me is the question
- which seems inevitable - of whether psychologists can legitimately/ethically
work with interrogators to identify ways of ‘breaking down’ a prisoner that fall
short of torture. I think the answer to that is probably ‘yes’, but that is quite tricky
to get across without creating a sound bite that could be disastrous. Maybe the
answer is ‘no’ which would be easier. But somehow the easy answer is rarely the
correct one, it seems. Anyway it is a question to be ready for.895
In her response, Gilfoyle was candidly putting her finger on one of the fundamental
problems for APA in taking a position of “engagement”—a position that psychologists could
continue to engage in interrogation work at Guantanamo Bay and elsewhere. If there were
circumstances in which “breaking down” an uncooperative detainee falls short of “torture”
(presumably depending on how the word is defined), and if therefore APA might announce that
it was ethical for psychologists to participate in this activity, then providing a public explanation
of this position with the necessary level of detail could be a public-relations disaster (“quite
tricky to get across without creating a sound bite that could be disastrous”). This problem would
remain with APA throughout the PENS process.
Behnke’s response 15 minutes later was telling, both because it reveals the strategic and
PR way in which he thought about this ethics issue and because one can see how this approach
(in combination with other factors) led directly to the highly and intentionally limited nature of
the PENS report. Behnke responded:
I think our ethics program has gotten pretty good at avoiding ‘yes-no’ type
responses (except in clear cases, e.g., it's not acceptable to become sexually
involved with a patient), and I think that should be our first line of approach here.
I would encourage us to be mindful that we are a scientific organization, so that as
an initial matter we look to the science (e.g., what data do we have to indicate that
this technique is effective? Do we have data to indicate that this technique
is more effective than other techniques that would present less risk of harm?) I
would point out that since some of the research in this area is classified, we do
not have all the information we may need for a complete ethical analysis. In any
instance, we would want to understand the facts, circumstances, and
context surrounding a particular behavior before we could determine whether it
was ethically appropriate
We need to have a context before we can determine
whether a particular behavior is ethically appropriate or problematic in national
security-related context.896
894 Id.
895 APA_0021923.
896 Id.
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Behnke also articulated this strategy of avoiding the difficult questions by playing up the
lack of perfect knowledge regarding both facts and “context” in a similar exchange with
Farberman in the same group email:
It seems that there are many possible variations in the facts which could lead us to
very different ways of thinking about the ethics. Consider, for example: 1) A
psychologist who is consultant to a [sic] interrogation team. The psychologist
provides information to the team (e.g., the effects of sleep deprivation), but it
is the team that makes the decision about how to proceed and use the information
the psychologist has provided. [Gives two other scenarios.] One could go on at
some length, but I think it's very important for us to be mindful of how dependent
our ethical assessment will be on the facts and nuances
What we are talking
about now--investigations related to national-security--is an area of psychology in
which the ethics are not well developed, and I think we need to be very respectful
of the fact that much thinking and development needs to take place before we can
begin to declare certain practices ethical or not.897
Farberman responded enthusiastically: “Steve - AMEN!! That's exactly the right
response.”898
On December 1, APA leadership held an internal meeting to discuss the article and next
steps.899
By Friday, December 3, 2004, APA had prepared a statement in response to inquiries
arising out of the Lewis article, which closely followed Behnke’s initial thoughts on November
30, 2004.900 The statement said in part that evaluating the ethical nature of behaviors was
“highly dependent on knowing the facts and circumstances surrounding a behavior,” and that
APA was “extremely limited” in its knowledge of psychologists’ roles in places like
Guantanamo Bay and Abu Ghraib. It closed with a reassurance that APA would continue to
promote the “highest standards of professional ethics,” and would confer with relevant
psychologists about “whether APA had given adequate ethical guidance” in these settings.901
897 APA_0032795.
898 Id.
899 APA_0058569. In a separate email exchange, Board member Barry Anton asked Steve Behnke how
the meeting went. APA_0058544. Behnke said that “we all felt comfortable in formulating a response to
inquiries that makes two points,” and then summarized for Anton the points discussed in the text, which,
as articulated by Behnke in this email, became the actual draft statement issued by APA. In summary,
Behnke said, APA can’t make ethical judgments because it doesn’t have enough facts to know “the
context of [the] behavior,” even though APA “has given less thought” to the ethics of national security
investigations, APA “will continue to promote the highest standards of professional ethics and conduct by
enforcing its ethics code and by ensuring that its ethical standards adequately speak to new areas of
practice.”
(emphasis added) As we observed at many points in this investigation, Behnke took the lead in
drafting APA’s response, and his language was used virtually verbatim as APA’s statement.
900 APA_0023309.
901 Id.
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Behnke’s comment that “much thinking and development needs to take place” on the
issues before ethical declarations could obviously be considered a fair substantive point. But
APA ended up pursuing its course of action not based on additional “thinking and development”
on ethics issues, but on strategic and PR considerations. If Behnke and APA had declined to
issue ethical guidance or take an ethical position on the issue for (say) 12 months while they
carefully studied issues of torture, interrogation practices, the role of health care practitioners in
interrogations, and ethical issues relating to war and capture, and publicly explained that they
were not issuing guidance because this study was taking place, that would be one thing. But
APA did the opposite.
As set out below, in order both to address perceived PR concerns (that APA’s silence on
these issues was costly from a perception standpoint because it showed an absence of leadership
and relevance), and to please the Defense Department (which wanted both timely action from
APA that would reflect positively on DoD, and ethical guidelines that gave DoD substantial
flexibility and were as close as possible to existing or draft DoD policies on the topic), APA
issued a task force report that evaded the difficult questions that APA knew inevitably needed to
be answered if psychologists were to be authorized to engage in interrogation activities.
Simultaneous with its PENS report, APA claimed that (1) the report was not evasive but was in
fact a clear, strong, pro-human rights statement against torture; (2) the report was evidence of
APA acting as a “leader” on this issue; (3) the report provided “clear guidance” on this issue; and
(4) it was unfair to label the report as evasive because (a) the issue was complicated (so they
needed more time), (b) they needed more facts (even though the contemporaneous emails show
they expected to never obtain meaningful facts because of the activity’s classified nature), and
(c) the report should be seen as merely an “initial step” with the promise of a more detailed
“casebook” (which never occurred).902
In one of his interviews with Sidley, Behnke defended the PENS approach on the ground
that APA was new to these issues and, thus, did not wish to go “too far in either direction” at this
point in time.903
But as set out below, the evidence shows that what explains the PENS report is
a desire to please DoD by following its requests about how to proceed, and the desire to create a
positive-sounding policy statement in a short time frame in order to respond to the pressure of
negative press reports.
902 This was occurring five months after Behnke and Mumford had convened the group of CIA, FBI, and
academic psychologists and psychiatrists for a confidential discussion at APA in July 2004 on the issue.
In another part of the email exchange on November 30 following Behnke’s initial email about the New
York Times article, Mumford asked Farberman and Behnke (copying the rest of the group) if the Board of
Directors or Council of Representatives had been informed of the July 2004 meeting. Mumford
suggested that “we might want to note that we’ve at least attempted to take some leadership role in
initiating a dialogue on the issue,” and then included a proposed statement regarding APA’s initiation of a
dialogue. Mumford added, “of course this begs the question ‘what next?’ to which I haven’t got a good
answer.” Behnke responded that the meeting had not been brought to the attention of the Board or the
Council, but that it had been discussed at an Ethics Committee meeting with Board liaison Barry Anton
present, and was going to be mentioned at the December Board meeting. APA_0023859.
903 Behnke interview (May 22, 2015).
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2.
Follow up discussions, including of Newman/Dunivin conflict of interest
By early December, APA members had already begun drafting letters to the organization
about inquiring into or investigating the claims raised in the Lewis article.904 On the morning of
Monday, December 6, President-Elect Ron Levant emailed CEO Norman Anderson (copying
APA President Diane Halpern and former APA President Patrick DeLeon) in order to forward a
message from a psychologist who had sent Levant one such letter. Levant asked Anderson if
APA staff could begin looking into the issue to “find out what known facts are” because the
issue “appears to be heading for [the Council of Representatives] in February.”905 Anderson
responded that APA could gather “the facts as they start to come out” but that “it might be hard
to get more (and more accurate) information than the newspapers are getting.” Anderson said
that “[w]e of course know psychologists at the military base there,” but that “given the sensitivity
of the issue and the fact that psychologist are being implicated, that might be a little tricky.”906
Anderson also mentioned that Farberman had prepared a draft statement in case it was necessary,
and that it was being sent to the Board.
In response to Anderson’s reply, DeLeon emailed Anderson without copying the others
and inquired whether Anderson knew that Debra Dunivin, wife of APA Practice Directorate
Executive Director, Russ Newman, was stationed at Guantanamo Bay: “[You] do know that
Russ’s wife is there.” Anderson replied that he was aware of this.907 Anderson told Sidley that
he knew Dunivin had been deployed to Guantanamo but was not sure whether he was fully
aware of her role at Guantanamo at the time. Anderson conceded, however, that he should have
explored the issue further with Newman at the time but did not.908
That evening, APA’s prepared statement was sent to the Council of Representatives.909
In response, Division 48 Council Representative Corann Okorodudu posted on the Council
listserv on December 7 that her Division had “deep concerns” about the Guantanamo Bay issue
and that she and other Divisions might submit a “New Business Item” to “allow discussion on
the item” at the February Council meeting.910 APA Board Member and Treasurer Gerald
Koocher (who had recently been elected APA President for 2006) responded that there was no
point in “discussing this item” unless it was tied to a “proposed action,” and action was
impossible before one could determine whether the “undocumented allegations” were true.
904 See, e.g, APA_0844973 (“Such activities are a cause for moral outrage and harm the public trust in the
profession of psychology. We call upon APA to issue a statement, at once, indicating that psychologists
working to abet the use of physical and psychological abuse in practices of interrogation are in serious
violation of ethical standards of the profession. We call upon APA to investigate the allegations and to
take appropriate actions based upon its investigations.”).
905 APA_0185943. The APA Council of Representatives meets twice a year, in February and August.
906 Id.
907 Id.
908 Anderson interview (June 23, 2015).
909 APA_0058517.
910 APA_0032605.
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Koocher suggested it would be better “to propose development of a study or investigative task
force (using discretionary funds) that would see what data are available and produce a report and
recommendations for the August Council meeting[.]”911 Okorodudu responded that Koocher’s
task force idea was part of what she would like to propose at the February meeting.912
This was the first reference our investigation found to a potential task force apart from
Behnke’s mention of a potential task force in summer 2004.913 Notably, Koocher was proposing
it both in reaction to a desire for a more expeditious discussion by Division 48 (potentially to
pre-empt an action that might be coming at the February Council meeting), and as an
“investigative” task force. Later, Koocher, Behnke and others would strenuously claim that the
PENS Task Force was explicitly not set up to investigate potential past abuses or find facts.914
Meanwhile, Mumford had followed up on the original November 30 internal email
exchange about the New York Times article by forwarding Behnke’s initial email to Kirk
Kennedy—former CIA and then-Defense Department official who headed a unit within the
Counterintelligence Field Activity (“CIFA”). Mumford asked Kennedy what he knew about the
Lewis article and the BSCT teams. Kennedy’s first response, on November 30, was that he
“wish[ed]” he knew something and that he had “no idea what is going on down at GTMO.”915
On December 9, Kennedy followed up to inform Mumford that a source told him that Newman’s
wife, Dunivin, was currently stationed at Guantanamo Bay as a member of the “JTF BSCT.”916
Mumford responded that Heather Kelly was aware of Dunivin’s deployment but that he and
Kelly were unsure “about what she was doing down there.”917
When Sidley asked Kennedy (currently with the FBI) about this email, he said that it was
immediately clear to him that the Newman-Dunivin relationship was an obvious conflict of
911 Id.
912 Division 48’s New Business Item was ultimately withdrawn since the Board approved the PENS Task
Force before the February Council meeting.
913 See APA_0084947.
914 APA continued to received other letters and comments requesting some sort of investigation into the
issues. For instance, on December 10, former APA President Phil Zimbardo forwarded Behnke an email
he had received from a psychologist asking for APA to respond to the Red Cross’ report which, she said,
showed “an absurd abuse of the professional ethics within the field of psychology.” In his email to the
psychologist and Behnke, Zimbardo said, “I will try to send this to him and request that you and others
feel there should be an ethics investigation started regarding these charges.” APA_0032566.
915 APA_0021862. Kennedy’s email also mentioned that he had attended “an annual conference of
cleared psychologists” (meaning psychologists with security clearances) where this issue was discussed.
At the time, this annual conference was called the Special Applications of Psychology Conference.
Behnke was invited to address the conference in October 2005, as described below.
916 Id.
(“I thought that you would be very interested to learn that Russ Newman’s wife is an Army Lt. Col
psychologist currently stationed at ‘GTMO’ and is currently a member of the ‘JTF BSCT’ per note (from
a source that will remain anonymous - sort of spooky huh?”)). The email also contains more detail about
Dunivin and her background from Kennedy’s source.
917 Id.
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interest for both Newman and APA. He added that if APA weighed in publicly on the issue of
interrogation settings, APA was going to have a problem unless it disclosed the Newman-
Dunivin relationship and recused Newman from any involvement with the development of its
ethics position.918
As set out below, Newman in fact was involved in the PENS Task Force
process in significant ways, ranging from the initial discussions among staff and the Board about
forming the task force in January and February to the task force meetings themselves in June;
and Dunivin was involved in a critical way in discussions about the composition of the task force
in February and March.
In response to Kennedy’s email, Mumford shared with Kennedy the statement APA had
sent to the Council. Kennedy then urged APA to take strong action to support and guide
military psychologists:
I think it behooves APA’s Ethics office to put out a statement that both guides and
supports military psychologists. Can you imagine a poor Navy psych intern being
assigned to GTMO thinking they were going down there to provide psychological
support to soldiers only to be diverted to consulting on interrogations? What
would APA do to support a psychologist in this situation? This is just one
example of why APA and DoD need to have a rapprochement. The main reason
however is that DoD is probably the largest employer of psychologists in the U.S.
However, I think an APA Ethics statement would have a minimal impact if issued
in isolation. Context, as you know is so important. I would advocate for such a
position paper to be embedded in an APA Monitor devoted to Psychology in the
Dept. of Defense. We could contribute an article on the CI [counter-intelligence]
psychology community in DoD. I could suggest names of psychologists,
including a past president of APA, who could provide erudite comments to
interview questions on military psychology issues. An APA Monitor might go a
long way to building the rapprochement.919
Mumford replied that he would run these thoughts up through APA for reactions.
Kennedy responded, “I look forward to further dialogue - and most importantly, action - on
these issues.”920
3.
Initial Board discussion of the Task Force
The possibility of forming a task force was explicitly discussed during APA’s Board of
Directors meetings between December 10 - 12, 2004.921 Anderson told Sidley that there was
918 Kennedy interview (May 28, 2015).
919 APA_0021862 (emphasis added).
920 Id.
921 The meeting minutes do not indicate a specific discussion about the task force, but emails indicate the
task force was discussed during the Board meeting. For instance, Koocher emailed a colleague on
December 6 that the “Board of Directors will be discuss[ing] this in December.” See APA_0058532.
And on December 7, Barry Anton emailed Koocher and Carol Goodheart that the Board meetings would
discuss a “response from APA regarding prisoner abuses at Guantanamo [Bay] .” APA_0032527.
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great amount of Board discussion about the topic over these meetings.922 Behnke had drafted a
task force proposal and had provided his draft proposal to Barry Anton in advance of the
December Board meeting.923 Anton may have brought it to the meeting so that funding of a
future task force could be discussed.924
The draft proposal is very similar to the task force proposal ultimately approved by the
Board in February 2005. Both this draft proposal and the final proposal refer to national
security-related “investigations” as opposed to interrogations. A notable change between this
draft version and the final version is that the word “coercive” is removed in the Board version.925
As discussed in greater depth below, Russ Newman appears to have been the originator of this
change.
On December 21, Behnke emailed Levant to follow up on the Board’s discussion.
Behnke said that he understood that the Board had determined that funding should be provided
for a task force on the subject, and opined that “this decision was exactly correct, given the
sensitivity and potential volatility of the subject, as well as the tone of a Council item that will be
put forward in February” (a reference to the proposed Division 48 item discussed above).
Behnke said that the Ethics Office would be “happy to provide staffing” or otherwise assist with
the task force and “would be happy to suggest individuals” to serve on it. He observed that
“some of the people who attended the meeting at APA last July on ethics and national security-
related investigations and research would be very good.” Behnke specifically mentioned that
922 Anderson interview (June 23, 2015).
923 APA_0058507; APA_0058508 (draft proposal). At the same time that the Board was meeting, DoD
Joint Task Force at Guantanamo Bay issued a revised policy governing the operations of the BSCT team
there. Among others things, this December 10, 2004 Operational Policy Memorandum defined the BSCT
team as two psychologists and one mental health specialist who would provide “psychological”
consultation in order to “support safe, legal, ethical, and effective interrogation and detention operations
at JTF-GTMO.” See Operational Policy Memorandum #14, Behavioral Science Consultation Team
guantanamo-testimonials-project/testimonies/testimonies-of-standard-operating-
procedures/bsct_sop_2004.pdf. In contrast, the prior policy document on this topic had defined the BSCT
team as one psychiatrist and one psychologist who would provide “behavioral science” consultation in
support of the interrogation mission. See BSCT Standard Operating Procedures, DoD Memorandum
making it clear that the BSCT team was solely about psychological consultation by psychologists (not
psychiatrists), the addition of the phrase “safe, legal, ethical and effective” is significant, as discussed in
greater detail below.
924 See APA_0058479.
925 Compare December 2004 draft proposal, APA_0058508 (“What does current research tell us about the
efficacy of coercive techniques? How would our ethics be affected, if at all, were coercive techniques
found to be effective?”) with February 2005 final proposal, APA_0025740 (“What does current research
tell us about the efficacy and effectiveness of various investigative techniques? Would the efficacy and
effectiveness of various investigative techniques, if demonstrated, affect our ethics?).
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Robert Kinscherff, a friend and then-chair of the APA Committee on Legal Issues (“COLI”),
“would make an excellent chair.”926
In a follow up December 22 email, Behnke suggested that the funding be increased from
$7,500 (the amount tentatively decided upon at the December Board meeting) to $12,500 so that
10 members (rather than six, based on the lower level of funding) could serve on the task force,
since “several groups will want representation on the task force.”927 Behnke told Sidley he was
referring to staffing the task force with subject matter experts and representatives from Divisions
with special interests in the matter.928
B.
Preliminary Suggestions for Task Force Members, and Russ Newman’s
Involvement: January 4 - 18, 2005
Early January 2005 brought additional media reports regarding the role of psychologists
in interrogation settings and, with it, added urgency from APA to form a task force. Within short
order, key APA staff began collecting potential names for the task force.
The conflict of interest on this issue resulting from Russ Newman, the head of the
Practice Directorate, being married to Debra Dunivin, the lead Army BSCT psychologist at
Guantanamo Bay, was explicitly raised internally and then ignored. Newman became involved
in the discussions about the task force nominees and connected with Morgan Banks (the chief
Army psychologist with the Army Special Operations Command and psychology leader of the
SERE school at Fort Bragg), bringing his suggestions to the staff group.
1.
Strategic discussions about lack of “evidence”; Mumford’s unsuccessful
attempt to raise the Newman/Dunivin conflict of interest
On December 31, Neil Lewis published another article which focused on the
interrogation of Guantanamo Bay detainee Mohammed al-Qahtani and said that BSCT teams had
been used by interrogators to help “break down” uncooperative detainees during
interrogations.929
This article was forwarded to a listserv Levant was on, and he forwarded the
article to Behnke and APA’s Executive Management Group (“EMG”) on January 3, stating,
“[w]e need to get our TF on national security up and running.”930
926 APA_0058479.
927 APA_0033515.
928 Behnke interview (May 22, 2015).
929 Neil Lewis, Fresh Details Emerge on Harsh Methods at Guantanamo, New York Times (Jan. 1,
(“The interrogators also discussed another factor in the Red Cross report, the use of a Behavioral Science
Consultation Team, known as Biscuit, comprising a psychologist or psychiatrist and psychiatric workers.
The team was used to suggest ways to make prisoners more cooperative in interrogations. ‘They were
supposed to help us break them down,’ one said.”).
930 APA_0033681. The therapist who forwarded the article to the listserv commented, “As mental health
professionals, I think it is critical that we use all available platforms to decry the use of psychological
knowledge and skills to contribute to torture.” Id.
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In an email exchange on January 4 and 5 between Koocher, Levant, and Behnke about
this article, Koocher pointedly suggested that APA would never be able to obtain any “hard data”
about whether psychologists were committing abuses at Guantanamo Bay, and therefore as a
matter of strategy, APA should simply continue to issue public statements saying it was
“concerned” and would look into the matter as soon as such hard data became available
(knowing that it never would).931 Behnke responded that he agreed, and added that “our
colleagues in Division 19 [Military Psychology] . . . are especially sensitive to (the appearance
of) ethical judgments in the absence of hard data about what has actually occurred.” Koocher
responded that the concern about Division 19 sensitivity was “why I was trying to suggest” the
approach he had suggested in his email.932
After Levant agreed and added Farberman and Gilfoyle to the email, Behnke then
forwarded to the group the statement APA had sent to Council on December 6 and said he did
not think there was much to add. Koocher responded, “Right! We should probably simply
[r]epeat same until ‘evidence’ of anything becomes public in 2055.”933 In other words, Koocher
was pointing out that since it was very unlikely that any confirmation of the alleged abuses
would come out for 50 years (when classified information tends to become unclassified), APA
would be safe by simply repeating the statement it had previously made—that it effectively stood
ready to investigate and enforce its Ethics Code if facts emerged, and it could not make ethical
assessments until “all the relevant facts and circumstances emerge[d].”934
Later in the evening of January 3, Georgetown Law Professor Gregg Bloche contacted
Behnke for comment on his and Jonathan Marks’s upcoming articles in the New England
931 APA_0033612 (Koocher noted that APA almost certainly could not receive confidential documents or
information from the New York Times or from the government through a FOIA request, and suggested
that APA should “simply prepare (with Rhea’s help) an expression of concern about ‘undocumented
allegations’, while expressing a willingness to look into the situation if/when appropriate documentation
‘becomes available.’ ”).
932 Id.
933 Id.
934 Id. Critical commentary continued on the Council of Representatives listserv regarding APA’s
statement after the Neil Lewis article, with one Council delegate forwarding as support an email from a
psychologist who said that APA’s statement was “seriously inadequate
One can hardly imagine more
egregious violations of ethical standards of psychological practice. The statement does not seem to
recognize that these alleged acts are, if confirmed, not only highly unusual, but far more grave than the
sort of ethical violations that are generally encountered. Furthermore, the APA statement fails to
recognize that the allegations are not made by individuals whose reliability is completely unknown, but
by the International Red Cross, whose reliability if very well known.” Koocher responded to the Council
delegate in a one-line post, asking if she “will give suggestions for how APA might obtain the data
needed to investigate?” (The statement is ironic in light of the fact that APA generally took no efforts to
“obtain data” one might use to investigate these matters, as set out later in this report.) This exchange on
the Council listserv then prompted a short email exchange between Behnke, Farberman, and Gilfoyle.
Gilfoyle said, “well, there you have it.” Farberman responded, “These people just love to make my job
harder . . .!” APA_0058786. In this email exchange and other emails we have found, APA staff often did
not address the substantive points made in the original post regarding the unusual and egregious nature of
the allegations and the reliability of the ICRC in making the allegations.
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Journal of Medicine and the Los Angeles Times about medical professionals’ roles in
interrogation settings at Guantanamo Bay.935 Bloche, a law school classmate of Behnke’s, noted
that psychologists in BSCTs have been “much more heavily involved than psychiatrists” in
interrogations and inquired whether APA had “issued any relevant guidance (or does it plan
to)?”936
Bloche and Marks’ pieces were published on January 6 and January 9, 2005 in the New
England Journal of Medicine and the Los Angeles Times, respectively.937
On the evening of January 3, Behnke forwarded Bloche’s message to Honaker, Gilfoyle,
Farberman, and Mumford with a note that he would speak to Bloche off-the-record and convey
to Bloche that APA would, among other things, “very actively . . . examine whether our Ethics
Code gives adequate guidance to psychologists in such situations, as it is my understanding the
American Psychiatric Association is doing as well.”938
Mumford responded that when they had met in early December, “it seemed there was a
sense (a hope?) among some in the room that the story would die but it has, in fact, been part of
the news cycle pretty consistently for over a month now.” Apparently unaware of Behnke’s,
Koocher’s, Levant’s, and the Board’s communications in December about a potential task force,
Mumford suggested that “APA might want to be in a position of being able to say we have
something at the level of a ‘Task Force’ (or whatever)” to indicate that APA had made the issue
a high priority.939
In addition, Mumford explicitly (and delicately) raised the conflict of interest concern
that Kennedy had raised with him in December regarding Dunivin being married to Newman:
I’m not quite sure how to put this, but are there issues of perception that we
should be concerned about if the wife of the Practice Directorate ED has in fact
935 APA_0023355. Bloche had given Behnke some advance warning about this article, emailing him on
December 20 that “we’ll have a piece on docs & interrogation (at Gitmo and Abu G) coming out in the
Jan. 6 NEJM. I’m learning much more about the role of psychologists than I was able to put in this piece
. . . .” Behnke forwarded this email to Gilfoyle and said, “Gregg is very smart and very aggressive - this
message makes me wonder what he’s found.” Gilfoyle responded, “[S]ounds like we would want to
know that?” APA_0033343.
936 APA_0023355.
937 See Gregg Bloche & Jonathan Marks, When Doctors go to War, New England Journal of Medicine
Jonathan Marks, Doctor’s Orders - Spill Your Guts, Jan. 9, 2005
(http://articles.latimes.com/2005/jan/09/opinion/op-brutality9?). In an interview and correspondence with
Sidley, Bloche said that he met with Behnke in January 2005 and had implored him (1) to accept
international legal definitions of torture and not defer to the Bush Administration’s “contorted redefinition
of torture” vis-à-vis the John Yoo and Jay Bybee Office of Legal Counsel (“OLC”) memos, and (2) to
reject the Bush Administration’s argument that psychiatrists and psychologists were not subject to their
professions’ ethics codes in interrogation settings since they were not acting in traditional clinical roles.
Bloche interview (May 7, 2015); Email from Bloche to Sidley (May 11, 2015).
938 APA_0023355.
939 Id.
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been deployed to Guantanamo Bay? Presumably, what she does is classified in
which case I would not expect Russ to have any additional insight but if our level
of activity as an association on this set of issues were questioned, that may be an
awkward situation to try and explain and it doesn't appear to be a secret that she’s
been down there. Just my 2 cents…940
Chief Operating Officer Mike Honaker rejected the conflict of interest concern: “[S]ince
spouses are not employed by or represent APA we do not need to know anything about what
they do.”941
Neither Farberman, Gilfoyle, nor Behnke made any comment in the email exchange
about the conflict of interest.
Despite the fact that Honaker was the second-highest ranking officer in the organization
and the subject of the conflict of interest point was the powerful (and aggressive) Executive
Director of the Practice Directorate (the largest and most prominent directorate within APA),
Mumford continued to raise the conflict of interest issue the next day in an email just with
Honaker, apparently following a meeting that the group had on January 4 to discuss the issue of
how to proceed. In his email, Mumford said that he “understood what you were saying
yesterday,” but noted that Dunivin was a “voting member of Council.”942 Honaker responded,
“but again, do we review what all [C]ouncil members are doing?” Mumford responded one
more time, then dropped it: “no it[’]s just that Council members make policy for the association
so I guess it just puts her closer to the category of ‘representing APA.’ Not trying to put too fine
a point on it . . . just a heads-up
last tag.”943
Honaker told Sidley that his response to Mumford was not addressing the Newman-
Dunivin conflict issue specifically, but related to a different discussion that was occurring around
the same time about the inappropriateness of inquiring into the work backgrounds of spouses of
APA officials or employees, or the backgrounds of Council members. When asked how one
could understand his email responses as anything other than a response to Mumford’s direct
expression of a concern about Newman and Dunivin, Honaker insisted that he was not
responding to Mumford’s point but was referencing a different discussion. We asked for details
or more information regarding prior discussions about generally not inquiring into the work
background of spouses, and he said he could not recall any further details and had “no
documentation” for this. He knew that it appeared from this email exchange that he was
specifically addressing the Newman-Dunivin point, but he was not, because he believed that
Mumford made a good point and he believed that the Newman-Dunivin situation was a
significant concern.944
940 Id. (ellipses in original).
941 APA_0030060.
942 Id.
943 Id.
944 Honaker interview (June 23, 2015).
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By the first week of January 2005, then, the conflict of interest issue involving Newman
and Dunivin had been raised three separate times945 in these interrogation discussions—
December 7, 2004 between DeLeon and Anderson; December 9, 2004 between Kennedy and
Mumford; and January 4, 2005 with Mumford and several members of APA leadership. More
about APA’s thoughts on Newman’s conflict of interest is discussed below in our summary of
the PENS task force observers.
2.
Staff recommendations regarding task force nominees, and initial
involvement of Morgan Banks
Conversations about who should serve on the task force began immediately. On January
5, Kelly informed Mumford that she “put out the word to Div[ision] 19 and other defense types”
about gathering names for the task force, and that Koocher and Levant had suggested Larry
James and Morgan Sammons.946 Kelly also asked Kirk Kennedy on January 5 if he would be
willing to serve on a potential task force that APA was putting together.947 Mumford emailed
Scott Gerwehr at the RAND Corporation and Susan Brandon, former APA Senior Scientist and
then at the Office of Science Technology and Policy (“OSTP”), on January 5 requesting task
force names as well.948
Also on January 5, Mumford, Kelly and Behnke met with Mike Honaker, Steve Breckler
(Executive Director of the Science Directorate), and Russ Newman; the two related topics were
potential task force members and the attempt to get involved with the Army Surgeon General’s
policy development effort, as revealed in the Bloche and Marks article.949 In a follow up email,
Mumford referenced Newman’s “Special Ops colleagues”—a reference to Army Special
945 Dunivin’s marriage with Newman had previously raised concerns at APA. In October 2004, a Council
member flagged Dunivin’s marriage as a potential conflict of interest in her running for a position on the
Finance Committee. Dunivin ultimately withdrew her nomination for the committee. See
APA_0138161.
946 APA_0023328.
947 APA_0129713. Kennedy responded that he was interested “in principle” but wanted to discuss it with
Kelly so he could “know the parameters of what I would be asked to do so I could run it past the powers
that be here at CIFA.” Kennedy’s boss, Scott Shumate, ended up serving on the PENS Task Force.
948 APA_0023327; APA_0030104. Gerwehr suggested a variety of potential names for the task force,
none of whom were selected. See APA_0023327 (“[T]here are a few names that spring to mind as
slightly off the path you might have taken[.] (I assume you've considered all the usual suspects:
Zimbardo, Cialdini, Petty, Cacioppo, Eagly, Chaiken, Nisbett, Frank, O'Sullivan, Ekman, etc., etc.) Dan
Lassiter (false and coerced confessions), Anne Peplau (problematic close relationships, gender and sexual
orientation issues), Jim Sidanius (power, authority, race), Anthony Pratkanis (persuasion and
propaganda), etc. Am I reading you right? I can provide more if this is what you were thinking
about. . .”) (ellipses in original). As to Brandon, Mumford suggested (similar to Gerwehr’s thinking) that
they think about the academics who had been invited to their prior “ITP” (integration of theory and
practice) conferences: “I’d be pleased to get your thoughts on [task force nominations] maybe ref[le]cting
on past ITP participants or folks we had on wish lists who couldn’t come for some reason to one of the
earlier events . . . Bob Cialdini was one I thought of in that category. APA_0030104 (ellipsis in original).
949 APA_0023260.
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Operations Chief Psychologist Morgan Banks (and perhaps others)—and said he would be
interested in Newman’s perspective about how they “would fit into a proposed meeting with the
Army Surgeon General and/or other outreach activities.”950 Newman actively followed up on
this shortly. More about Newman and Banks’s communications are discussed in the next
subsection.
On January 6, Mumford, Behnke, and the Associate Executive Director of the Science
Directorate, Merry Bullock, met “to talk about balancing the Task Force nominees” (as Mumford
said in an email the next day). After or around the time of that meeting, Mumford emailed
Behnke and Bullock about the names for the task force “we have so far,” which were listed in
this order:951
x Michael Gelles
x Olivia Moorehead-Slaughter
x Larry James
x Michael Wessells
x Phil Erdberg
x Debra Dunivin
x Corann Okorududu
x Listed as “Possible place holders for Science”:
x John Cacioppo
x Bob Cialdini
After Mumford added Kelly to the email chain on January 7, Kelly responded that Dunivin’s
current position and access to classified information may “severely” limit what she could say in a
task force and recommended that she be included solely as a consultant rather than taking up an
“official spo[]t.”952
No comment was made on the email exchange about the Newman/Dunivin
conflict of interest point. Kelly also responded that Behnke had just suggested adding Melvin
Gravitz to the task force list as well as psychiatrists Jeff Janofsky or Robert Phillips, all of whom
had attended the July 20, 2004 meeting at APA.953
Separately on January 7, Kelly apparently reached out on this topic to David Ayres,
President of Tate, Inc., a consulting firm specializing in personnel recovery training to the
government (corporate documents for Mitchell, Jessen & Associates from this time listed Ayres
as Chief Financial Officer).954
Kelly and Ayres had apparently gotten to know each other
950 Id.
951 APA_0023266. In the same email, Mumford told Bullock that “we need a moral reasoning person” on
the task force. Mumford later explained to Sidley that his comment meant ensuring that someone with
unimpeachable credentials on morality issues was included. Mumford interview (May 15, 2015).
952 Id.
953 APA_0023268.
overview/; Walker, Hunter, These 7 Men Owned The Company Linked to CIA Torture, Business Insider
(Dec. 11, 2014), available at http://www.businessinsider.com/the-company-behind-cia-torture-2014-12.
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because their children attended the same school, and Ayres had sent Jessen’s resume to Kelly
and had suggested a meeting.955 Apparently in response to an email or phone call from Kelly,
Ayres sent Kelly an email with the subject of “We must talk!”956 Ayres said, “Yes, yes… we
focus on these interrogation issues on a daily basis,” and said he would call Kelly when he
returned to town at the end of January. It is unclear whether Ayres was aware of the task force at
this time.957
On January 14, 2005, Behnke emailed an interim update to Levant, stating that he and the
Science Directorate were compiling a list of task force members, and that the list “will be diverse
by professional background and interests, gender, and ethnicity.”958 That day, Behnke sent a
draft list of 12 task force names for Kelly and Mumford to review, with a note to discuss the
issue of Debra Dunivin.959 This draft list included the following names, six of whom ultimately
became task force members:
x Jean Maria Arrigo (ultimately becomes a task force member)
x Col. Paul T. Bartone
x Phil Erdberg
x Michael Gelles (ultimately becomes a task force member)
x Larry James (ultimately becomes a task force member)
x Joseph Matarazzo
x Arthur G. Miller
x Robert S. Nichols
x Olivia Moorehead-Slaughter (ultimately becomes a task force member)
x Corann Okorududu
x Scott Shumate (ultimately becomes a task force member)
x Michael Wessells (ultimately becomes a task force member)960
On January 18, Behnke emailed Levant that the staff had completed its compilation of
potential task force members and attached a list for Levant’s review, along with short
biographical sketches. The list had 17 names and an asterisk next to their top 10 choices.961 If
these ten people had formed the actual PENS task force, it would have been made up of five non-
955 Kelly interview (Apr. 24, 2015).
956 APA_0129250.
957 Ayres refused a request to be interviewed by Sidley. Kelly said she could not recall whether they had
a follow up discussion and did not believe that she had a conversation with him directly about the task
force. Our investigation found no further evidence in APA’s emails or Kelly’s files on this issue.
958 APA_0023208.
959 APA_0025278.
960 APA_0023209.
961 APA_002320; APA_0023209.
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DoD962 members (marked with a “C” below), four DoD members (marked with a “G” below),
and one (Phil Erdberg) who might have fallen in either camp:963
x
*Jean Maria Arrigo (C) (ultimately becomes a task force member)
x
*Col. Paul T. Bartone (G)
x
*John M. Darley (C)
x
CDR Anthony P. Doran
x
* Debra Dunivin (G)
x
*Phil Erdberg (G/C)
x
*Michael Gelles (ultimately becomes a task force member) (G)
x
Dennis Grill
x
Joseph Matarazzo
x
Arthur G. Miller
x
*Olivia Moorehead-Slaughter (C) (ultimately becomes a task force member)
x
Corann Okorududu
x
Robert Roland
x
Scott Shumate (ultimately becomes a task force member)
x
*Michael Wessells (C) (ultimately becomes a task force member)
x
*Col. Thomas Williams (G)
x
*Linda M. Woolf (C)
Behnke also said that it would be important to explain some of the task force’s conditions
up front (including that “task force members may need to take votes on particular matters” and
their names would be made available to APA members), since he speculated that active duty
military members might not be able to participate on the task force under these conditions.964
(This and other references to task force members being voting members shows that the
suggestions by Behnke and other APA officials after criticisms arose that the ultimate 6-4
DoD/non-DoD split of the PENS Task Force was irrelevant because it was never intended to
have votes taken is incorrect.) Behnke also suggested adding a representative from the American
Psychiatric Association, but Levant responded that he “would prefer to limit [the task force] to
psychology” since it had “the potential of airing dirty laundry.”965
962 The phrase “non-DoD members” is used throughout this section to refer to task force members who
had no affiliation with the government or military. By contrast, civilian and military DoD-affiliated
members of the task force are referred to as “DoD members.”
963 Erdberg’s biography notes that he had been an active-duty military member and heavily consulted with
the FBI, but Behnke told Sidley that he would consider Erdberg a civilian member since he was no longer
active duty military. Behnke interview (May 22, 2015).
964 APA_0023208.
965 APA_0034366.
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C.
APA-Defense Department interactions, and Board Approval of Task Force:
January 19 - February 17, 2005
1.
APA attempt to influence DoD policy, and link to task force member
selection process
From early January until the Board meeting approving the task force on February 17, key
APA staffers and Board members discussed their desire to be involved in the development of
Defense Department policy regarding the involvement of mental health professionals in
interrogations, for the apparent purpose of trying to ensure that psychologists were as strongly
represented within that policy as possible. This would have been important to try to maximize
jobs, contracts, and influence for psychologists within DoD, and would have been seen as
consistent with the core goals of growing psychology and (to quote Levant’s presidential motto)
“making psychology a household word.” A bad result regarding DoD policy development could
have meant that the role of psychologists in these DoD operations would be minimized, perhaps
because of greater influence from psychiatry, an issue always present for APA leaders focused
on growing psychology.966 Koocher also explained to Sidley that APA wanted to please DoD in
general, like other government agencies, from which it received funding and support.967 It was
clear that the Army Surgeon General’s Office was developing relevant policy, but it also
appeared that other parts of DoD might be developing similar policies, and it was unclear at this
time whether DoD effort was unified, coordinated, or disjointed.
There are also clear indications that, in the mind of some key APA people, including
Koocher, Levant, and Behnke (and probably Kelly and Mumford), this attempt by APA to be
involved in and positively influence DoD policy was linked to the composition of the soon-to-be-
formed task force on ethics and national security. Specifically, emails suggest that selection of
DoD officials for the task force may be seen as a show of support for DoD, which may help APA
achieve a more positive result from DoD policy in this regard. As it turns out, this is exactly
what happened. DoD officials perceived by APA as important were not just selected for the task
force but were selected as a majority of the task force, and DoD’s policies on these issues
(developed and issued in 2005 and 2006 by the Army Medical Command (“MEDCOM”) and the
Assistant Secretary of Defense for Health Affairs) explicitly included central roles for
psychologists (and not for psychiatrists) in interrogation support,968 a result pointedly noted with
delight by various APA officials when these policies became final in 2006.969
966 Several interviewees made this point. For example, Levant told Sidley that a goal of his trip to
Guantanamo Bay in October 2005, discussed more below, was to give a good impression of psychology
to DoD officials, which aided his long-term goal of expanding the scope of psychology. See Levant
interview (May 13, 2015), Newman, too, told Sidley about his desire to expand psychology in new areas.
He added that psychiatry often impeded on APA’s efforts to expand its role in DoD. Newman cited
APA-supported Psychopharmacology Demonstration Project, a temporary DoD training program in the
early to mid-1990s where military psychologists could attain prescription privileges, as an example. See
Newman interview (Apr. 29, 2015).
967 Koocher interview (June 12, 2015).
968 The Health Affairs and MEDCOM policies that discussed the role of psychologists on BSCT teams
were released in June and October of 2006, respectively. See Medical Program Support for Detainee
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This DoD policy topic arose on January 4, immediately following the publication of
Bloche and Marks’s New England Journal of Medicine article. In an email from Behnke to
Koocher and Levant (copying Honaker, Farberman, Gilfoyle, and Mumford), he explained that
the article referred to “a confidential effort” by the Army Surgeon General’s Office “to develop
rules for health care professionals who work with detainees.” Behnke said that APA could
“explore the possibility of collaborating with the Army Surgeon General in some fashion. We
could explain that APA is actively examining the ethical aspects of mental health professionals’
involvement in these activities and that a collaboration between health and mental health
professionals could be very productive.”970
Koocher’s telling response linked APA’s attempt to influence DoD’s policy development
with who would be included on the task force: “This is a great idea. I’d suggest a back channel
contact via Morgan Sammons and/or Larry James asking how best to make the offer and (for
example) whether Ron [Levant] might nominate them . . . or other members with security
clearance, e.g. Robert Fein, to represent psychological ethics issues.”971
After Levant said he agreed and asked, “How best to proceed?”, Behnke confirmed the
strategy and discussed implementation: “Let’s follow Gerry’s suggestion of a back channel
contact; I’ll confer with Geoff Mumford in Science to make it happen.”972
Mumford then responded solely to Behnke, although he copied his boss (Breckler) and
colleague (Kelly) in the Science Directorate, stating that Kelly was exploring the matter, that
they would explore the contacts Koocher recommended “but have others in the mix too (CIFA,
Pentagon, etc.), hope that’s ok? OSTP has also expressed an interest in being helpful, we’ll have
Operations, 2006 DoD Instruction, available at
Consultation Policy, OTSG/MEDCOM Policy Memo (Oct. 20, 2006), available at
Health Affairs document included a two-page overview of the standards and procedures for behavorial
science consultants. The MEDCOM policy focused entirely on BSCTs and became the basis for
subsequent BSCT policy memoranda.
969 After the Health Affairs June 2006 statement was released, Levant responded to the Executive
Management Group’s listserv by asking “[a]re psychiatrists the most ethical or the least-well trained?”
Newman responded that there was a “gap” between the training psychiatrists have and what psychologists
already have. APA_0192920.
970 APA_0023341.
971 Id. Sammons told Sidley that, despite him being the Specialty Leader for Navy Clinical Psychology,
he was not involved with policy development for BSCT policy, which fell under the purview of the
Army. Navy psychologists were not part of BSCT teams. He did not recall that anyone at APA contacted
him about these policy issues at this time. Sammons interview (June 23, 2015).
972 Id.
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to think about how…perhaps on the IOM end.”973 Mumford then added in an email just to
Behnke: “[B]tw, I’m not copying the big brass because they seem a little impulsive in their use
of email and we’ll never get anything done.” Behnke responded, “good idea. very good idea.”974
Later in January, Kelly forwarded a letter on behalf of Behnke and APA to Scott Shumate
as the Director of Behavioral Science at CIFA.975 Noting his understanding that DoD Office of
General Counsel “may be reviewing or drafting a policy on the involvement of mental health
professionals in interrogation settings,” Behnke’s letter said that APA was “particularly
interested in ethical issues” on this topic and offered “the expertise of our disciplinary
association as a resource to DoD throughout this process.”976
2.
Involvement of Russ Newman and Morgan Banks
Meanwhile, Russ Newman continued to be involved in the task force development
process through his connection with one of the key psychologists in DoD, Morgan Banks, who
was the Army’s Command Psychologist and Chief of the Psychological Applications Directorate
973 Id. (ellipsis in original). Mumford told Sidley that the CIFA contact he referenced may have been Kirk
Kennedy, and that the Pentagon contact may have been Janice Laurence, then-Director of Research and
Analysist at DoD (Email from Mumford to Sidley, June 18, 2015). The OSTP reference was to Susan
Brandon at the White House’s Office of Science and Technology Policy. IOM is the Institute of
Medcine, the health arm of the National Academy of Sciences. See Institute of Medicine (www.iom.edu).
Kelly was building a relationship between APA and CIFA at this time through her developing
relationship with Shumate and (to a lesser extent) Kennedy, who she had met while he was working at the
CIA with Hubbard. Among other things, APA created a fellowship position at CIFA, and Shumate and
Kennedy placed Kelly on an advisory committee to advise CIFA on overall strategy issues. See
APA_0024788; APA’s first Department of Defense summer fellows examine counterintelligence ,
available at http://www.apa.org/gradpsych/2005/09/defense.aspx.; APA_0129612; APA_0129614 &
APA_0129615 (CIFA Strategic Program Statement, Mission and Function Statements).
974 APA_0023341.
975 APA_00129743; APA_0023200. Before sending the letter, Behnke emailed Honaker on January 25
(copying Kelly and Mumford) asking for permission to sign the letter and said that Kelly and Mumford
had drafted it. Honaker said “[o]kay.” APA_0023187. Later that day, in a separate email exchange
between Mumford and Brandon, Brandon said she hoped to visit CIFA the next day “and see what they
are up to.” In response, Mumford forwarded her Behnke’s letter to Shumate and said “I’ll fill you in on
background over the phone.” APA_0029349. Mumford could not recall anything significant that he
passed on to Brandon other than what was set out in the letter. Mumford interview (May 18, 2015).
976 APA_0023200. The day before on January 24, in response to Norman Anderson’s regular written
report to the Council of Representatives regarding the activities of APA staff, which included a short
summary of the October 2004 meeting that Mumford and Kelly and had with Shumate and Kennedy at
CIFA “to discuss possible areas of collaboration,” Council member Edmund Nightingale emailed
Anderson to ask “what relationship there is, if any, between” this CIFA interaction and the issue recently
raised by a Council member about “psychologists being involved in guiding interrogations at Abu
[Ghraib].” Anderson told Nightingale he would check with Mumford and copied him on the response.
Mumford wrote a draft response and forwarded it to Behnke for his review. Behnke suggested
reformulating the response to make it more general and to say that “ethical considerations will of course
be front and center in any exploration of discussion of these issues, to the extent that ethics are relevant to
the subject matter of the collaboration.” APA_0023205.
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in the Special Operations Command, and who helped run the Army’s SERE school located in Ft.
Bragg, NC. Dunivin and Banks had come to know each other because Dunivin had attended
SERE training at Ft. Bragg. She had been tasked to handle the repatriation of a female U.S.
soldier who had been captured in Iraq, which involved discussions and training with SERE and
other psychologists at Ft. Bragg, and had dealt closely with Banks since she had been deployed
to Guantanamo Bay as head of the BSCT team in November 2004. As shown by Dunivin’s
email exchanges during this time and confirmed by her interview with us, communication from
Guantanamo Bay was difficult, which might explain why the communication from APA to
Banks ran directly through Newman during this time, rather than through Dunivin.
On the morning of Monday, January 10, Newman had a conversation with Banks, who
Newman described in an email to Mumford, Breckler, Behnke, Honaker, and Kelly as the
“Senior Army Psychologist in Special Operations.”977 Newman told the group that he wanted to
discuss his call with them. (All the witnesses said they could not remember the details of the call
or the conversation about it.)
The next day, Mumford and Kelly met with Newman to discuss his conversation with
Banks, who Mumford described as “his [Newman’s] guy in Special Ops . . . who heads the
psychology component of the . . . SERE training school.” After explaining that Newman thought
it would be helpful to include Banks in discussions about APA being helpful to the Army
Surgeon General’s Office regarding their policy development effort, Mumford explained
Newman’s summary of Banks’s suggestion regarding security clearances for task force
members:
Russ also relayed Morgan's suggestion that we include some folks with security
clearances on the Task Force so that they'll be more likely to be able to sit down with that
operational community and directly convey to them what the Task Force is up to. Some names
he mentioned were Joe Matarazzo, Marty Seligman, Scott Schumate [sic]. We told him about
Mel Gravitz. Maybe we can chat tomorrow morning.978
The “directly convey” language most likely suggests that Banks may have wanted task
force members who could confer with military psychologists in the field during the task force to
ensure that the task force was not doing something that was inconsistent with their needs or
preferences.979
977 APA_0023260.
978 APA_0023249.
979 In his interview with Sidley, Newman said that Banks’s comments were educated by his dissatisfaction
with APA at the time. Banks expressed concerns, Newman said, from people in the field who did not feel
APA supported them and who could not speak about these sensitive issues to APA. Newman added that
he was unaware whether Banks believed it was important for DoD to be aware of the task force’s actions.
Newman interview (April 29, 2015). Behnke speculated in an interview with Sidley that Banks brought
up the clearance point to underscore the need to have people in the room who had first-hand experiences
and could speak frankly about them. He remarked that Banks and others did not view APA favorably and
may have worried that the organization might undercut operational psychologists during wartime. Behnke
interview (May 22, 2015). Banks shared with Sidley a letter he wrote in 2009—when he rejoined APA—
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Meanwhile, by January 13, Newman had communicated that he wanted to see the draft
task force proposal changed to use a different word other than “coercive” a point that Banks
would make in later emails, strongly suggesting that Newman was proposing a different word in
light of his conversation with Banks. Specifically, on January 13 Behnke emailed the key staff
group (Honaker, Newman, Farberman, Gilfoyle, Breckler, Mumford and Kelly) attaching the
draft task force proposal and asking for any suggested changes. Behnke noted that Mumford had
mentioned that Newman “had an alternative suggestion for the word ‘coercive’ and asked
Newman for a comment on this.980 In response, Newman told Behnke that he may wish to
mention “effectiveness” in the proposal as well.981 Newman explained to Sidley that this
addition reflected the “collateral science practice issue” about whether a psychological
intervention was measured by efficacy or effectiveness.982 The difference between the version
brought to the December 2004 Board meeting and the official version submitted at the February
2005 Board meeting was that “coercive techniques” was replaced with the innocuous term
“various investigative techniques” in a manner that (as Gilfoyle’s prior email foreshadowed)
avoided the difficult question regarding what ethical position to take if “coercive techniques
were found to be effective.”983 Newman told Sidley that he did not recall the conversations then
about removing the word “coercive,” but he commented that neither Banks nor his wife Dunivin
would have liked it since it suggested from the outset that interrogations per se were
problematic.984
On February 1, Kelly met with Col. Bruce Crow, then-chief psychology consultant in the
Army Surgeon General’s office and sent a summary of her meeting to Newman, Behnke,
Mumford, and Breckler, along with a follow up email to Crow.985 At the meeting with Kelly,
Crow confirmed that “an internal group within the Army Surgeon General’s office is currently
reviewing the issue of mental health professional and interrogations and putting together some
sort of report.” Crow told Kelly that he did not know who was in this internal group and did not
know its time frame. Crow reported that “the team has talked extensively with ‘a psychologist”
involved with the interrogation groups as part of its information-gathering process” and that “a
that stated Banks originally resigned from APA in 1996 due to APA’s then-ban on military advertising in
APA publications and at APA events (on file with Sidley).
980 APA_0049918.
981 Id.
982 Newman interview (June 15, 2015).
983 Compare December 2004 draft proposal, APA_0058508 (“What does current research tell us about the
efficacy of coercive techniques? How would our ethics be affected, if at all, were coercive techniques
found to be effective?”) with February 2005 final proposal, APA_0025740 (“What does current research
tell us about the efficacy and effectiveness of various investigative techniques? Would the efficacy and
effectiveness of various investigative techniques, if demonstrated, affect our ethics?). The issue of
effectiveness with abusive techniques arose again during the Board’s approval of the PENS report on July
1, 2005, as discussed later in this section.
984 Newman interview (June 15, 2015).
985 APA_0129089.
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variety of groups across DoD are looking at the issue but isn’t sure if or how any are
coordinating/collaborating.” Crow told Kelly that “input from disciplinary associations (MD,
psychology, social work) would be very important to their process.” He said he was interested
that APA was forming a task force on the issue and offered to serve as an observer. They also
discussed setting up a separate meeting with Morgan Banks.986
Newman responded to Kelly’s email that he was going to meet Banks the week of
February 7.987 The two likely met for dinner on February 9.988
Notably, Banks received a copy of the draft task force proposal (formatted the same way
the Board ultimately received it, as an agenda item) before the Board did during its February 16
- 17 meetings and emailed written comments on the draft to someone at APA. Although there is
uncertainty about how Banks received the document and who he sent it to, our belief based on all
the evidence is that Newman provided Banks with the draft and Banks sent back to Newman an
annotated copy that included his comments.989 Newman told Sidley that he and Banks spoke
over the telephone and met for dinner during this time period, so it was a reasonable assumption
986 Id; see also APA_0129866 (email between Crow and Kelly). As a follow up to the meeting, Kelly
emailed Crow the “draft version” of the proposed task force that APA Board would be considering at its
February 16-17 meeting and asked him to “keep it close” and said that “w[e] would love to meet with
you to talk about these issues and ways to coordinate/collaborate.” Crow response pointed out that APA
task force’s effort should “serve national security”. Id. (“We welcome APA assistance in establishing
guidelines that serve national security while preserving professional integrity.”) In addition, following up
on Kelly’s comment in her email that she and Behnke were meeting “informally” with Senate Armed
Services Committee (“SASC”) staffers the next week to brief them on the topic, Crow asked Kelly to
deliver a positive message about DoD to the SASC: “The message I would like the SASC to hear is DoD
psychologists are deeply committed to the highest standards of clinical practice and professional ethics.”
Id. According to a draft note from Behnke about the meeting, Behnke and Kelly “emphasized that APA
would very much want to see psychology included in” DoD’s ongoing discussions about the proper role
in interrogations for mental health professionals. APA_0129061. Kelly exchanged messages with Crow
about these issues in May and August 2005 as well. APA_0128753. Crow, along with his counterpoints
from the Navy (Morgan Sammons, in particular), Air Force, and the Public Health Service met
periodically from 2005 at APA to discuss issues related to, according to Sammons, recruitment,
deployment, and networking across the various DoD branches. Crow interview (June 22, 2015);
Sammons interview (June 23, 2005).
987 APA_0129089.
988 APA_0129054. Newman made reference to meeting Banks the night before on February 9.
989 See Banks comments on agenda item (provided to Sidley on March 1, 2015). We received the draft
with Banks’s comments from Banks as a digital file, and the metadata dates on the document indicate that
it was last saved on February 13, three days before the beginning of the Board meeting. Further evidence
that the document predated the February 2005 Board meeting is found in copies of the Board agenda item
given to PENS Task Force members in April 2005. The copy from April omits two more-sensitive items
found in Banks’s copy of the agenda—(1) the first page, where Banks’s copy stated that the money
allocated to for the task force would come from the 2005 discretionary fund, and (2) on the second page,
where Banks’s copy noted that an exhibit with potential task force member names would be included with
the agenda item.
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that he may have served as a “conduit” for collecting Banks’s comments and sending them to
someone like Behnke.990
Banks’s comments on the task force proposal made points that are consistent with the
ultimate direction of the PENS task force. First, he strongly implied that the “do no harm”
principle should not be applied broadly by the task force, since (1) it “may impact on a large
number of psychologists, for example, those who work for police departments, or for the prison
system,” and (2) “any psychologist who assists in making soldiers more effective, increases the
likelihood of causing someone harm.” Second, he implied that it would be very difficult to
discuss or draw any conclusion about the ethics of specific interrogation techniques since “[t]he
tactics, techniques, and procedures (an Army term) may be classified.” Third, he said that the
task force “would be a great opportunity for APA to support classified research” on the topic of
the “efficacy and effectiveness of various investigative techniques” (a phraseology paralleled in
the PENS report in recommending future research). Fourth, he revealed that he had provided
APA person who was receiving the comments (apparently Newman) “the chapter [w]e wrote”,
which covered issues of informed consent in interrogations.991
Banks’s chapter comment is clearly a reference to the draft document entitled “Providing
Psychological Support for Interrogations” (“PPSI”) (and which was formatted at the time as two
“chapters”) that Banks and Dunivin had drafted and which Banks provided to Behnke in advance
of the PENS task force meeting. The PPSI was distributed at the task force meeting and
eventually became (almost verbatim) the interrogation policy of the Army Medical Command in
2006. The key point in this draft document was that a psychologist’s role in interrogations must
be analyzed using a four-word formula—“safe, legal, ethical and effective” —with the analysis
under each word discussed in some fashion. After Banks provided this formula to Behnke, and
Behnke wrote language for task force chair Olivia Moorehead-Slaughter to recommend the
formula to the task force (discussed more below), it became the key formula for the PENS task
force and report.
Thus, even before the Board had voted to actually form the PENS Task Force, Banks was
communicating to APA (apparently through Newman) some of the key points regarding how he
and DoD would want to see the task force address these issues. Our investigation found no other
990 Newman interview (June 15, 2015). The conclusion that Banks was corresponding with Newman
about the document is the most logical one, since (1) Newman met with Banks the week of February 7,
(2) Banks’s comments on the document are clearly to someone at APA, and (3) at that time it appears that
Newman was the person at APA that Banks was closest with. In addition, since Newman’s APA emails
are no longer within APA’s possession (as Newman left APA in 2007), this provides an explanation as to
why we did not find the document within APA’s email files (although it also may have been deleted from
another current employee’s emails). There is also no record of Behnke, Mumford, or Kelly sending the
document to Banks. And Dunivin indicated to Sidley that she did not recall ever seeing a task force
proposal in February 2005. Dunivin interview, May 27, 2005. Banks said he could not remember who he
received the document from or who he sent it to, and Newman said he could not specifically the
document. Banks, now retired, said he no longer had a record of the original email. Email from Banksto
Sidley (May 26, 2015). A FOIA request from Sidley to DoD for related emails or documents is pending;
no response has been received by DoD as of the writing of this report.
991 Banks comments on agenda item (on file with Sidley).
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instance of someone outside APA—either outside DoD, outside the government, from within the
pro-human-rights community, or otherwise—being asked to weigh in on the task force proposal
in advance of the Board meeting.
3.
Board approval of task force
The APA Board met on February 16 and 17 and voted to approve the creation of a “Task
Force to Explore the Ethical Aspects of Psychologists’ Involvement and the Use of Psychology
in National Security-Related Investigations” and to allocate $12,500 for it.992 A list of suggested
task force member names were distributed during the Board’s Executive Session. Behnke
suggested that the potential names be distributed in a confidential “Executive Session” “[g]iven
the political aspect of choosing” task force members and the “possibility of provoking strong
feelings from people who feel slighted or left out.”993
The names included in the Executive Session handout were the same as those on the
January 18 list, now without any asterisked names, plus one additional name—David Shapiro, a
Professor of Psychology at New York University.994 Shapiro was added to the list after he wrote
a letter regarding his disappointment at APA’s responses to the abuses at Guantanamo Bay ,
which a Council representative, Trish Crawford, forwarded to the Council listserv on the evening
of January 18 as discussed above.995 Crawford later suggested to Levant that Shapiro would
make a good addition to his task force.996
Despite this list of names and APA staff’s recommendations regarding its top 10 names,
the Board did not select the task force members at this meeting but instead decided to issue a
broader call for nominations. The Board minutes note that Levant would send a call for
nominations to Council. On February 17, communications were sent out to the Council of
Representatives, divisions, boards and committees announcing the formation of the task force
and that nominations would be accepted. Neither Levant, Behnke, nor other Board members
during this time could recall the specific discussions about calling for nominations after the
meeting. Divisions, APA committees, state psychological associations, and individuals all
submitted nominees in the weeks ahead.
We can speculate on three possible explanations for the shift to a full call for nominations
after the Board meeting. One possibility is that Koocher or Levant may have reviewed the list
anew and realized that more names were needed during the Executive Session. Another
possibility is that other Board members during the meeting raised concerns about having a
broader list of nominations before finalizing the task force. A third, perhaps more underhanded,
possibility is that Newman’s (and later Dunivin’s) involvement with the Board meeting led to an
open call of names. As discussed, Newman likely received Banks’s thoughts on the task force
992 Approved Minutes of the Board (Feb. 16, 2005 & Feb. 17, 2005) (on file with Sidley).
993 APA_0034126.
994 Executive Session Handout (Feb. 16, 2005 & Feb. 17, 2005) (on file with Sidley).
995 APA_0034381.
996 APA_0844673.
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board item ahead of the Board meeting. Further, Newman told Sidley that he was concerned the
task force would be staffed with people who did not have the appropriate knowledge of the
issues to accurately comment on them.997 Newman was also in contact with APA staff ahead of
the Board meeting and, as a member of the Executive Management Group, participated in the
Board meeting discussions about the task force issue. If Newman saw the list of initial task force
individuals and was concerned about their competencies in this area, then, it is possible he would
have informed Board members—either during their meetings or in private—that a wider call for
nominations was needed. He could have then informed Dunivin of his concerns who, one week
later, conveyed her desire to have Banks on the task force (discussed more below), which
propelled the task force to take a different complexion than what Behnke, Mumford, and Kelly
had originally planned.
The evening of February 17, Behnke sent Levant an email confirming the details of what
had been discussed at the Board meeting regarding next steps:
The Board liasons [sic] are Gerry Koocher and Barry Anton. The Task Force will
be staffed by the Ethics Office and the Science Directorate. Nominations are
being sent to me, and the Ethics Office (Rhea Jacobson) is updating the list daily.
The final day for nominations is March 1. We will have a conference call
(tentatively scheduled for Tuesday, March 9), at which time you will choose the
individuals for the Task Force. Before then we will have provided you a complete
list of individual's names and biographical sketches for your review. We will also
have drafted a letter that will be sent to the individuals whom you choose, that
will provide possible meeting dates and other relevant information (e.g., the
person will need to be able to attend and able to vote in order to be on the task
force). My guess is that we will have over 200 names for your consideration.998
Levant responded solely to Behnke’s prediction of how many nominations would come
in: “Wow! 200 names … that is amazing.”999
D.
February 17 - March 18, 2005: Influence of Debra Dunivin; task force
finalized
1.
Some early communications about task force nominees
Once the call for nominations was sent out on February 17, a variety of nominations and
communications came in to APA in various ways. Notable examples include an exchange with
Robert Kinscherff—who was a close friend of Behnke’s, knew Robert Fein from their work on
forensic psychology issues in Boston, and was chair of APA’s Committee on Legal Issues
(“COLI”) and former APA Ethics Committee chair—in which he commented swiftly and
positively on three eventual government members of the task force.
997 Newman interview (Apr. 29, 2015).
998 APA_0037359.
999 Id. (ellipsis in original).
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Kinscherff was responding to a post on the COLI listserv by APA the afternoon of
February 17. There, a psychologist who worked at the U.S. Secret Service’s National Threat
Assessment Center—and therefore had worked closely with Robert Fein—posted on the listserv
that Scott Shumate “would be very well-suited for this.” Fein worked with Shumate at CIFA in
DoD. The evening of February 17, Kinscherff posted on the listserv in response, stating, “I
would agree heartily with the nominations of Scott Shumate, Robert Fein, and Charles Ewing,”
and added that Michael Gelles would be a good nominee. Later that evening. Behnke emailed
Kinscherff a short thank you note using the lingo they often used with each other in emails.1000
Although the behind-the-scenes communications are not made explicit in this email exchange,
and Behnke, Fein, and Kinscherff did not recall anything about this exchange from 10 years ago,
it strongly suggests that Behnke, Kinscherff, and Fein had coordinated this exchange in some
way to ensure that Shumate, Fein, and Gelles would be nominated with prominent
recommenders, especially in light of the way the detailed and sophisticated behind-the-scenes
manner we observed Behnke typically operating. Behnke also emailed Fein about two weeks
later, noting that “[t]hese appointments are very political.”1001
Also on February 17, former APA President Ronald Fox (“Fox”) emailed Levant to offer
his assistance: “If it helps, I am willing to be an informal advisor behind the scenes as long as I
do not leave my fingerprints on it, so to speak.”1002 Levant forwarded the email to Behnke, who
responded to Levant that “[a]t your suggestion, I did speak with Ron [Fox] about the task [force]
several weeks ago. I will certainly keep him ‘in the loop,’ although without requiring his
fingerprints.” Levant responded, “Smile… Thanks.”1003 Behnke and Fox did not remember this
communication, and neither thought that Fox had had any involvement in the task force, or that
the two of them had any additional communications following this apparent conversation
referenced in the email.1004
Levant told Sidley in an interview that Fox’s comment may have
been the result of his advisory relationship with the CIA at the time, as described earlier in this
report.1005
On the one hand, our investigation found no evidence that Fox was having any
dialogue with Behnke or anyone else about the task force, or that he was being used as a conduit
1000 APA_0046817 (“You are indeed the dudissimus.”). For more on Michelle Keeney, the psychologist
who initially posted the message that Fein responded to, see Secrets behind the service, Monitor on
1001 APA_0035172. Fein emailed Behnke on March 1 stating that Shumate had encouraged Fein to serve
on the task force; Fein therefore wanted Behnke’s advice as to whether to put his name in and how to do
so. Behnke wrote that “[t]hese appointments are very political” and there were many nominees, but
“there are no more than a handful of people in the country with your experience, and I will be very happy
to speak with Ron Levant personally on your behalf.” Fein asked in response if he should send a note to
Ron whom he had known since they were in graduate school together, or to Koocher. In response,
Behnke asked if he could speak with Fein by phone about it. Id. Neither Behnke nor Fein recalled the
conversation. Fein’s nomination form states that he was nominated by himself and by Kinscherff and was
recommended by COLI “with the following comment: ‘He has an ongoing contract with a defense agency
and provides consultation in this area.’” HC00085941.
1002 APA_0037360.
1003 Id.
(ellipsis in original)
1004 Fox interview (June 11, 2015); Behnke interview (May 29, 2015).
1005 Levant interview (May 13, 2015).
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by the CIA or others to influence the task force. On the other hand, given the secretive nature of
the CIA and its activities, it is not a possibility that can be ruled out.
2.
Influence of Debra Dunivin
The evidence shows that the most meaningful and influential communication regarding
the composition of the task force came from Debra Dunivin, then chief Army BSCT
psychologist at Guantanamo Bay, in several communications starting the day after the February
Board meeting and running to the date of the selection committee meeting on March 18.
Dunivin was a member of APA’s Council of Representatives at the time, and the
Council’s February meeting was February 18 - 20, immediately after the two-day Board
meeting. Dunivin told Sidley that she returned to Washington from Guantanamo Bay to attend
the Council meeting. As recounted in a subsequent email exchange and in Dunivin’s interview
with Sidley, Dunivin spoke with Levant and Behnke during the Council meeting about the
newly-formed task force and communicated strongly to them that it was essential that they
include certain military and DoD officials, so that the task force could be properly informed by
the psychologists who correctly understood the issues and challenges as a result of their work in
the field for the government. Dunivin said she told Levant in particular that it was essential for
APA to have a proper outcome from the task force, because ethical guidance for psychologists
who supported interrogations at Guantanamo Bay and elsewhere was badly needed, although it
needed to be the right kind of guidance.1006
Dunivin told Sidley that her view was that APA should indicate that it was ethical for
psychologists to participate in interrogation support within certain guidelines. But she
commentated that APA should not attempt to define with any specificity what the military should
or should not do regarding interrogation techniques, since APA did not have the expertise to
understand whether certain techniques would elicit accurate information. Dunivin said she was
against harsh and abusive interrogation techniques, and that the Army had done a good job of
correcting prior mistakes. Hence by 2005, she and other psychologists were doing a good job,
Dunivin claimed, of preventing interrogators from engaging in such techniques. As to what
ethical guidelines or boundaries should be placed on psychologists from APA, her view was that
the “safe, legal, ethical and effective” formula she had created with Banks was a strong and
sufficient approach. Dunivin said that her commander and people in the intelligence and
detention community told her that psychological expertise aided their efforts. It was important,
therefore, to have professional associations support these psychologists’ roles to alleviate the
ability of a psychologist losing their license for being in these settings at all, she said.1007
Dunivin said that one of the key points she communicated to Levant in this regard was
that it was essential to include Morgan Banks on the task force (among others), so that the right
kind of knowledge and expertise could be included on the task force. She recalled that she was
likely quite insistent with Levant and may have “gotten in [Levant’s] face” about the issue.1008
1006 Dunivin interview (May 20, 2015).
1007 Id.
1008 Dunivin interview (May 27, 2005).
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Dunivin sent Behnke and Levant an enthusiastic follow up email on February 24, copying
Newman and Banks. She said she wanted to “underscore how strongly I feel that you must
include Colonel Morgan Banks on this Task Force. He’s the person with the absolute most
experience in this area.” Dunivin also said she agreed with the comment Levant had made to her
that “this is likely the most important thing that APA will do this year.” Dunivin offered to assist
in any way she could.1009
On March 2, Dunivin (who was back at Guantanamo Bay) emailed Behnke saying she
wanted to talk with him and had tried unsuccessfully to reach him by calling APA.1010 As they
emailed about how to connect by phone, Dunivin said that she “wanted to talk a bit about the
composition of the Task Force before it’s finalized.” Behnke responded on March 15 that “[w]e
are getting down to the wire” and suggested a call that evening or the next day. Dunivin
responded right away and asked if Behnke was available then, and they appear to have connected
by phone that morning and to have discussed her sending in a written suggestion about who
should be on the task force. (Both said they do not remember the call.) The afternoon of March
17 she asked if she could send him “my note” the next morning and said it was “almost written.”
Knowing that the selection committee meeting was the next day, Behnke responded that it would
be “ideal” if Dunivin could submit that evening, or otherwise as early as possible the next
morning. Later that afternoon, Dunivin attached a letter to an email to Behnke, and wrote in her
email, “[h]ope this accomplishes its purpose….REALLY appreciate your help with this.”1011
The one-full-page, single-spaced letter from Dunivin listed all six of the government
officials who were initially selected by the selection committee.1012 Her letter was (based on the
evidence) the only document with nominee names distributed at the selection committee meeting
1009 APA_0046640. Behnke forwarded Dunivin’s email to Kelly, who responded that Banks was
“supposed to be great” and that Newman knew him. Id. Behnke responded, “Okay, good - we’ll
definitely want to have our ‘top ten’ going into the conference call.” Id. This was apparently a reference
to the originally-scheduled March 9 conference call to discuss nominees. We found no evidence that such
a call occurred, and believe that instead, the only discussion with Levant, Koocher and Anton about task
force nominees occurred on March 18 in person. On March 11, Behnke emailed Anton and Koocher,
copying Levant, stating that “[w]e have just completed compiling the list of nominees for the Task Force,
and have 110 names.” APA_0035852. Behnke said Levant wanted to meet the next weekend when they
would be together for APA “Consolidated” meetings of boards and committees, and this is what occurred
(on Friday, March 18).
1010 APA_0048446. Also around this time, on March 1, Col. Larry James (“James”) emailed Levant about
his interest and concerns about serving on the task force. In particular, James noted a “fear of pre-
conceived biases of some who may be anti-military.” Levant forwarded the message to Behnke, who
stated he would contact James about his concerns. Behnke wrote Levant, “We will strive to be sensitive
to the concerns of our colleagues in the military, and when assembling the task force a top priority will be
to ensure that we have individuals who are informed about the issues, and bring an open mind to the
complexity and challenge of thinking through the ethical aspects of this work. We are aware of the strong
feeling that media accounts have elicited, but as a scientific profession our first obligation is to begin with
the data.” APA_0036276.
1011 APA_0048446 (ellipsis and capitalization in original).
1012 One of the six, Thomas Williams, was never actually contacted by the selection committee but had his
spot taken by a different military psychologist, Bryce Lefever, as shown by Behnke’s handwritten notes.
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other than the full packet of all the nominees, which included information they or their
recommenders had submitted and a nominee’s APA membership information if applicable.
(Behnke’s hard-copy file included six copies of Dunivin’s letter, one of which had a small
amount of notes from Behnke on it, and Behnke and Koocher recalled the document being
passed out at the meeting.) The document, and Dunivin’s communications with Behnke, Levant,
and Koocher (see below) are, thus, likely the most influential communications on the task force
at its selection of task force members that the selection committee received. After an
introductory sentence, Dunivin’s letter to Behnke began:
We are agreed that composition of the Task Force is critical to accomplishing its
mission. I am concerned that in our efforts to be broad-based within psychology,
we will miss some critical areas of expertise in the actual field that is the focus of
the TF
I am suggesting that the following people MUST be included in order
to ensure that we: 1.) cover the various categories of expertise within the field of
psychology related to national security (i.e., interrogation support, profiling,
counterintelligence, policy development) and 2.) include some folks who provide
a bridging or cross-over function between the various components - those known
and respected within APA governance, with experience working in these unique
areas of professional practice, familiar with the ethics issues inherent in this
work.1013
She then listed nine names (including herself) along with descriptions of why they were
important and how important they were. The names were:
x Morgan Banks (“the [U.S. Army Special Operations] Command psychologist
with policy oversight for behavioral science consultation team support for all
Special Operations Command in support of national security issues. Decades
of experience in this area. Absolutely essential to the work of the TF.”)[ task
force member]
x Thomas Williams (“Essential”) [initially listed as the tenth member of the task
force in Behnke’s notes from the March 18 selection committee, but not
ultimately chosen and replaced by Bryce Lefever]
x Scott Shumate (“Essential”) [task force member]
x Michael Gelles (“Essential”) [task force member]
x Kathleen Civiello (“Need the NSA perspective.”)
x Richard Ault (“Need FBI perspective.”)
x Joseph Matarazzo (“tremendous bridging function. Others who could
function in this role include Mel Gravitz and Charlie Speilberger.”)
x Larry James and herself [James was a task force member]
Separately, Dunivin had been communicating with Koocher about Banks, and this
communication revealed an eventual concern about the fact that Banks was not an APA member.
In an email to Koocher that apparently was sent around the time of the February 18 -20 Council
meeting, Dunivin wrote, “I know folks are looking to add military members. The person who
1013 APA_0035179; APA_035180.
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knows most about this topic is COL Morgan Banks
Those Special Ops folks have been
involved in this work for twenty years
This is something most folks don't appreciate. Can
you ensure that Morgan Banks is one of the task force members?”1014
In a follow up email to Dunivin on March 15, Koocher noted that Banks was not an APA
member, and asked if he was prepared to join APA.1015 Dunivin responded later that day that
Banks was probably not prepared to join APA, but pushed Koocher to support her and military
psychologists by including him on the task force:
I think this matter goes to the very heart of a purpose for establishing the TF - to
answer the question if APA is providing sufficient support to psychologists on the
front line of this area of practice. The answer has to be ‘no.’ I, for one, want that
to change. Inclusion of such folks begins here. With the TF. And moves on
from there. Can you support me on this?1016
Koocher responded later that day: “It is exceptionally hard to argue that a person not
accountable to APA ethics code should be on a task force discussing ethics in psychology.
Sadly, that issue goes to the very [heart] of the matter.”1017
On the morning of March 18, the day of the selection committee meeting, Dunivin
reached out to Behnke for his help on the issue: “Heads up on another concern that looms on the
horizon. That is the issue of APA membership.” Without mentioning Banks, Dunivin said that
she had been corresponding with Koocher on the issue, and while she typically agreed that task
forces should only include APA members, “[i]n this instance I believe there are some reasons to
consider it differently. More later.”1018
Behnke emailed her that afternoon asking for a phone
call, but it is not clear if they connected by phone.1019
But late that afternoon, Dunivin emailed
Koocher to thank him for his conversation (suggesting Dunivin and Koocher had spoken by
phone); her email set out more detail about Banks’s background in an effort to explain again why
Banks needed to be on the task force, in her view.1020
Subsequent emails show that Koocher changed his mind and agreed that Banks should be
on the task force. He told Sidley that the letter from Dunivin that was passed out at the meeting
substantially influenced him.1021
Specifically, Koocher told Sidley that he was eventually
convinced that Banks’s intimate knowledge of SERE training and other interrogation issues
1014 This content of this email, sans the date, was copied onto Banks’s nomination sheet within the packet
of nominees compiled by Behnke and APA staff. HC00008594 at 14.
1015 APA_0035139.
1016 Id.
1017 APA_0035139.
1018 APA_0048446.
1019 Id.
1020 APA_0035139.
1021 Koocher interviews (Mar. 19, 2015 & June 12, 2015).
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outweighed his demand that Banks be an APA member.1022
The day after the selection
committee meeting, Behnke emailed Levant, Koocher, Anton, and Kelly and explained that he
had spoken with Banks, asked him to be on the task force, and had discussed the issue of APA
membership. Behnke’s email did not indicate that Banks would be willing to become an APA
member but said that Banks had indicated that he “‘certainly’ adheres to the APA Ethics Code
and will continue to do so.” Koocher responded that Behnke should tell Banks that “he was the
unanimous first choice of the selection committee . . . that we really want him on board, [and] . .
. that the president-elect [Koocher] has offered to pay his dues and that he is welcome to resign
from APA after serving on the committee if we have not won back his confidence as an
association friendly to our members in the armed services.”1023 Banks did not rejoin APA until
2009.
3.
Final selection of task force members
On March 18, Behnke, Koocher, Levant, and Anton met to finalize the task force
names.1024 A total of 111 nominees were compiled for review at the meeting.1025 Of these 111
names, about 70% (77 nominees) had little or no connection to the military/government (either in
active duty or as a consultant), while the remaining 30% (34 nominees) did.1026 However, 60%
of the 10 task force selections were military/government-affiliated members and 40% were
civilians with no connection to the military/government, as listed below:
DoD members:
x Morgan Banks: Command Psychologist and Chief of the Psychological Applications
Directorate of the U.S. Army Special Operations Command (“USASOC”)
x Robert Fein: Forensic psychologist and consultant to the DoD Counterintelligence
Field Activity (“CIFA”)
x Michael Gelles: Chief Psychologist for Naval Criminal Investigative Service
(“NCIS”)
x Larry James: Chief of Department of Psychology at Tripler Army Medical Center
1022 Koocher interview (June 15, 2015).
1023 APA_0035131. Koocher later clarified to Sidley that Banks might not have been a unanimous first
choice since Gelles and Fein were his top choices. Koocher interview (June 12, 2015).
1024 APA_0035177. The email mentioned that Kelly might be included in part of the selection
discussions, but Kelly stated that she was not part of those conversations. Kelly interview (Apr. 24,
2015). In an interview with Anton, he thought that Honaker was also in the room, but Honaker explained
to Sidley that he had no direct role in the PENS process. Koocher told Sidley that Behnke was the only
staff member in the meeting. Koocher interview (June 12, 2015).
1025 HC00008594. There are 110 names listed at the beginning of the document, but one additional name
is included in the binder, Joy Rice, who was omitted at the beginning.
1026 These numbers were compiled by examining the biographical information included in the nomination
binder, See HC00008594. In some cases, biographical information was incomplete or missing. In those
cases, a nominee was denoted as non-DoD unless indicated otherwise.
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x Bryce Lefever: Product Line Leader at the Naval Medical Center; was Command
Psychologist of the Naval Special Warfare Development Group during September 11
and advised on missions in Afghanistan
x Scott Shumate: Director of Behavioral Science at CIFA
Non-DoD members:
x Olivia Moorehead-Slaughter (chair): Senior Faculty Consultant for the Center for
Multicultural Training Program; Vice-Chair of APA Ethics Committee
x Jean Maria Arrigo: Independent social psychologist; oral historian work focus on
intelligence and military community
x Nina Thomas: Clinical psychologist and faculty member at New York University;
research in ethnic conflict, terrorism, and genocide
x Michael Wessells: Professor of Psychology at Randolph-Macon College and
Columbia University; research and experience in war zones and child protection1027
Behnke’s “PENS” hard-copy file contained two sets of handwritten notes on task force
selections, one set that likely arose before and one set that appears to come, at least in part, from
the March 18 meeting.1028 The sets of notes appear to show listings of individuals who may fit
into certain categories for the task force. For example, the earlier set of notes lists the following
groupings: Ethics, Operations, Research/Science, International, and Peace.1029 The latter set of
notes lists the following groupings: Social Psychologists, Military, Division 48, JD/Forensic,
Trauma/Effects, and International.1030
The earlier set of notes first lists five individuals from the military and DoD (James,
Gelles, Schumate [sic], Banks, and Williams) with a bracket around them and the words
“19/operations”, a reference to Division 19 (military psychology) and the fact that these were
military or Defense Department operational psychologists. It then lists a name from “Science”
(Matarazzo), one from “international” (Wessells), and two unnamed people from “48” (Division
48, Peace Psychology), with one spot open.
The latter set of notes, which Behnke and Koocher thought came from the March 18
meeting, includes a numbering of the task force members from one through ten, and inserts a
dividing line between the top half of the list, who are DoD members, and the bottom half of the
list. Numbers 6 through 9 are non-DoD members.1031 However, number 10 is also a DoD
member, Bryce Lefever. His name appears next to Thomas Williams (“Williams”), whose name
1027 The full biographical statements each member provided for the PENS Task force are available at
1028 HC00008982; HC00008985. Document HC00008992 are likely the earlier set of notes since not all
names of the final task force are listed on this set. Document HC00008985, by contrast, contains the
names of all final members (along with Tom Williams).
1029 HC00008992.
1030 HC00008985.
1031 Id.
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is crossed out. It is probable, then, that the first nine names on the list are intentionally split into
two groups (DoD vs. non-DoD), with the order within those two groups reflecting the selection
committee’s order of preference. But the inclusion of a military member (Williams, then
Lefever) as the tenth members, suggests that after deciding on nine members—and faced with a
decision about whether to choose a fifth non-DoD member or a sixth DoD member—the
selection committee intentionally chose the latter approach.
The 10 task force members are listed as follows in Behnke’s latter set of handwritten
notes:
x Morgan Banks
x Robert Fein
x Larry James
x Michael Gelles
x Scott Shumate
x Michael Wessells
x Jean Maria Arrigo
x Nina Thomas
x Olivia Moorehead-Slaughter
x Bryce Lefever1032
It is unclear from any of the notes, emails, and interviews why Tom Williams’s name was
crossed out and replaced by Lefever. Williams was a top-ten choice by Behnke and the Science
Directorate in mid-January 2005, Dunivin endorsed him, and he was Division 19’s top
choice.1033
There is also no indication from the emails Sidley collected that Williams was ever
offered a position on the task force and declined. Williams confirmed with Sidley that no one
had reached out to him about the PENS Task Force after he had submitted his nomination.1034 It
is possible, however, that Behnke may have wanted an active duty Navy representative on the
task force. Morgan Sammons, Specialty Leader for Navy Clinical Psychology at the time,
originally nominated Lefever. He recalled that Behnke and him had a conversation, likely after
the Feburary 2005 Council meeting, where Behnke inquired whether Sammons had any
nominees for the task force in mind. Sammons told him that he would nominate Lefever.1035
Sammons later spoke with Lefever and, according to Lefever, told him that, if Lefever was
1032 Id.
1033 APA_0023697; APA_0023695.
1034 Williams interview (June 8, 2015). In an email to Sidley, Koocher speculated why Lefever and other
DoD members were ultimately chosen: As I mentioned previously, we were trying to get broad
representation. We very much wanted Gellis because of his status as former military (NCIS) officer who
publically criticized some interrogation practices. We wanted Larry James because he’d gone into Abu
Ghraib on a “cleanup” mission after publicity on bad behavior by MPs and he’d been outspoken about
problems he’d witnessed. Morgan Banks was wanted because of his SERE experience. There most
likely would have been some type of experience or skill Lefever was presumed to have that Williams or
others mentioned by Dunivin did not. Email from Koocher to Sidley (June 13, 2015).
1035 Sammons interview (June 23, 2015).
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interested, “we’ll get you on there.”1036
Lefever said he was interested, offered his nomination
(with Sammons’s blessing), and placed on the task force.
The latter set of Behnke’s notes also includes comments about Dunivin, possibly in
reference to Behnke and Dunivin’s earlier conversations. The notes also state, “Balance of law,
Duty, + Ethics Code.”1037 This language is pulled directly from a subheading of a draft chapter
that Banks and Dunivin were working on at the time, “Providing Psychological Support for
Interrogations” (“PPSI”),1038 which (set out above) became the basis of future BSCT policy
documents at the Department of Defense and from which the PENS report uses language like
“safe, legal, ethical, and effective.”1039
The relevance of the PPSI is discussed further later in
this section as well.
Behnke began scheduling telephone calls with the selected task force members starting
later on Friday, March 18 and through the coming days. His email drafts included a telephone
script he used with each task force member during their conversation.1040 Behnke’s script to
members noted that names would be kept confidential for the “time being,” that task force
“names will be public,” that task force members “must be able to” vote, and that members should
raise any issues that might embarrass APA (the “ugly question” is what this refers to in Behnke’s
notes).1041
In interviews with Sidley, neither Levant, Koocher, Anton, or Behnke recalled what
specific conversations occurred during the March 18 meeting that led them to ultimately choose
these 10 names over other nominees, or why the tenth member chosen was a DoD member rather
than a non-DoD member, even though this decision led to the much-criticized 6-4 split of the
task force (6-3 if you consider that Moorehead-Slaughter was a non-voting chair of the group).
Levant commented that he had a very “hands-off approach to PENS,” and that he likely deferred
to Behnke, Koocher, and Anton.1042 Each offered general insights on those selected but did not
recall the specific decision or conversations about each member. In their interviews (except as
noted below), they offered the following statements about why each member was selected.
Although in light of their caveats that they could remember little about this meeting, we do not
put much weight on these statements:
x Morgan Banks (“Banks”)
1036 Lefever interview (May 3, 2015).
1037 HC00008985.
1038 HC00008909; HC00008914.
1039 Dunivin’s March 18 message to Koocher alluded to Banks’s role in incorporating his language into
past and future Army policy documents: “In fact, he espouses that in writing in the . . . manual he has
developed for psychologists working in this area of practice. Further he has been instrumental in
inserting this language in the Standard Operating Procedures developed at my current location, and we
expect that this language will soon be implemented Army-wide as a result of his efforts.” APA_0035139.
1040 APA_0008984.
1041 Id.; See also Behnke interview (May 22, 2015).
1042 Levant interview (May 13, 2015).
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o As noted above, it appeared that Banks was the top selection of the group.
o Koocher raised issues about his lack of APA membership, discussed further
below.
o Anton recalled that it was important that Banks participate because “he was
the head of the whole thing” and knew about the interrogation history at the
time.1043
x
Robert Fein (“Fein”)
o Koocher described Fein as a long-time friend who had consulted with the FBI
and Secret Service. He explained that Fein was selected because “he had
expertise in threat assessment and ‘knew the scientific data.’ ”1044
o Behnke noted in an email response to Fein’s task force nomination that “there
are no more than a handful of people in the country with your experience and
I will be very happy to speak with Ron Levant personally on your behalf.”1045
x
Michael Gelles (“Gelles”)
o Koocher explained that the selection group specifically selected Michael
Gelles because he was an outspoken opponent to the Bush administration
procedures.1046
x
Larry James (“James”)
o Koocher stated that James was selected because he had been sent to Abu
Ghraib, and Koocher “figured that if there was anybody who would know
about abuses it would be Gelles and James.”1047
x
Bryce Lefever (“Lefever”)
o Koocher believed Lefever, along with Shumate, were selected because they
were “most likely to know the naughty stuff” that was going on, even though
they had not publically spoken out.1048
x
Scott Shumate (“Shumate”)
o See Koocher’s note on Shumate above.
x
Olivia Moorehead-Slaughter (“Moorehead-Slaughter”)
o Anton recalled that the March 18 meeting discussed appointing a task force
chair who was well-respected and neutral. He had a lot of respect for
Moorehead-Slaughter. She was not the only person discussed as chair (as
mentioned earlier, Behnke early on suggested Robert Kinscherff as a possible
task force chair) but he recalled that her diversity was important to the
selection group.1049
x
Jean Maria Arrigo (“Arrigo”)
1043 Anton interview (May 8, 2015).
1044 Koocher interview (Mar. 20, 2015).
1045 APA_0035172.
1046 Koocher interview (Mar. 20, 2015). Gelles had been a whistle-blower on abuses occurring in
Guantanamo Bay related to the Mohammed Al-Qahtani interrogation.
1047 Id.
1048 Id.
1049 Anton interview (May 8, 2015).
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o Koocher commented that he thought Arrigo’s name sounded like she might be
Latina or Asian and that he wanted to achieve ethnic diversity in the task
force.1050
o Behnke’s latter set of notes confirm that the group thought Arrigo was Latina.
For one, there is a note next to Arrigo’s names that says “Latina.” And there
is another note that states “3 women” and “3 minorities;” James and
Moorehead-Slaughter are African-American, so Arrigo was the third member
they thought who was ethnically diverse.1051
x Nina Thomas (“Thomas”)
o Koocher believed that Thomas would be “sophisticated” about these issues
because she was a former television reporter.1052 Thomas also served on the
Finance Committee with Koocher in 2004.1053
o Behnke believed that Levant thought “very highly” of Thomas.1054
x Michael Wessells (“Wessells”)
o Behnke remarked that Merry Bullock advocated his being included in the task
force early on and everyone held him in high regard throughout the selection
process.1055
4.
Overall observations
Several dynamics are apparent in the development of task force nominees from January
through March:
x
APA staff considered the civilian/military split of task force members from the start
of gathering task force nominees. Although the ultimate PENS Task Force was
intentionally weighted in favor of the military and Defense Department (a critical
factor in its outcome), the initial staff-recommended task force members were more
equally divided.
However, things had changed by the February 2005 Board meeting. Prior to the
Board meeting, APA (apparently through Russ Newman) confidentially consulted
with Banks about the language of the actual Board agenda item defining the task
force proposal before the APA Board voted on it, and Banks provided written
comments. At the Board meeting, at which Levant, Koocher, and Newman
participated in the discussion on this item, the Board authorized the creation of the
Task Force but decided not to accept the staff recommendations and instead to solicit
nominations from APA divisions and members.
1050 Koocher interview (Mar. 20, 2015).
1051 HC00008985.
1052 Koocher interview (Mar. 20, 2015).
1053 Treasurer’s Report, APA Annual Report, 2004, available at
1054 Behnke interview (May 22, 2015).
1055 Id.
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Almost immediately thereafter, Dunivin intervened in the process, insisting to Levant
and Behnke that Banks must be included in the task force, and that the composition of
the task force was “critical to accomplishing its mission.” Dunivin then delivered a
strongly-worded letter to Behnke the day before the March 2005 meeting of the task
force selection committee (Levant, Koocher, Anton, and Behnke), in which she
identified all but one of the six DoD members initially chosen for the task force.
Despite the fact that the vast majority of nominations APA received for the task force
were people who had no affiliation with the military or government, the ultimate
breakdown was 6-3 in favor of DoD psychologists and one non-voting non-DoD
chair. Some APA officials and staff involved in the selection process claim that the
ultimate breakdown between military and non-military members ignores the diversity
within the DoD members of the task force. But there is no documented discussion in
the first part of 2005 about the diversity of the DoD members. On the contrary,
Behnke’s handwritten notes indicate he grouped all of the DoD members together in
his categorization of potential task force members.
x
These importantly-timed and confidential consultations with Banks and Dunivin
appear to have been unique—we did not find evidence of APA having similar
consultations with other individuals or constituencies. And they were highly
influential.
x
While some APA officials and staff involved in the selection process claim that the 6-
4 majority did not matter because the eventual report was a “consensus document,”
the discussions in the first part of 2005 indicate an awareness and importance about
members who could vote. The consensus argument made today appears to be a post-
hoc response to the critique about the composition of the task force and, as seen
below, was not an argument raised at the time when this criticism first arose. In
short, it would have been clear to everyone involved in early 2005 that selecting six
voting, DoD members would be a dominant voting bloc within the task force, and
would send a very strong positive message to DoD about APA’s support.
E.
Task force Members Announced and Concerns Arise: April 2005
By April 8, 2005, all 10 task force members had formally accepted a position to serve on
the Presidential Task Force on Ethics and National Security (“PENS”) task force.1056 On April
1056 APA_0024560. Wessells was the last person to accept since he was out of the country during much
of this period. The task force was originally called the “Presidential Task Force to Explore the Ethical
Aspects of Psychologists’ Involvement and the Use of Psychology in National Security-Related
Investigations.” It is not clear when exactly the task force’s name was ultimately shortened to the PENS
Task Force. Nomination emails for the task force sometimes referred to the group as the “task force on
ethics and national security,” and sometimes as the task force on “national security-related
investigations.” Behnke’s emails after the selection meeting to task force selectees referred to the “task
force on ethics and national security,” suggesting that the name was finalized near or during the selection
meeting. Behnke also informed APA’s IT Department on March 29, after being told of character
limitations on creating a new listserv, that the name of the listserv was titled “Psychological Ethics and
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19, Behnke emailed all task force members to inform them that APA would publicize their
names to the Council and that Council members could share that information as they wished.
Behnke also noted that members would receive a packet of background reading materials and
that a PENS Task Force listserv was forthcoming.1057
Each task force member received background materials that totaled nearly 500 pages.1058
The readings included ethical codes for other professional organizations, relevant United Nations
and World Medical Association declarations, court cases, academic articles, and news reports, all
of which appeared to comprehensively cover the relevant issues for the task force. Several of the
materials described specific interrogation techniques that were used at the time and the
controversy surrounding them, for example: (1) Bloche and Mark’s articles that mentioned
sensory and sleep deprivation and stress positions;1059 (2) Washington Times and Boston Globe
articles that described the conflict between NCIS and the DoD over harsh interrogation
techniques (the Washington Times article also alluded to waterboarding) and the DoD’s revised
categories of approved interrogation techniques;1060 (3) a Lancet article that described the abuses
National Security,” and that the full task force name was the “Presidential Task Force on Psychological
Ethics and National Security.” See APA_0048355.
1057 APA_0025245. Fein separately responded to Behnke on April 14, 2005 and noted that he wanted to
discuss “the composition of the group.” APA_0037968. The two scheduled a telephone call thereafter.
Neither Fein nor Behnke could recall the substance of this exchange. Fein interview (May 11, 2015);
Behnke interview (May 22, 2015).
1058 The full set of background materials are not included in this report’s appendix. Instead, the table of
contents and any materials cited above are fully attached. See HC00005567.
1059 Gregg Bloche & Jonathan Marks, Doctor’s Orders - Spill Your Guts, Los Angeles. Times (Jan. 09.
Jonathan Marks, When Doctors Go to War, New England Journal of Medicine (Jan. 6, 2005), available at
1060 HC00005567, Tabs 17, 25, & 26. Outside of these background materials, the use of waterboarding
was well-covered in the media. One of earliest media reports about waterboarding detainees was June
2004. A New York Times article from June 2004 about the 9/11 Commission Report included unnamed
senior officials stating that Khalid Sheikh Mohammed was waterboarded—“a technique in which his head
was pushed under water and he was made to believe that he might drown.” David Johnston & Don Van
Natta, Jr., Threats and Responses: The Interrogations; Account of Plot Sets off Debate Over Credibility,
responses-interrogations-account-plot-sets-off-debate-over-credibility.html. Three days later, Newsweek
published an article that noted the approved use of waterboarding on Abu Zubaydah in the context of
John Yoo’s 2002 DOJ memo on accepted interrogation techniques. Newsweek described the technique as
“dripping water into a wet cloth over a suspect's face, which can feel like drowning.” John Barry, A
128593. By March 2005, then-CIA Director Porter Goss was questioned about waterboarding at a
congressional hearing by Senator McCain. Douglas Jehl, Questions Are Left by C.I.A. Chief on the Use of
Torture, New York Times (March 18, 2005), available
In April 2005, New York Times columnist Bob Herbert declared that “’euphemisms like . . .
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at Abu Ghraib with an overview of the harsh tactics used against prisoners;1061 (4) a transcript of
an interview with Neil Lewis in which he described the FBI’s concerns with the abusive methods
being used at Guantanamo Bay;1062 and (5) the Istanbul Protocol, which outlined specific torture
techniques more broadly and how one could identify the signs of each.1063
APA publicized the task force member names within APA in at least two ways. Council
was given a list of the PENS Task Force members along with their biographies over email on
April 26, 2005, and APA’s Science Policy Insider News, an electronic publication of the Science
Directorate, released the names of the task force members in its May 20, 2005 issue.1064 Several
APA Divisions, either through their Council representatives or representatives from other
Divisions, received the names of the task force members. Division 48 (Peace Psychology)
posted the names and biographies of the task force members on its website on May 5, 2005.1065
Linda Woolf, then-President of Division 48, informed Sidley that no one at APA ever asked that
the Division remove this information.1066 However, when the PENS report was released, no
names of task force members were listed, apparently due to sensitivities from some of the
members.1067
By April 27, 2005, the day after the Council received the task force member names, APA
had already received two written expressions of concern over the number of DoD members on
the task force. First, on the Committee for the Advancement of Professional Practice listserv,
David Hess stated that the PENS task force members were an “interesting array of individuals”
but “wondered about conflicts in interest. Some of these individuals appear to be in security
positions within government.”1068 Behnke forwarded the message to Levant and noted that he
would like to “nip” the conflict of interest point “in the bud.” Behnke explained to Levant the
importance of having a task force with “first-hand knowledge of what psychologists are actually
waterboarding are now widely understood.” Bob Herbert, On Abu Ghraib, the Big Shots Walk, New
the-big-shots-walk.html.
1061 HC00005567, Tab 22.
1062 HC00005567, Tab 23.
1063 HC00005567, Tab 36 (table of contents only).
1064 Council listserv email (Apr. 26, 2005); SPIN listserv email (May 20, 2005).
1065 The webpage still exists today. See Members’ Biographical Statements, American Psychological
Association Presidential Task Force on Psychological Ethics and National Security (May 5, 2005)
available at https://www.clarku.edu/peacepsychology/tfpens.html.
1066 Woolf interviews (Mar. 26, 2015 & Mar. 31, 2015).
1067 APA_0040386.
1068 APA_0844437.
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doing; the Task Force could not fulfill its charge without a solid grasp of what roles
psychologists take in national security-related activities.”1069
Separately, Division 32 member Marsha Hammond submitted an inquiry via the “Ask the
President” email address raising the same point:
It’s an interesting bunch of people. All appear well qualified. However, this
caveat would be in order, I believe: Out of the TEN members of the committee,
six are employed / associated with, per their bios, by the Armed Services. While
this could be argued to be appropriate in terms of information gathering - and
indeed essential, their vested interest in the outcome cannot be discarded.
Moreover, they outnumber the others. It seems to me that unless the REAL
agenda is to white wash the behavior of mental health specialists in the Armed
Services re: torture and associated practices, APA would have chosen 4 or 5
Armed Services-related people. I'd like to think otherwise, but frankly that would
be to stupidly dismiss the arm-twisting tactics of Bush's administration and what
people are ‘encouraged’ to do in terms of what they say.1070
Behnke forwarded Hammond’s email to Farberman, Newman, Gilfoyle, and Childress-
Beatty, explaining that this was the second message that raised a conflict of interest issue
regarding the composition of the PENS Task Force, and he suggested a draft response.1071
Behnke ultimately sent Hammond a reply on May 5, 2005 that underscored the importance of
having DoD members and the lack of an investigatory role for the task force. It read in part:
[I]t is very important for this task force to include individuals who know what role
psychologists are asked to assume in national security-related activities. Such
information is absolutely essential for the Task Force to do[their] work . . . much
in the same way a group revising the Standards for Educational and Psychologist
Testing would need Division 5 and school psychologists as important
contributors.
You voice a concern about possible conflicts of interest. I would like to clarify
that the Task Force does not have an investigatory or adjudicatory function or
role
Please note that according to APA Bylaws, the APA Ethics Committee is
charged with conducting investigations and adjudicating ethics complaints.1072
Hess’s and Hammond’s notes were the first of many complaints lodged against APA about the
composition of the PENS task force in the days, months, and years ahead.
1069 Id.
1070 APA_0047793.
1071 Id.
1072 APA_0047772.
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II.
PENS LISTSERV AND RELATED DISCUSSIONS
The PENS listserv emails spanned from April 2005 to June 2006.1073 The description of
messages and notes below highlight noteworthy correspondence leading up to the PENS Task
Force meetings in late June 2005. The full set of listserv emails are appended to this report.
A.
Listserv begins: Gelles’s Opening Thoughts, Behnke’s Handling of Moorehead-
Slaughter, Tensions between Gelles and Shumate
Moorehead-Slaughter formally accepted her position as the PENS task force chair on
April 5, 2005.1074
She had been discussed as the possible PENS Task Force chair as early as
January 2005 when Kelly, Mumford, and Behnke compiled their early lists of task force
candidates.1075
In her interview with Sidley, Moorehead-Slaughter surmised that, despite her
lack of national security experience, she was appointed as chair because of her ethics background
(she was Vice-Chair and incoming-Chair of the Ethics Committee during that time) and her
facilitation skills.1076
Behnke commented that her and Moorehead-Slaughter had many of the
same views on the task force and would often discuss them over the telephone or email as the
PENS Task Force listserv and meetings proceeded.1077
Behnke sent out the first email on the listserv on April 22, 2005, informing the group that
the listserv was “hidden” in order to provide an “extra layer of security” for task force
matters.1078
Gelles was the first task force member who offered substantive thoughts on the listserv.
An email he sent to Behnke was forwarded to the entire group on April 23, in which Gelles
commented on the role of psychologists in interrogation settings in upcoming DoD policy
revisions.1079
Gelles’s position here, which remained consistent through the PENS process, was
that psychologists should never conduct interrogations and should, instead, consult with the
interrogators only. He expanded on his thoughts on May 5, at the prompting of Moorehead-
Slaughter, offering a seven-point overview of his approach.1080 Gelles repeatedly noted the need
for psychologists to “stay in your lane” and not take on roles they were not trained to do. Gelles
also called for the need to separate operational consultants from health care providers and noted
1073 See generally PENS Listserv, available at
http://s3.amazonaws.com/propublica/assets/docs/pens_listserv.pdf. There is one additional email on the
PENS listserv from November 11, 2008 from PENS members Arrigo and Wessells re: the PENS process.
The email was sent to multiple listservs, however, and is not a PENS-only correspondence.
1074 APA_0038313.
1075 See, e.g., APA_0023209.
1076 Moorehead-Slaughter interview (Apr. 20, 2015).
1077 Behnke interviews (May 22, 2015 & May 29, 2015).
1078 PENS listserv (Apr. 22, 2005).
1079 PENS listserv (Apr. 23, 2005).
1080 PENS listserv (May 5, 2005).
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that the government or agency was the client, not the detainee.1081 Much of Gelles’s views were
educated by his experience in law enforcement; as he told Sidley, his approach during his time at
Guantanamo Bay was trying to make criminal cases that his team could bring to a United States
court.1082
Several points of interest emanate from Gelles’s opening remarks. First, Gelles and
others’ comments on the listserv, save for Arrigo, do not broadly question the utility of
psychologists in interrogation settings. Instead, members discussed how best to use
psychologists and who the “client” was in interrogation settings. Those who opined on the client
question all stated that the government was the client.1083 There was more differentiation with
DoD members on how best to use psychologists—Gelles took an absolutist position, believing
psychologists should not be the “strategic decision makers” in an interrogation,1084 while others
like Banks and James thought that psychologists could help on the strategic side depending on
the circumstances.1085
Second, Moorehead-Slaughter’s message to Gelles inquiring for additional thoughts was
prompted by an email from Behnke to Moorehead-Slaughter. In it, Behnke suggested to probe
Gelles’s thoughts further to spur discussion across the task force participants.1086
But this
message was only the first several other missives and suggestions Behnke sent Moorehead-
Slaughter during PENS. In fact, Behnke drafted or outlined nearly every correspondence
Moorehead-Slaughter sent over the PENS listserv, offered an outline of comments and analysis
ahead of the PENS meetings, and provided her talking points after the report received criticism
from inside and outside of the task force. He also drafted or reviewed nearly every message
Moorehead-Slaughter sent to Koocher, Anton, or Levant about the task force outside of the
listserv. Moorehead-Slaughter, in turn would dutifully send Behnke’s talking points or
statements with little, if any, of her own edits. On May 5, after Behnke had sent Moorehead-
Slaughter a draft note on Gelles’s latest remarks, she thanked Behnke and stated that “[y]our
thinking and mine are along similar lines. Having your feedback/response is helpful.”1087
Both Moorehead-Slaughter and Behnke confirmed that Behnke drafted and provided
guidance to Moorehead-Slaughter during the PENS process to facilitate discussion.1088
Moorehead-Slaughter added that it was Behnke’s modus operandi in other task forces to write
draft statements for others to post on listservs.1089
Several PENS interviewees indicated that
Moorehead-Slaughter acted more as a facilitator and offered little substantive thoughts on the
1081 Id.
1082 Gelles interview (Apr. 15, 2005).
1083 See, e.g, PENS listserv at Koocher (May 6, 2005) & Banks (May 11, 2005).
1084 PENS listserv (May 18, 2005).
1085 See PENS listserv at James (May 18, 2005) & Banks (May 19, 2005).
1086 APA_0542728.
1087 APA_0511430 (May 4, 2005).
1088 Moorehead-Slaughter interview (Apr. 20, 2015); Behnke interview (May 22, 2015 & May 29, 2015).
1089 Moorehead-Slaughter interview (Apr. 20, 2015).
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discussions. Others opined that she appeared outside of her expertise area. Behnke’s staunch
handling of Moorehead-Slaughter’s communications, coupled with Moorehead-Slaughter’s lack
of experience in national security issues, signal that Moorehead-Slaughter was used primarily as
Behnke’s agent during the PENS process.
A third issue Gelles’s comments raised was the tensions he had with task force member
Scott Shumate. After his initial email in April, Kelly separately inquired to Shumate about
whether Gelles was supposed to have disclosed details of a new DoD policy already. Shumate
said he should not have and that Gelles “really gets [his] goat" and that “his ego is out of
bounds.” Notably, he alluded to an APA ethics complaint against Gelles before September 11
and implied that APA closed the case after September 11 so as not to be perceived as taking an
anti-government position.1090 He noted that Melvin Gravitz conveyed this message to APA.
More about the Gelles ethics complaint is discussed in later in this report. Shumate later
forwarded another exchange between Gelles and Shumate from April 28 regarding a
conversation the two had about CIFA and NCIS working together, which indicated the two had a
close relationship together before but had suspicions of one another now.1091 Gelles told Sidley
that Shumate was one of his best friends and of the finest operational psychologists during this
time, but the two had grown apart after Shumate shifted from the CIA to CIFA.1092 The
exchanges illustrate that not all the DoD task members were as friendly with one another despite
their similar experiences.
B.
Banks and Others Weigh-In, Arrigo Raises Issues, Koocher-Arrigo Exchanges:
May 2005
Behnke encouraged Moorehead-Slaughter to bring Banks into the discussion of
organizational clients and ethical obligations on May 10.1093 Moorehead-Slaughter did so on
May 11 on the listserv, and Banks offered his thoughts.
In his first message to the group, Banks attached Army Regulation 190-8, which provides
all DoD personnel guidance on the treatment of “Enemy Prisoners of War, Retained Personnel,
Civilian Internees, and Other Detainees.”1094 Banks declared that the group should focus on
what types of actions may be legal but unethical as part of their discussions; this was not
ultimately fleshed out in the final report. Banks also quoted from a draft BSCT policy he was
1090 APA_0129871.
1091 APA_0129869.
1092 Gelles interview (Apr. 15, 2015).
1093 APA_0047737.
1094 Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees, Departments
of the Army, the Navy, the Air Force, and the Marine Corps (Oct. 1, 1997), available at
http://www.apd.army.mil/pdffiles/r190_8.pdf. Banks admitted that the Secretary of Defense’s early
declaration that the Geneva Conventions did not apply to detainees would have trumped 190-8. But by
the time the PENS process had started, Banks believed that everyone at DoD agreed that 190-8 applied.
He had directed his teams to follow 190-8 from the beginning of his involvement with the War on Terror
after September 11. Banks interview (May 21, 2015).
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crafting during this time; he brought copies of this draft policy to the PENS meetings.1095 As
discussed, the draft policy was called “Providing Psychological Support for Interrogations”
(“PPSI”). Banks confirmed with Sidley that he was still forming his policy positions at the time
and was articulating them over the listserv.1096 He explained that him and Dunivin first began
crafting the PPSI while they were both in Guantanamo Bay in the fall of 2004 and that the draft
was still new during the PENS process.1097 Banks later distributed copies of these draft
instructions during the PENS meetings and asked that it remain confidential so that the document
was not construed as official Army policy at the time.1098 Banks asserted that he spearheaded the
PPSI and no one from DoD or the U.S. government pushed him to draft the document.1099 While
this may be true, the draft PPSI and Banks’s views on these issues held enormous influence on
subsequent policy pronouncements from the Army Surgeon General, as discussed later in this
section.
Arrigo also sent a message on May 11 questioning, among other issues, the effectiveness
of ethical safeguards in national security settings. As Arrigo wrote:
Societal response is a natural check on the behavior of professionals
In many
domains of national security, psychologists cannot both be effective employees
AND be subject to independent ethics review. Yet without independent ethics
review, there is no way to distinguish between (a) justifiable moral trade-offs for
national security gains and (b) deluded, incompetent, or self-interested
behavior. . . I think a foundational question for PENS is whether outside
accountability CAN be designed into the national security positions of
psychologists whose effectiveness depends on secrecy.1100
Arrigo most vocally questioned the group’s mission and scope before, during, and after
the PENS meetings. She inquired whether psychologists had proper ethical safeguards in
national security settings, sought additional information about the composition of BSCT teams,
and protested the level of secrecy during and after the PENS meetings.
Arrigo also clashed with several members and observers of the task force, most notably
Koocher. At nearly every turn on the listserv and during the PENS meetings, Koocher retorted
many of Arrigo’s claims, requests, and observations. To Arrigo’s May 11 message, Koocher
responded in part that he rejected the “foundational premise” of Arrigo’s assertions and that
thought Arrigo’s “societal response” was an “illusory concept of little pragmatic utility in the
long run.”1101
Koocher’s responses were starker given that he was a Board liaison and not an
official task force member. There was no evidence we found, however, that suggested Koocher
1095 PENS listserv (May 11, 2005).
1096 Banks interview (May 21, 2015).
1097 Id.
1098 Banks interview (May 21, 2005).
1099 Id.
1100 PENS listserv (May 11, 2005).
1101 Id.
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coordinated his challenges to Arrigo with Behnke or anyone else associated with the task force,
save for a response he made about the casebook project (discussed below). Otherwise, it appears
Koocher acted on his own accord. Koocher told Sidley that he acted as an enforcer against many
of Arrigo’s thoughts, which aimed to broaden the scope of the task force’s mission. To Koocher,
it was important to narrow the actions of the task force since a report was needed at the end of
the weekend of the meetings, especially to combat press reports critical of psychologists in
interrogation settings.1102
The Geneva Conventions and conflicts between law and ethics were discussed on the
listserv as well. James first emailed the group on May 12 and recounted some of his experiences
at reducing abuses at Abu Ghraib; he underscored the need to abide by the Geneva
Conventions.1103 Thomas first emailed the group on May 13 and inquired about the guidance the
group could provide in cases where the law and ethics were “incongruent.”1104 Koocher built off
Thomas’s point by explicitly mentioning the concern with the OLC memoranda and its
definitions of torture, likely a reference to the leaked OLC memos in 2004.1105 Gelles also
suggested on May 18 that the Geneva Conventions may be a “good place to start.”1106 Despite
these listserv discussions, the PENS report does not fully embrace international legal standards.
The report instead encourages psychologists to review the Geneva Conventions and the U.N.
Convention Against Torture in order to perform ethically and to analyze when there might be a
conflict between the law and ethics,1107 but does not specifically define when those conflicts
arise (by not defining “torture” in the document, for example, Koocher’s concern here is never
fully addressed). More on the views surrounding international law are discussed below in a
summary of the first day of the PENS meetings.
Fein emailed the group for the first time on May 18 and posted a hypothetical scenario
involving a psychologist who is aware of unethical activities of another psychologist.1108 Fein
was not an active participant on the listserv and offered few comments during the PENS
meetings. Arrigo noted to Sidley that Fein contacted Arrigo in January 2005 about providing
relevant articles for a class he was teaching at Harvard at the time and suggested she could also
receive a paid consulting job if she was interested in contributing to his work on interrogation
research in Educing Information.1109 Arrigo speculated that Fein was trying to “screen” her into
1102 Koocher interview (June 12, 2015).
1103 PENS listserv (May 12, 2005).
1104 PENS listserv (May 13, 2005).
1105 PENS listserv (May 14, 2005).
1106 PENS listserv (May 18, 2005).
1108 PENS listserv (May 18, 2005).
1109 Arrigo interview (Apr. 27, 2015). Fein joined the Board of the Intelligence Science Board in 2003.
Chartered in August 2002, the Intelligence Science Board advised the Office of the Director of National
Intelligence and the Intelligence Community on advances in science and technology applicable to issues
of importance to the Intelligence Community. The Board was composed of approximately twenty-five
scientists from a range of disciplines, including physical sciences, information technology and policy, and
the law. Fein proposed that the Board develop scientific knowledge on interrogations. Fein chaired the
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being placed on the PENS Task Force. People may have thought that Arrigo was an “easy
mark,” she continued to tell Sidley.1110 Fein told Sidley that he and Arrigo did talk in January
2005 and that Arrigo’s recollection of its substance was seemed accurate.1111 But Fein stated
that he was not thinking of the PENS Task Force and that no one directed him to reach out to
Arrigo at that time. Based on other emails as well, it appears that Fein was not aware of the
PENS Task Force until after this conversation with Arrigo. As noted earlier, Robert Kinscherff
raised Fein’s name to Behnke in mid-February, and Fein emailed Behnke on March 1, 2005
asking whether it was too late to submit his name for consideration on the task force. Fein noted
that Shumate had encouraged him to apply for a position.1112
After Arrigo called Moorehead-Slaughter and others to clarify the scope of the June
PENS meetings, Behnke and Moorehead-Slaughter exchanged emails separately on May 18
about the need to determine what could reasonably be done during the PENS meetings. They
planned to discuss these issues further at a previously-scheduled meeting later in June.1113
On May 19, Banks used the term “safe, legal, ethical, and effective” to describe his
framework for thinking about psychologists’ proper roles in interrogation settings.1114 This
phraseology appeared in Banks’s PPSI and, as mentioned, ultimately undergirded the PENS
report and subsequent DoD policy on this issue. Banks added that the group “should focus on
the ethical left and right limits of particular types of psychology support, e.g., interrogation
support.”1115
Arrigo offered a draft set of questions for the task force meetings on May 22.1116 She
included the following questions: “Should APA declare the contribution of psychologists to
coercive interrogation incompatible with the ethical obligations of the profession?” and “Should
APA exclude from membership psychologists who intentionally or negligently contribute to
coercive interrogation?”1117
Koocher refuted Arrigo’s call to exclude members: “This question
group, and developed a small team, which included Shumate and Gelles, to review the literature on
interrogations and discuss the current state of knowledge with members of the Intelligence Community,
the military, and law enforcement. In 2006, Fein’s team produced the book Educing Information to
encapsulate the then-current body of knowledge relating to interrogations. In 2009, Fein produced a
follow-up report that drew clearer lines between coercive and non-coercive interrogation techniques from
a science-based perspective. In 2010, the Intelligence Science Board was disbanded.
1110 Arrigo interview (Apr. 27, 2015).
1111 Fein interview (May 11, 2005).
1112 APA_0035712.
1113 APA_0047588.
1114 PENS listserv (May 19, 2005).
1115 Id.
1116 PENS listserv (May 22, 2005).
1117 Id.
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seems naive since APA will likely never know about such conduct, nor be in a position to
investigate it.”1118
Koocher offered additional thoughts to Arrigo’s first question, however,
about the types of questions to ask about coercive interrogations, none of which were included in
the PENS report.1119 Koocher later told Sidley that the task force’s mission was narrow,1120 but
his earlier listserv comments suggested that he was asking broader questions that were
unanswered by the time of the PENS meetings.
Arrigo and Banks exchanged messages related to questions Arrigo had about what
current roles psychologists played in interrogation settings. At one point, Arrigo directly posed
to Banks whether there was a “natural crossover from SERE training to coercive
interrogation,”1121 which was precisely what Mitchell and Jessen executed during their
interrogation work with the CIA. Banks did not address whether this “crossover” had occurred
and instead underscored that purpose of SERE training and the purpose of interrogations were
“diamet[r]ically opposed” to one another.1122
C.
Observers Considered, Newman’s Conflict of Interest, Choosing “Safe, Legal,
Ethical, and Effective”: June 2005
1.
Task force observers
Task force observers were discussed on the listserv in June 2005, though the topic had
been discussed internally at APA as early as April 2005. Mumford had raised the possibility in
early April of adding Brandon as an observer.1123 Along with her science background, Mumford
noted that “politically it would be helpful/smart to have a White House observer.”1124 In late
April, APA Senior Policy Advisor Ellen Garrison also mentioned that Jeff McIntyre, then-Senior
Legislative and Federal Affairs Officer at APA, was interested in sitting-in on the meetings.1125
McIntyre was ultimately accepted as an observer but, as he told Sidley, chose not to participate
after he was told he could not speak, could not take any documents with him, and would be
bound by certain rules of confidentiality.1126
Observers were discussed earnestly in early June 2005. Behnke sent an email on June 1
to Koocher, Anton, and Moorehead-Slaughter informing them that staff had a question about
1118 PENS listserv (May 23, 2005).
1119 Id.
1120 Koocher interview (May 19, 2005).
1121 PENS listserv (May 23, 2005).
1122 Id.
1123 APA_0024572.
1124 Id.
1125 APA_0025884.
1126 McIntyre interview (Jan. 20, 2015). It appeared that McIntyre did not notify either Kelly or Behnke
that he planned to skip the meeting; Kelly speculated to Behnke that McIntyre’s ego may have been a
factor. See APA_0040763.
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whether observers were permitted.1127 Behnke stated that some APA staff were interested in
attending and that the group should consider inviting “non-staff” like Brandon and
representatives from the FBI.1128
Levant agreed with Behnke.1129 Anton agreed to include APA
observers who had a “direct interest” in the task force, and to invite “selected observers” from
outside APA.1130 Koocher also agreed and offered the most full-throated support for outside
observers from the FBI or CIA.1131
After receiving their blessings, Behnke emailed Kelly, Breckler, and Mumford about how
they could proceed. Behnke outlined five different options; the group ultimately chose a
combination of the first and fifth options:
1) Ask the Task Force members themselves whom they would suggest including
as observers;
2) Identify particular groups and invite them to send observers;
3) Send a letter around to all the Divisions and State Psych. Associations, inviting
those groups to send observers;
4) Invite anyone who was nominated to attend as an observer;
5) Keep to our original plan, and identify particular people whom we would like
to invite.
We should be mindful that if we really open this up we may get LOTS of
people. . . Thoughts?1132
On June 3, 2005, Moorehead-Slaughter requested whether the PENS Task Force had any
suggestions on observers.1133 A mere 20 minutes after her message, Anton suggested Newman
as an observer. Banks affirmed Anton’s suggestion 10 minutes later and Moorehead-Slaughter
confirmed Newman’s selection ninety minutes thereafter.1134 Newman’s marriage to Dunivin
was not disclosed on the listserv. While many of the DoD members knew of Newman’s
1127 APA_0048842. Notably, Behnke’s message predated a June 2 message from Arrigo on the listserv
that called for an advance agenda. Sidley found no evidence that the suggestion of observers was
precipitated by Arrigo’s call for specific agenda items ahead of the PENS meeting.
1128 Id.
1129 APA_0027161.
1130 APA_0027619.
1131 APA_0030186. Koocher wrote: “In thinking about the PENS task force, I would encourage us to be
open and even to invite observers (e.g., FBI and CIA psychologists). Why? The presence of such people
can only improve the outcome. They may or may not chime in with perspectives hypothetical situations,
etc. However, I have no doubt that they will hear thoughtful, well reasoned, constructive efforts on how to
guide our colleagues in difficult situations. Since out task force is not authorized to have access to
identifiable ethics case materials and we certainly only have access to public policy documents, press
accounts, etc., it seems to me that inviting interested others does no harm and may do good (i.e., enrich
the discussion, suggest helpful directions, defuse anxieties, etc.).”
1132 APA_0027161.
1133 PENS listserv (June 3, 2005).
1134 Id.
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relationship with Dunivin, none of the non-DoD members told Sidley that they did. Newman’s
role on the task force proved consequential and is discussed later in this section.
Later on June 3, James separately raised issues that an open meeting would have on the
safety and confidentiality of the PENS meetings.1135 Though he was fine with Newman
attending, James requested that he “know who will attend, why, which group he/she will
represent before anyone else attends.” Behnke drafted Moorehead-Slaughter’s response to
James, which stated that the “parties in the room will be ‘known entities,’ who have been
approved to be there.”1136 Both of these episodes are discussed in greater detail in other parts of
this report.
The only other outside observer discussed and approved on the PENS listserv was Melvin
Gravitz , long-time APA member and CIA contractor/psychologist (and sometimes called the
“father of operational psychology”). Gelles suggested Gravitz on June 6.1137 Gelles told Sidley
that Gravitz was his closest mentor; he thought he volunteered Gravitz without suggestions from
others involved with or on the task force.1138 Behnke did, however, send Moorehead-Slaughter a
note after Gelles recommended Gravitz, and stated that he was an “excellent choice,” and that
Moorehead-Slaughter should ask Gelles to expound upon Gravitz’s background.1139 Gravitz was
approved as an observer shortly thereafter. Our investigation uncovered that Gravitz had played
an important role inside the CIA in clearing the way for CIA contract psychologist Jim Mitchell
to continue participating in CIA interrogations in 2003 after some within the CIA protested that
his work was unethical, and had also attempted to influence an APA 2002 disciplinary
proceeding against Michael Gelles.1140
1135 Id.
1136 APA_0508264; see also PENS listserv (June 3, 2005).
1137 PENS listserv (June 6, 2005).
1138 Gelles interviews (Apr. 15, 2015 & May 27, 2015).
1139 APA_0048809 (June 6, 2005).
1140 In 2003, in response to an internal dispute within the CIA about whether it was ethical for CIA
contract psychologist Jim Mitchell to continue to participate in interrogations, Gravitz provided a written
ethics opinion to Mitchell and the CIA in which he concluded that the APA Ethics Code should be
“flexibly” interpreted and important weight given to the “ethical obligation” to protect the nation from
harm. As a result of Gravitz’s opinion, we were informed, Mitchell was able to continue his participation
in the interrogation program. We also learned that in 2002, when Gelles was being investigated by the
Ethics Office for a disciplinary complaint (as has been publicly reported) relating to his interaction with a
soldier under criminal investigation for espionage, Gravitz made a point of speaking to Behnke about the
case and warning him that action against Gelles could harm national security. Behnke said that this had
no effect on him, but he later took over the investigation from the assigned investigator (who strongly
believed that Gelles had committed an ethical violation) in an unusual fashion during her temporary
absence, causing the investigator to say that Behnke was manipulating the situation and taking advantage
of her absence. After Behnke’s involvement, the APA Ethics Committee voted unanimously to find no
violation against Gelles. More about this episode is discussed in the report’s section on APA
adjudications.
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Both Gravitz (who was there for days two and three of the meeting) and Newman spoke
during the meeting in ways that supported the military/DoD psychologists. And, as discussed
more below, Newman spoke forcefully about the importance of achieving APA’s PR goals in a
manner that was inconsistent with the efforts by some of the non-DoD psychologists to push for
stricter, more specific ethical guidelines.
Other APA employees were present at the meeting, but were not formally approved on
the listserv—Anton, Breckler, Brandon, Farberman,1141 Kelly, Koocher, Mumford, and APA
Office Manager Rhea Jacobson.
2.
Newman’s conflict of interest
Newman had an obvious conflict of interest, since his wife was highly interested in the
outcome of this policy decision by APA, and was one of the DoD psychologists who would be
most affected, positively or negatively, by the ethical position about which APA was supposed to
be deliberating.
Newman told Sidley that he believed Anton may have conversed with him before his
listserv nomination about serving on the task force due to Newman’s interest in practice issues
that would arise during the meetings.1142 Anton told Sidley that he thought someone encouraged
him to nominate Newman for the task force but could not recall who it was; he speculated that
Moorehead-Slaughter or Behnke may have spoken with him.1143 Anton reflected that he could
see how Dunivin might have suggested to Banks that he second Anton’s suggestion since the
nomination was finalized so quickly. These comments suggest that there was some coordinated
effort to have Newman on as a task force observer.
When asked about whether there was a conflict of interest in his observer appointment,
Newman stated that there was not and that “everyone” at APA knew of his relationship with
Dunivin. In addition, Newman stated that his role as an observer was a “specific” one that did
not allow him to vote on any issues, offer comments to the draft reports, or participate in
additional conversations outside of the meetings. Newman expounded that it was important that
the interest he had was represented during the task force. He worried that APA would have
included people with little knowledge of the situation or that people would respond emotionally
to the issues without carefully considering psychologists’ important roles in detainee
interrogation settings.1144
Anderson admitted that he did not fully think through the implications of Newman’s
presence as an observer at the time but that, in retrospect, Newman’s conflict should have been
explicitly addressed. He stated that no one from APA staff came to him with the conflict issue at
the time, but he thought that Behnke (as Ethics Director), Gilfoyle (as General Counsel), or
1141 Thomas suggested that Farberman be included in discussions, but there was no formal vote/approval
of her presence on the listserv. PENS listserv (June 20, 2005).
1142 Newman interview (Apr. 29, 2015).
1143 Anton interview (May 8, 2015).
1144 Id.
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Newman himself would have been best positioned to raise the conflict issue explicitly with
Anderson.1145 Honaker said that Newman’s involvement was a “clear conflict” in retrospect, but
that he had assumed that all members of the task force were fully informed about the relationship
and Dunivin’s position at Guantanamo Bay at the time. But he stated that the issue was not as
problematic for him then since Newman did not have a decision-making role on the actual task
force. He agreed that he did not take any steps to raise a question or discuss the issue with
Anderson, the Board, Behnke, or Gilfoyle.1146
Behnke did not recall how Newman was originally discussed as an observer, but admitted
that, in hindsight, he should have formally disclosed to the task force Newman’s relationship
with Dunivin.1147 Farberman told Sidley that she was “shocked” to learn of Newman’s presence
at the PENS meetings because of a clear conflict of interest, but she did not recall raising the
issue with anyone at the time.1148 Gilfoyle, who was not involved in observer selection, also was
surprised to learn of Newman’s involvement during the meetings and suggested that disclosing
Newman’s marriage to Dunivin at the time would have remedied any issues with his presence.
Both Behnke and Gifloyle conveyed to Sidley, however, that if Newman wanted to be apart of
the task force meetings, that he would have been—both because of his strong personality and
because of his prominent position within APA as leading the Practice Directorate.1149
Behnke also stated that, in general, it was not unusual for the head of the Practice
Directorate to attend meetings and task forces that related to the practice of psychology. And the
conflict may not have been seen as problematic since, Behnke declared to Sidley, the question
the task force was charged to answer was not whether psychologists should be involved in
interrogation settings but how and in under what appropriate circumstances.1150 Koocher also
confirmed with Sidley that the purpose of PENS was to give ethical guidance to psychologists in
interrogation settings and not to bar them entirely.1151
If this framework is correct, however,
then it appears APA never seriously questioned whether psychologists should be in detainee
interrogation settings in the first place.
Newman owed a duty of loyalty to APA, which was in the midst of determining its
ethical position on this critical issue. In doing so, APA needed to determine how to balance at
least two important values: the importance of psychologists assisting the government in getting
accurate intelligence information about potential future attacks in order to protect the public, and
1145 Anderson interview (June 23, 2015).
1146 Honaker interview (June 23, 2015).
1147 Behnke interview (May 22, 2015). He also noted that in early January 2005, when Mumford raised
the Dunivin issue to members of APA leadership, it was known that Dunivin was stationed at
Guantanamo Bay but that APA did not have a full understanding of what she was specifically doing at
this time.
1148 Farberman interview (May 19, 2015).
1149 Behnke interview (May 22, 2015); Gilfoyle interview (May 20, 2015).
1150 Behnke interview (May 22, 2015).
1151 Koocher interview (June 12, 2015).
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the importance of psychologists not intentionally “doing harm” to individuals except perhaps
under carefully defined and constrained circumstances (such as helping an FBI agent ask
questions of a Mirandized criminal defendant that might “harm” the defendant in the sense that it
might produce evidence that could result in the defendant’s conviction or a prison sentence). In
determining its position, APA also needed to balance, on the one hand, the views and positions
of military and national security psychologists with, on the other hand, the views and positions of
those outside the military/national security system.
Because of Dunivin’s obvious and strong interest and bias on these points, Newman had
a classic conflict of interest, and it was incumbent upon him and APA to keep him out of the
discussions and deliberations on this topic, and to disclose the conflict. Instead, the opposite
occurred. No disclosure was made; Newman and Dunivin were included at many of the key
points of the process, including the task force selection process and the task force deliberations;
and both Newman and Dunivin inserted themselves and influenced the process and outcome in
important ways. The various APA officials who were aware of the conflict and of all or some of
Newman’s and Dunivin’s involvement—including principally Ethics Director Behnke, APA
President Ron Levant, APA President-Elect Gerald Koocher, and also including to a lesser extent
CEO Norman Anderson, Deputy CEO Michael Honaker, and General Counsel Nathalie
Gilfoyle—took no steps to disclose or resolve the conflict.
3.
Failed observers
There were other potential observers as well. In mid-June 2005, Behnke and Mumford
both unsuccessfully reached out to their FBI contacts who were unavailable during the PENS
meeting dates. Behnke explained the importance of having an FBI representative to Stephen
Band to no avail.1152 Arrigo suggested that APA legal counsel, an ethicist, and Matt Wynia of
the American Medical Association would be good candidates as observers. Moorehead-
Slaughter partially addressed Arrigo’s request by responding that APA General Counsel staff
would be readily available but there was no mention of Wynia after Arrigo’s initial
suggestion.1153
Behnke also failed to add as observers Gregg Bloche and Jonathan Marks. On June 22,
2005, Behnke sent Moorehead-Slaughter, Koocher, and Anton (including other APA leadership)
a summary of upcoming news reports on psychologists in wartime interrogation settings. He
attached Gregg Bloche and Jonathan Marks’s upcoming article in the New England Journal of
1152 APA_0027214; APA_0026254. Behnke wrote: Likewise, Steve [Band], I wish you the very best in
your work. Also, thank you for supporting FBI participation in the Presidential Task Force. I realize the
delicacy of the issues, and appreciate how careful your colleagues must be, but I very much want the FBI
included in this work, if that is possible. (The ‘observer’ role will not require the FBI to sign on or
commit to anything, but will give the FBI a place at the table.) I think it's vitally important for
psychologists in the FBI to feel supported by APA, and conversely, for APA to benefit from the richness
and complexity of the Bureau's work. I'm happy to do anything I can to foster this important
relationship.” APA_0027124.
1153 PENS listserv (June 7, 2005).
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Medicine, “Doctors and Interrogators at Guantanamo Bay.”1154 The article detailed purported
violations of medical ethics and mental health professionals who helped break-down detainees in
interrogations. Behnke also remarked that the New York Times would publish another Neil Lewis
article tomorrow and that a Jane Mayer article in the New Yorker would follow two weeks
later.1155
Behnke recommended that the task force invite Bloche and Marks to the PENS
meetings as observers since they were the “most prominent spokespersons” in the “public
arena.”1156
Behnke recalled to Sidley that Moorehead-Slaughter may have rejected the idea of
inviting Bloche before the PENS meetings,1157 but Sidley found no evidence of this assertion. In
fact, Moorehead-Slaughter drafted an email for Behnke to review that indicated her support of
inviting Bloche and Marks on June 22.1158 She later sent this supportive email to the same group
as Behnke’s original email.1159 Gilfoyle raised issues about making sure the two signed a
confidentiality agreement ahead of their potential attendance, though it does not appear she or
anyone from the legal department rejected Behnke’s suggestion.1160 Instead, it appears that
Bloche and Marks were ultimately uninvited after the first day of the task force meeting when
DoD members expressed discomfort with having Bloche attend the meeting. Larry James even
threatened to leave the meeting if Bloche was present.1161 According to Arrigo’s notes from the
PENS meetings, James and Banks criticized Bloche and Marks’s latest article for its accuracy
and publication of John Leso’s name. They worried for Leso and his family’s safety as a
result.1162
Other media reports were released on the eve of the PENS meetings that covered Bloche
and Marks’s New England Journal of Medicine article. For example, the Wall Street Journal
1154 Gregg Bloche & Jonathan Marks, Doctors and Interrogators at Guantanamo Bay, New England
Bloche had sent Behnke an advance copy of the article. See APA_0041245.
1155 APA_0048661.
1156 Id.
1157 Behnke interview (May 29, 2015).
1158 APA_0048630.
1159 APA_0040912.
1160 APA_0048625.
1161 See Arrigo PENS Meetings Notes, available at http://www.ethicalpsychology.org/materials/Arrigo-
PENS-Meeting-Notes-Archived-July-2006.pdf. James and Banks had both expressed discomfort in
talking with Bloche in mid-June after Behnke approached both of them about Bloche’s request to speak
with them. See APA_0048755; APA_0048754.
1162 APA_0048594. Later, Behnke incorrectly told Levant that Leso was not an APA member at the time
and therefore the Ethics Committee could not investigate claims related to him. He later apologized for
this mistake to APA leadership. More on APA’s investigation into Leso’s actions are discussed later in
the report.
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had an article on it on June 231163 and Neil Lewis published an article on June 24.1164 Lewis’s
articles included additional interviews with professional organization representatives, including
Behnke. Behnke noted that the task force was meeting over the coming weekend to address the
issues raised in Lewis’s article.1165
If the issues and abuses at issue were not already clear when
the task force was first created, they certainly were days before the meeting with these various
media reports.
4.
Using “safe, legal, ethical, and effective”
In separate conversations, Behnke impressed upon Moorehead-Slaughter to use Banks’s
framework for the meeting. On June 9, 2005 at 1:48 p.m ET, Behnke sent Moorehead-Slaughter
a note on his preliminary thoughts for a PENS meeting agenda and outline of talking points.1166
Behnke included the following comment about Banks’s approach:
[On what differentiates ethical and non-ethical behavior in national security-related
activities], Morgan Banks offers a very helpful analysis: Illegal vs. legal, and ethical vs.
unethical. As Morgan points out, our focus should be on defining the “box” of legal and
unethical
In terms of an analytic framework, Morgan Banks offers a succinct analysis
(posting 5/19), in which he states that psychologists’ work should be ‘safe, legal, ethical, and
effective.’ In one way of thinking, parcing [sic] each of these four words and applying them to
psychologists' work in this arena is central to the task.1167
Coincidentally, Banks sent Sidley a two-page summary document derived from Banks’s
PPSI that included the words “safe, legal, ethical, and effective” at the top of the page and two
ethical queries.1168
The document’s metadata indicates that it was last saved on June 9, 2005 at
12:58 p.m. ET, less than an hour before Behnke sent his thoughts to Moorehead-Slaughter. The
time stamps suggest that Banks and Behnke may have conferred about these issues before
Behnke sent his message to Moorehead-Slaughter. In interviews with Sidley, Behnke claimed
that Banks’s thoughts were akin to his own analytical approach—what he called a “four-bin
analysis”—and, thus, found it immediately attractive.1169
On June 10, Behnke sent Moorehead-Slaughter a draft set of her opening remarks for the
first day of the PENS meetings.1170 One of Behnke’s notes strongly implied that psychologists
1163 Yochi Dreazen, Report Says Pentagon Violated Medical Ethics at Guantanamo, Wall Street Journal
1164 Neil Lewis, Interrogators Cite Doctors’ Aid at Guantanamo, New York Times (June 24, 2005)
available at
1165 Id.
1166 APA_0027134.
1167 Id. (emphasis added).
1168 Banks “Ethics Examples” document (on file with Sidley).
1169 Behnke interviews (May 22, 2015 & May 29, 2015).
1170 APA_0048793.
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should be involved in these settings and that it would be far worse if these psychologists moved
away from APA:
If psychologists in communities of professionals working in national security-related
areas do not feel that APA is interested in and supportive of their work, they WILL drift away
from APA. That would be bad for those psychologists, and bad for APA, the profession, and the
public. We want to be clear that psychologists who are using the science and practice of
psychology to protect our nation's security have a home at APA, and that APA welcomes and is
grateful for their contributions to the profession and to our nation. APA wants to be a resource
for these psychologists as they struggle with the ethical dimensions of their work.1171
Behnke, Moorehead-Slaughter, and Koocher met in Boston on June 16, 2005 to “think
through some of [the] details concerning how to structure the meeting, as well as some of the
larger questions, such as what the Task Force can reasonably be expected to accomplish with this
meeting.”1172
Thereafter, Behnke drafted an agenda for Moorehead-Slaughter that she sent to the
PENS listserv later on June 16.1173 The agenda stated that the group should plan to have a report
by the end of the weekend. It also stated that the group needed to identify the “bottom line”
issues; the message specifically noted that the group “will especially want to offer as much
guidance as we can to psychologists, particularly young psychologists, both in ethically
ambiguous situations and in situations where it appears that other psychologists may be acting
unethically.” The message also declared that the “safe, legal, ethical, and effective”analytical
framework provided was “a good way of anchoring ourselves in the ‘bottom line’ questions we
need to address.”1174
As is discussed later, however, though touted by Banks as a safeguard that would
somehow ensure the humane treatment of detainees, his framework was flexible and general
enough to allow for subjective judgments to be made, including by people such as Banks who
interpreted the formula to permit stress positions and sleep deprivation in some circumstances.
5.
Shumate’s and Mumford’s messages
On June 20, both Lefever and Shumate offered their first substantive messages on the
listserv.1175
Shumate looked forward to the discussions but cautioned against litigating the past:
I hope I can speak for my colleagues in the Department of Defense that we embrace the
discussions and various viewpoints that will be represented at the table during the next four days.
I look forward to sorting out the ethical guidance that we will recommend to APA while also
being vigilant that we are not there to debate nor confront the past, present nor future policies of
the Administration or the Department. I believe that we can do what is right for psychology
1171 Id.
1172 APA_0039316. Sidley could not locate or collect any notes from this meeting.
1173 APA_0048749; APA_0048750.
1174 Id.; see also PENS listserv (May 16, 2005).
1175 PENS listserv (May 20, 2005).
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while holding reserve on those aspects that we have neither the authority nor the charge to
address.1176
Shumate was also brought up in a separate internal APA conversation with Behnke,
Kelly, and Anton on June 20.1177 Anton requested at some point to compile a glossary of terms
for task force distribution based on a New York Times article that Fein forwarded on the PENS
listserv. But issues arose over defining terms like “coercive” and “torture lite,” which may,
based on the article, include techniques that were legal at the time. Kelly flagged the issue first
and suggested reaching out to Shumate, who “confirmed that the military guys on the task force
would have removed themselves if (currently legal) procedures such as interrogation techniques
were defined as cruel and inhuman and equated with torture.”1178
Also of note, Mumford sent a note to his brother, John, on June 21 where he stated that
the task force was “a complex group of psychologists carefully balanced with equal numbers of
hawks and doves. . . timing couldn't be better as closing Guantanamo Bay seems to be in the
news every day and many of those coming to serve the task force have been there or helped
clean-up after Abu Ghraib.”1179 Mumford told Sidley he believed the task force was balanced
because of the presence of Gelles, a known whistleblower, and James, someone who helped
quell the abuses at Abu Ghraib.1180
D.
Overall Observations
Several issues arise in the April - June 2005 listserv discussions that foreshadow the
issues that arise during after the PENS meetings:
x The behind-the-scenes communications show that Behnke was actively managing the
direction of the discussions on the listserv, in part by drafting emails for the task force
chair (Moorehead-Slaughter), who would then send them to the listserv verbatim, in
which decisions were made or topics suggested. An analysis of her emails on the
listserv shows that virtually all her postings were written by Behnke, which
Moorehead-Slaughter and Behnke conceded to us.
x Banks and Behnke collaborated behind the scenes about the eventual content of the
Task Force’s report, with the result that the key high-level framework set out in the
then-draft DoD policy (written by Banks and Dunivin and later converted almost
verbatim to official DoD policy) regarding the participation of psychologists in
interrogations was (i) proposed by Banks on the listserv as a good framework for the
Task Force, and then (ii) recommended by Behnke (through Moorehead-Slaughter) as
a good framework for the Task Force. The framework—the interrogation practices
1176 Id.
1177 APA_0040991.
1178 Id.; see also APA_0027098.
1179 APA_0029281(ellipsis in original).
1180 Mumford interview (May 18, 2015).
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must be “safe, legal, ethical and effective”—was touted by Banks as a safeguard that
would somehow ensure the humane treatment of detainees, when in reality it was (as
discussed more later) a malleable, very high-level formula that easily allowed for
subjective judgments to be made, including by people such as Banks who interpreted
the formula to permit stress positions and sleep deprivation in some circumstances.
The evidence shows that minutes before Behnke sent Moorehead-Slaughter a draft
email from his computer laying out the argument for this framework (which she
posted verbatim minutes later), Banks had made the final edits on a document on his
computer highlighting some of the same arguments for the framework (a document
that was then likely shared with Behnke). And the framework became one key
portion of the Task Force’s report.
x
The meeting group was expanded in a careful way by adding two “observers” who
were affiliated with the military and intelligence community. After several days of
internal staff consultation and planning about how to add observers to the task force
meeting, Behnke (through Moorehead-Slaughter) posted an email on the listserv
inviting observer recommendations. In a coordinated fashion, APA Practice
Directorate chief Russ Newman was added as an observer, despite Newman’s conflict
of interest because of his marriage to the Army’s lead interrogation-support
psychologist at Guantanamo. Michael Gelles subsequently recommended long-time
CIA contractor/psychologist Melvin Gravitz, and he was quickly “confirmed” by
Moorehead-Slaughter. As discussed later, both Gravitz and Newman spoke during
the meeting in ways that supported the military/DoD psychologists. And Newman
spoke forcefully about the importance of achieving APA’s PR goals in a manner that
was inconsistent with the efforts by some of the non-DoD psychologists to push for
stricter, more specific ethical guidelines.
x
Efforts by Jean Maria Arrigo to set a broad agenda for the discussion and to ask
whether certain assumptions behind the task force were correct (for instance, whether
it was realistic to create a system of enforceable ethical guidelines for psychologists
operating in a classified environment, since enforcement by a professional association
would likely be impossible), were quickly rebuffed by Koocher in aggressive listserv
posts. This was an intentional effort to curb dissent to the frame of reference APA
had already decided upon—that the task force would issue a report at the end of the
three-day meeting that would conclude that psychologists could ethically support
interrogations, thus pleasing DoD, and that would be written in a manner that would
provide APA with a good media statement to respond to the perceived negative press.
x
There were no serious discussions about whether psychologists should be involved in
interrogation settings (Arrigo tried to raise these issues but Koocher rejected most her
contentions); the conversations instead focused on how psychologists could be
involved. With a majority DoD set of members, along with a sympathetic group of
APA leaders at the helm, it appears that there was never any likelihood that APA was
considering barring psychologists entirely from these interrogation settings.
x
DoD members, however, did have differences of opinion on the best use of
psychologists in these settings and whether psychologists could ever play a more
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direct role in interrogations. Several members appear to show an openness to using
the Geneva Conventions as a guiding principle in outlining what psychologists can do
in interrogation settings, though not necessarily as an ethical requirement as seen
during the PENS meetings.
III.
PENS MEETINGS AND REPORT
The PENS meetings took place on June 24 - June 26, 2005. Task force members initially
met for dinner the evening of June 23. A typed copy of Arrigo’s notes from the meetings
document her impression of the discussions from these in-person meetings. Both the PENS
listserv and a transcribed version of Arrigo’s notes have been publically available, along with the
PENS report itself. In addition, Sidley reviewed contemporaneous notes from Behnke, Susan
Brandon, and an assortment of other task force members from the PENS meetings.1181 We also
interviewed every member of the task force and and nearly every observer.
The veracity of Arrigo’s set of notes have been questioned by some. But this report can
confirm that Arrigo’s notes provide the most complete picture of what occurred during the
meetings. For one, Arrigo provided us with the contemporaneous, handwritten notes she took
during the PENS meetings, which align with what was transcribed in the typed version of her
notes. In addition, the notes that Behnke and Brandon took on conversations during the meetings
are reflected in Arrigo’s notes, which indicate a consistency and accuracy across all sets of notes.
And every interviewee associated with the PENS process who had seen Arrigo’s notes believed
it plausible that the notes captured much of the discussions over the weekend of meetings. All
sets of notes from Arrigo, Behnke, and Brandon are appended to this report. The following
subsections highlighting noteworthy comments during the in-person meetings rely primarily on
Arrigo’s notes from these meetings and interviews with Sidley.
A.
Overall Impressions of Task Force Members
1.
DoD Task Force members
Of the six DoD task force members, Banks and Scott Shumate appeared to have the most
prominent positions within DoD. And Banks, far more than Shumate it appears, worked
integrally on interrogation support issues. As Command Psychologist for the Army Special
Operations Command and the senior Army SERE psychologist, Banks worked closely with and
was involved with the Army psychologists at Guantanamo Bay and elsewhere who supported
interrogations, including Dunivin. Banks came into the task force with a concrete idea of what
the task force report should say and should not say, as he and Dunivin had already drafted what
would become Army (and therefore DoD) policy regarding the details and limitations on using
psychologists in interrogations, a confidential internal Army document that he distributed at the
meeting.
1181 APA_0232118; APA_00017705 (Behnke’s typed and handwritten notes); Brandon Notes (June 24-
25, 2005) (on file with Sidley); HC00017712; HC00017725 (various handwritten notes from task force
members);
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The evidence shows that at the meeting, Banks was “persistent” about his agenda, in the
words of a DoD task force member. His agenda was, according to the same DoD task force
member, to get APA’s “good housekeeping” seal of approval for the involvement of
psychologists in interrogations and to otherwise keep the status quo and to avoid limits or
constraints beyond the ones the Army or DoD had in place or would decide to put in place in the
future. Another DoD task force member commented that Banks spoke out of “both sides of his
mouth” in pushing his agenda but also appearing amenable to the non-DoD members’ concerns.
According to at least one DoD task force member, Banks told task force members that he
had consulted with his generals within his U.S. Army Special Operations Command and had
already come to an agreement with his leaders that the “safe, legal, ethical, and effective”
framework was the appropriate way forward. It is also likely that, while not directly in other
command structures, Banks may have consulted with, or at least was aware of, other “army
stakeholders”1182 and their views on interrogation policy. These would likely include consulting
with commanding generals of U.S. Special Operations Command and the Army Medical
Command (the Army Surgeon General), and perhaps the Joint Task Force - Guantanamo, and
the U.S. Southern Command. The evidence shows that that Army Surgeon General’s Office was
in fact in the midst of developing DoD policy on this issue and that Banks, Dunivin, and others
were helping craft its policy. Banks’s role on the task force, then, was not driven solely by him
but educated by various command structures’ needs on the issue.
Banks said and gave the impression that he did not want other DoD members to deviate
from the direction he was pursuing. For most of the DoD members, this was either
unobjectionable or in line with what they wanted to achieve. Gelles and James both believed
psychologists should continue to be involved as consultants in interrogations, and at the time this
remained a significant part of Gelles’s job as a criminal investigator with NCIS. And both
indicated in the meeting, in different ways, that a high-level report would probably be preferable
to a more specifically-defined one. Fein, a DoD contractor within Shumate’s unit, did not say as
much but deferred to the positions of the actual DoD officials.
Shumate made it clear he was uncomfortable with public disclosure of specific examples
that might provide further guidance, thought “coercive” was too broad a word to be used in this
context, and may have wanted to manage the task force’s public message by using words that
softened the reality of the pressure DoD psychologists faced to help produce actionable
intelligence. He informed Sidley that he briefed the head of CIFA after the report was finalized
and believed that the report was “briefed up” at least within his chain of command, which would
have included the head of CIFA, followed by the Deputy Under Secretary of Defense for
Counterintelligence and Security, and then the Under Secretary of Defense for Intelligence. It is
not clear, however, whether the report was briefed all the way to the Intelligence Undersecretary.
Shumate also met with William Winkenwerder, then-Assistant Secretary of Defense for Health
Affairs, and briefed him on the report’s findings ahead of its release.1183 Shumate explained that
1182 The term was used by Bruce Crow, then-Consultant to the Army Surgeon General’s Office. He
believed that Banks was attuned to various command structures’ concerns and brought them to bear as
he, along with Dunivin, spearheaded BSCT policy with the Army Surgeon General’s office. Crow
interview (June 22, 2015).
1183 APA_0026757.
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while the military side of DoD had a “tremendous interest” in the PENS report, the civilian side
that he was apart of thought the report was a “positive” development but not an “essential” one
for their needs.1184
2.
Non-DoD Task Force members
There were two very strong pushes by Wessells during the meeting that—if accepted—
would have created a report with tighter, more specific ethical constraints on national security
psychologists involved in interrogations, in ways that would have been inconsistent with the
strong preferences of Banks and key parts of DoD. The first, an attempt to use the provisions of
the Geneva Conventions or other common international law sources to define the high-level
terms being discussed at the meeting, was joined strongly by Arrigo and Thomas. This was
rejected by the other members of the task force, and therefore in the Behnke-drafted task force
report. The second was a subsequent attempt to create specificity within the document in other
ways, by discussing where to draw the line between permissible and impermissible interrogation
techniques a psychologist could be involved in (either based on a discussion of some of the most
significant techniques being discussed publicly, or a description related to “psychological
distress”).
Thus, two pushes for ethics positions that would have made the Task Force report a very
different document were explicitly made and were rejected by the DoD task force members and
the APA task force leadership. The three non-DoD members acknowledge that if they had
firmly and officially dissented and refused to accept the task force report, this might have made a
difference. And in fact, Behnke and other APA leaders consistently offer the final sign-off on
the report of the three non-DoD members as proof that the document does not merely reflect a
pro-DoD position.
These three task force members clearly came to regret going along with the document at
the end of the meeting, and insist that their failure to issue a final and overall dissent should not
be taken as approval of APA’s claim (made one day after the Task Force report was made
public) that the report set out “strict ethical boundaries,”1185 since they had been told that APA
only considered the report a first step and that the actual “boundaries” would be set out in a
follow-up casebook. For Wessells in particular, and for Arrigo as well, the explicit promise that
the report was simply an interim step to be quickly followed by a more thorough set of specific
guidelines was crucial to their agreeing to sign off on the report. Wessells clearly felt duped
when he was told six months later that nothing had been done on the casebook, and he resigned
from the task force thereafter (discussed more later).
Arrigo and Thomas also cited a feeling of intense group pressure from the much larger
group of DoD task force members and APA leaders (all men, they point out) to go along at the
end, in order to enable APA to make a clear and positive public statement, including that APA
was against torture. As psychologists, they all cite the “groupthink” psychological phenomenon
as something that may have been a factor in their going along at the end, in addition to their
1184 Shumate interview (June 24, 2015).
1185 APA_0040304.
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belief that this was not—and would not be portrayed by APA—as a final, strong set of “strict
ethical guidelines.” Many observers from inside and outside DoD observed for us that there was
a real “us versus them” split in the room, between DoD and non-DoD task force members, and
that all the DoD members except for Banks sat on one side of the table, across from the non-DoD
members.1186
Adding to this dynamic was the participation of Koocher on the first day and Newman
throughout the meeting, both of whom spoke up forcefully in opposition to some of the key
points of the non-DoD task force members.1187 Banks and the DoD task force members had
allies in Koocher, Newman, and Behnke who not only agreed with the strategy of deferring to
DoD’s preferences, but who also strongly cared about (and, especially as to Newman and
Behnke, articulated during the meeting) the goal of ensuring that the result at the end of the
meeting was a document that APA could use for positive PR purposes, that “calm[ed] the
issues,” avoided “rekindling the fires,” and “clarified” and “simplified” because the press
accounts had “messed up the message.” In their vie, APA needed a clear, straightforward, public
statement—without delay—that would solve the PR problem by portraying APA as a
professional association that was taking to action to set ethical guidelines rather than sitting on
the sidelines, while keeping DoD psychologists as involved and unconstrained as possible.
Based on what we have seen in our investigation, we agree with the three contributing
non-DoD task force members that it is unfair for defenders of the APA task force report to use
their end-of-report approval as evidence that the report simply reflects the consensus of a diverse
task force rather than an intentional pro-DoD approach. The behind-the-scenes evidence
squarely contradicts this, and a proper reading of the meeting proceedings is inconsistent with
this as well.
1186 Brandon’s notes bear this dynamic out. At one point, she noted that, “paternalism is only increasing”
within the DoD member comments and cited how Shumate kept using terms like “us” and “our” when
discussing the government’s position. Brandon Notes (June 24-25, 2005) (on file with Sidley); Brandon
interview (May 26, 2015).
1187 Koocher’s aggressive style of going on the attack against the non-DoD task force members continued
after the meeting, when he attacked Wessells’s resignation as meaningless because the task force no
longer existed, a highly disingenuous comment since Wessells’ resignation came in reaction to an email
to the task force from its chair stating that the task force’s work continued because it would be asked to
help consult regarding the potential “casebook.” In his criticism of Wessells, Koocher also called the
head of the rival American Psychiatric Association “an idiot full of sound and fury” (quoting
Shakespeare), and months later attacked Arrigo for her personal biases that she had revealed at the
beginning of the task force meeting about how her father had been involved in torture with the CIA’s
predecessor agency, the OSS. PENS listserv (Jan. 15, 2006); APA_0095571. Newman was known as a
“bulldog,” in the words of his former APA colleagues, and he told us that when he spoke up at the task
force meeting, he was doing so with the clear purpose of trying to strongly influence the outcome.
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B.
Day One: June 24, 2005
1.
Day one conversations
The topics discussed on the first part of the first day permeated the entire weekend of
conversations at the PENS meetings.1188 Some observations and commentary from the sequence
of early conversations are listed below:
x
Moorehead-Slaughter’s opening remarks noted that investigating past actions were
the domain of the Ethics Committee, not the task force. Instead, Moorehead-
Slaughter underscored the need to provide guidance to psychologists.
x
There was no indication from PENS participants that Moorehead-Slaughter played a
leading role during any of the task force discussions. She was viewed as a
figurehead by most everyone in the room, and multiple participants commented on
how unfamiliar she was with the subject matter. It appears that Moorehead-
Slaughter’s predominant role was that of facilitator (and Behnke’s agent as previously
discussed) , though even that role was appropriated by others in the room like
Newman. By all accounts, Moorehead-Slaughter’s weak leadership stimulated the
ability of other voices and views to dominate the conversation and led to the PENS
report being, as Lefever put it, “not [a] very good product.”1189
x
Soon thereafter, the DoD members, especially James, protested the idea of Bloche
joining the PENS meetings. James went so far as to refuse being in the same room as
Bloche. Banks noted that publishing John Leso’s name in Bloche and Marks’s latest
article endangered Leso’s life.
o Of note, James told Sidley that he consulted with his chain of command
before PENS to make sure that they were aware of his participation and that
they had no issues. He specifically consulted with his two Navy clinical
supervisors at his hospital, Walter Reed Medical Center, and made sure he
“wasn’t saying anything out of line.”1190 He also discussed the issue with
Navy attorneys at one point, among other topics. James said the two take
away messages from these chain of command conversations were (1) to
ensure that psychologists kept their presence in detention settings, and (2) to
inform DoD on how to conduct interrogations safely and ethically.1191
x
Early on, Thomas noted the need to take culture and ethnicity into account with
interrogating detainees of various backgrounds. These considerations were included
in later drafts of the PENS report.
1188 All notes come from Arrigo PENS Meetings Notes (June 24, 2005) unless otherwise noted.
1189 Lefever interview (May 3, 2015).
1190 James interview (May 1, 2015).
1191 Id.
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x
Lefever made clear that his oath was to the United States and that U.S. law and
community standards were his guidepost in determining what were acceptable
practices. He defended the merits of certain harsher interrogation techniques and
noted that he thought it was useful to think of DoD ethics and APA ethics as a Venn
diagram and finding areas where the ethics overlapped and where they did not.
o
Though his ultimate views on which tactics were permissible may have been
in the minority,1192 Lefever appeared ready to discuss the ethical nature of
various interrogation techniques. He later told Sidley that he welcomed
having conversations on the specific interrogation techniques but believed
there were multiple agendas/biases present during the meeting: (1) the stated
agenda, which was to see if the ethics code adequately addressed the issues
facing psychologists in interrogation settings; (2) the agenda of peace
psychologists and “pacifists,” as he called them, who likely did not want
psychologists in these locations at all (or did not wish to commit to a specified
list of techniques for fear of excluding others); and (3) the agenda of Morgan
Banks, who strove to keep psychologists in these settings and grounded the
discussion with his general phraseology of “safe, legal, ethical, effective,” and
who had little desire to discuss specifics.1193
Lefever also noted that he got
the “distinct impression” at one of the PENS dinners with task force members
that Banks did not want to deviate from this phraseology in the PENS report.
He also believed there was a general “fear” among other DoD members about
addressing the issues in a concrete way so, instead, they wanted to “vote and
get out.”1194
o
Of note, Wessells and Lefever both appeared to arrive to the PENS meetings
with honest but differing philosophical views of what to accomplish.
Wessells’s approach was more absolute and posited that certain actions and
techniques were wrong under any circumstances. As such, the ethics code
should reflect these right and wrong actions. He rejected a relativistic view of
ethics and preferred to ground the debate in international legal principles that
could serve as a lodestar to determine which behaviors were permissible.
Lefever, on the other hand, believed there was a difference between
techniques that caused pain (which were short-term and ethical) and those
caused harm (which were long-term and unethical), and wished to explore this
difference during the meeting. He also believed that determining what was
ethical was based on community standards. So if a technique was deemed
1192 Lefever made comments throughout the meeting about how a certain amount of pain or stress might
be ethical, but others did not appear to vocalize support for these positions. Lefever explained to Sidley
that there was a difference to him between causing pain to someone (which could be ethical) and causing
harm (which would be unethical), and the line between the two was the conversation that should have
occurred during the PENS meetings. But it never did, as Lefever noted. Lefever interview (May 3,
2015).
1193 Id.
1194 Id.
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acceptable by the community, then it was ethical. Lefever explained that the
ethical question was a separate inquiry from whether a technique was moral.
Under this framework, there could be techniques that were ethical but
immoral. Despite their vastly opposing views on ethics and morality, both
agreed that the foundational question of the task force was to identify which
techniques were permitted and which ones were not. And both were deeply
criticized the final product of the task force for not answering this key
question. Lefever called the report “not defined” and “loose,” while Wessells
described the process as an “absolute farce.”1195
x
Banks disagreed with Lefever’s Venn diagram approach and argued that all illegal
behavior was already proscribed. The key question for Banks, as he also noted in his
first May 11 message on the listserv, was determining what legal behaviors were
ethical and then providing guidance for those behaviors.1196 Bank’s draft PPSI also
included the point that the “Ethics Code is always subordinate to the law and
regulations.”1197
o Banks’s approach, as critics have pointed out, appears to have changed the
understanding of APA Standard 1.02 at the time. The language in the rule
stated a psychologist “may” follow the law if a conflict is unresolvable
between the law and the ethical code. Banks raised this point earlier on the
listserv to explore techniques that were legal but possibly unethical, but did
not appear to pursue this line of inquiry during the meetings.
x
Shumate made comments that suggested specific guidance was needed for
psychologists (Arrigo’s notes : “provide structure, guidance. Embrace this as an
opportunity.”). He also appeared to be mindful of how to message certain issues,
such as when he disagreed with Lefever about whether psychologists face “pressures”
and preferred to use the term “encounter conflicts.” He was also skeptical that a
subsequent casebook would be feasible; he repeated this concern on the second day of
meetings.
o Shumate explained to Sidley that his comment about guidance reflected a
general belief that in any situation, particularly one where there was a great
deal of stress involved, it was important to have guidance in place. But
Shumate clarified that he did not believe the PENS Task Force should have
undertaken a deep dive into specific techniques that were permissible or not.
Instead, he desired that more research was conducted in this field to determine
what types of techniques and interrogation strategies were effective.1198
1195 Wessells interviews (March 11, 2015 & June 15, 2015); Lefever interview (May 3, 2015).
1196 PENS listserv (May 11, 2005).
1197 HC00008914.
1198 Shumate interview (June 24, 2015).
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o Shumate’s skepticism on providing real-life examples foreshadowed his
position in 2006 that the task force not lead the casebook process, as discussed
later (exerpt from Arrigo’s notes: “Getting publishable examples will be
awful. No useful product
maybe APA can generate it. DoD psychologists
can’t.”). Shumate told Sidley that he thought the casebook would have been
an “immensely large” undertaking and lead to logistical issues with classified
information and DoD review. On the second day, Arrigo’s notes indicate that
Shumate stated he “thought that examples would alarm [people about the use
of] psychological science.” Shumate explained to Sidley that the comment
referred to the public’s misgivings about anything involving the word
“interrogation.”1199
This point does not appear credible given that the notes
talk about “alarm” and not misperceptions. It is more likely that Shumate
believed that there would be a public outcry over actual examples and
interrogation techniques used at the time.
x
Gelles harped on the point that psychologists should only assist in obtaining
information but never in conducting the interrogation.
x
Newman, in his role as observer and as head of the Practice Directorate, asserted
points that related more to the growth and protection of the profession as opposed to
the ethical consideration.
(ex: Arrigo’s notes : “The profession will never advance if
we don’t apply the profession to new areas;” “The message that goes to our own field
can reflect the complexity. The message that goes to the public cannot reflect the
complexity;” “Should say what is being done that is appropriate. Got to clarify that
psychologists are not engaged in inappropriate behavior on the whole.”)
o Newman led much of the task force discussions throughout the weekend. He
often appeared to limit discussion on issues outside the perceived scope of the
task force’s mandate. He also openly discussed the political considerations of
the report. Newman told Sidley that he believed that Arrigo’s notes on what
he said during the meetings were “not inaccurate.”1200 Arrigo attributed lines
to him about “dampening the fires” and Newman agreed that he could have
made that comment in the public relations context of the discussion. He did
believe the message to the public should be simple and direct. Other
observers in the room, in contrast with Newman, were instructed not to speak
during the meeting. Brandon recalled that either Behnke or Mumford had
informed that she could not offer comments during the meeting.1201
o Newman agreed that he was a regular contributor during the PENS meetings
and that, as general practice in all of his interactions with people, he tried to
“speak with influence.” A goal of his was to assure that the practices at issue
would be “allowed to continue” within APA ethical framework. Newman
1199 Id.
1200 Newman interview (Apr. 29, 2015).
1201 Brandon interview (May 26, 2015).
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insisted, however, that he would have deferred to the task force members or
the Ethics Committee if they had determined that the interrogation practices
were unethical.1202
His role as the head of the Practice Directorate, what
many within APA describe as the largest and most important Directorate
within APA, only served to amplify Newman’s voice.
o Newman also told Sidley that, as head of the Practice Directorate, the image
of the psychological profession was important to him, and he worked “as
much as anybody” about the perception issues that APA had to manage both
internally and externally with any public pronouncements.1203
x
After a recess, Moorehead-Slaughter opened the discussion by stating that “safe,
legal, ethical, and effective” was a key analytical framework. The phrase had not
been mentioned during the meeting until this time, though it had been used by Banks
on the listserv before. And Behnke told Moorehead-Slaughter earlier over email, as
discussed above, that the phraseology would be the analytical framework to use.
x
Two DoD members, Gelles and Lefever, both told Sidley that they were not
impressed with Banks’s analytical framework. Gelles commented that it sounded
“cliché-ish” and that he did not understand what “safe” or “effective” meant.1204
Lefever did not think there was any research to show that psychologists could make
interrogations fully “safe, legal, ethical, and effective.” Lefever described that he
went along with the phraseology once it was clear to him that the meetings were not
going to delve into the specific techniques and philosophical issues at play during
interrogations.1205
x
Behnke, like Newman, also raised public relations-related considerations (ex:
Arrigo’s notes: “How repetition in the press messes up message. Clarify. Simplify;”
“Certain words very evocative: explicit, manipulate, interrogate.”).
x
After Behnke’s comments, Fein, James, and Shumate all offered thoughts that
suggested they wanted the report to stay at a more general level. For example, Fein
noted how “No one can define ‘torture,’ ” and James added that the group should “lay
out basic principles, worry about definition later.” Shumate also appeared to ask for
latitude on what techniques to use until additional research was done: “We don’t truly
know what is effective or not effective. It’s an empirical matter what works. Don’t
rule out until we know.”
x
The group engaged in an ethical debate about dual roles soon after Behnke’s
comments. The PENS report ultimately rejected dual roles for psychologists (i.e., a
1202 Newman interview (Apr. 29, 2015).
1203 Id.
1204 Gelles interview (May 27, 2015).
1205 Lefever interview (May 3, 2015).
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psychologist who may act as both an interrogation consultant and mental health
professional for a detainee).
After lunch on the first day, Behnke released a one-page first draft of the PENS report for
review.1206
The draft statement contained nine statements, not all of which were discussed in the
morning meeting. The first statement noted that psychologists’ “central role” was to “ensure that
all processes are safe, legal, and ethical for all participants in the process.”1207
The first draft
stated that psychologists “do not condone or participate in torture” but did not list cruel,
inhumane, or degrading treatment (this language was included in the third draft of the report). In
an interview with Sidley, Behnke did not recall whether he outlined any of these statements
before the meeting but noted that he was sitting at his computer taking notes the first day.1208
Koocher told Sidley that he believed Behnke had created a report template before the task force
met but was unsure of the details.1209 Additional discussions arose from Behnke’s draft,
including the issue of when one could use medical records and clarifying the roles of the
psychologist.
The night of the first day’s meeting and before the task force dinner, Behnke sent a
partially revised draft report for Gilfoyle’s review.1210
Gilfoyle suggested adding language from
(presumably) Banks’s PPSI, listing possible activities for psychologists in interrogation settings
as well as adding the word “effective” to the “safe, legal, and ethical” phrase in Behnke’s
draft.1211
She noted that Behnke had a “problem” with the word “effective,” but could not recall
what she was referring to in her interview with Sidley.1212
2.
International law
Starting on the first day, Wessells engaged with several DoD members and Koocher on
the need for incorporating international human rights standards into the group’s ethical
understandings. Thomas and Arrigo also subscribed to Wessells positions.1213 Wessells noted
his discomfort with not mentioning human rights standards in their analysis, particularly
Common Article 3 of the Geneva Conventions.1214 He bluntly stated that the United States threw
1206 HC00008928.
1207 Id.
1208 Behnke interviews (May 22, 2015 & May 29, 2015).
1209 Koocher interview (March 20, 2015).
1210 APA_0040831.
1211 Id.
1212 Gilfoyle interview (May 20, 2015).
1213 Arrigo PENS Meeting Notes (June 24, 2005).
1214 Common Article 3 provides that detainees shall be “treated humanely” and that therefore “violence to
life and person, in particular . . . cruel treatment and torture,” and “outages upon person dignity, in
particular humiliating and degrading treatment” were prohibited. The United Nations Convention
Against Torture defines “torture” as an act that intentionally inflicts “severe [physical or mental] pain or
suffering” on someone for one of several purposes, including obtaining information or a confession,
punishing him, or intimidating or coercing him or a third person. Customary international human rights
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out human rights issues when it was inconvenient for their efforts, and that human rights
organizations had declared that current U.S. interpretations of international laws were wrong. As
Arrigo put in her notes on Wessells’s comments:
What kind of damage [will be done] to APA if we say we do not support human
rights as defined in the Geneva Conventions and other conventions? What about
[the] damage to our national security? If we engage in human rights violations,
the message that sends to other countries [is damaging to our national security].
They therefore become our enemies and attack
The standards [on
international human rights] are not an issue for debate at this point. . . [The] APA
Code commits us to human rights. Does American law trump international law?
As a professional society, do we have commitments in [the] human rights
direction? If we aspire to these things, can we throw international human rights
away? APA is diverse but the diversity is not represented here
We would
damage ourselves as an association if we support American law when it
contradicts international law. DoD has defined a set of standards not congruent
with international law. If we endorse that, we damage our credibility
As a
professional association, at a moment of national panic, [we must] take a high
standard.1215
Ultimately, the PENS report included language that did not ethically bind psychologists
by human rights standards, but did state that psychologists should review the Geneva Convention
Relative to the Treatment of Prisoners of War and the U.N. Convention Against Torture since
they were “fundamental to the treatment of individuals.”1216
Wessells told Sidley that he pressed his point several times to add binding language from
the Geneva Conventions and the U.N. Convention Against Torture but that it was a “complete
loser” with the DoD people in the room. He noted that the DoD members were “passionate”
about upholding the existing military regulations at the time, which permitted what he called
“torture-lite.”1217
He later bemoaned that “once ethics becomes the handmaiden of patriotism,”
you were not talking about ethics anymore and, instead, were allowing ethics to be “appropriated
by these other concerns.”1218
Incorporating international law into the PENS report was one of the most contentious
issues over the meeting period. While several DoD PENS members expressed an openness to
abide by the Geneva Conventions or the U.N. Convention Against Torture, none appeared
law, as defined by the International Committee on the Red Cross, defines “inhuman treatment” the same
way as this definition of “torture” but without the specific-purpose requirement, and defines “degrading
treatment” as acts that humiliate, degrade, or otherwise violated the person’s dignity.
1215 Arrigo PENS Meeting Notes (June 24, 2005).
1216 PENS Report.
1217 Wessells interview (March 11, 2015).
1218 Id.
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comfortable mandating that psychologists in detainee interrogation settings follow them at all
times. Several of these members said they, or their DoD colleagues, could not accept a position
that varied from the requirements of U.S. law. In other words, as DoD officials they could not
agree to be bound by constraints on their behavior that went beyond the constraints set by U.S.
law. The DoD members gave various reasons for their stance to Sidley, as discussed below.
x
Gelles told Sidley that adding the Geneva Conventions language was moot since his
team at NCIS was already “doing the right things.” But he expressed that adding
such language could “tie up the Army and military guys.” Gelles recalled that no one
in the military asked him to explicitly lobby against using international law, but
Gelles remembered that people informally said “we have to make sure this doesn’t
happen,” referring to adding human rights standards. He was fairly certain that the
“military guys” were advocating this position, not Fein, Gravitz, or Shumate. He also
recalled phrases from members about how adding international legal standards would
present a “serious obstacle” to efforts during wartime (and where the Geneva
Conventions may not apply).1219 Gelles surmised that the military members wanted
to incorporate as much of Banks’s PPSI into the report so that they could “protect
themselves” and quell any conflicts between military policy and APA ethical
pronouncements. Gelles went along with the approach since, according to him, it did
not impact his work and because he believed the report was an interim step in a
longer process.1220
x
Banks explained that inserting international human rights language into the PENS
report could have created a “break” between a military officer’s oath of office, which
included a promise to follow U.S. law, and the APA’s Ethics Code, which could lead
to a dilemma where an officer would have to break their oath (and possibly the law)
or break their ethical duties. Banks stated that U.S. law already incorporated the
Geneva Conventions, so it was unnecessary to specify abiding by the international
law. Banks acknowledged that there was a debate about whether the Geneva
Conventions applied to detainees at the time, and that the definition of torture was
interpreted narrowly by the Department of Justice. The solution to this issue,
according to Banks, was the addition of the “cruel, inhuman, and degrading
treatment” language in the PENS report, which would have encompassed techniques
that were not considered torture but were still problematic.1221 Those terms or
techniques were not defined in the report, however, as discussed further below.
x
James noted during the PENS meetings that he had no problem abiding by the
Geneva Conventions. He remarked to Sidley, however, that psychologists from other
agencies, such as the CIA, would have run afoul of these standards if they were
mandated in the PENS report. While James disagreed with the CIA’s approach to
1219 Gelles interview (Apr. 15, 2015).
1220 Gelles interview (May 27, 2015).
1221 Banks interview (May 21, 2015).
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interrogations, he told Sidley that he did want the report to be used as a “whipping
tool” to go after these psychologists.1222
x
Fein said that he was not as familiar with the interplay between the various legal
standards discussed at the time of the PENS meeting. To him, the military members’
point that the U.S. Constitution was the guiding principle for the military made sense
at that time. In retrospect, he stated that the report would have been better served if
there was more specific information about issues of coercion.1223
x
Shumate told Sidley that it would be a “huge issue” if the task force had inserted
international law into the report, and that he was most comfortable with following the
laws of the United States. He expressed that, practically, if the group decided to
follow certain international legal principles, then progress on the report would have
been “encumber[ed]” with discussions about these details. Shumate made comments
throughout the meetings that suggested he could not take a public stand as a senior
DoD official that was viewed as contrary to U.S. law, but he denied to Sidley that this
was a consideration for him.1224
x
Lefever rejected the utility of international human rights standards in the document.
He welcomed a discussion into which specific techniques were permissible but
wished to follow U.S. law alone, especially as human rights standards were often
hypocritically espoused by the most oppressive of nations. He did not wish to open
that “can of worms.”1225
While these positions may have been understandable as a statement of U.S. governmental
policy, Koocher also attacked the idea of the APA tapping into international law definitions in
crafting ethical guidance, calling it a “distraction to draw international law” into APA’s ethics
guidance.1226
As one DoD task force member described it, and others suggested as well,
Koocher took a very “pro-America” stance throughout the PENS process. The report thus
rejected the use of or reference to international law, except to the extent it was incorporated into
and consistent with U.S. law (as then defined, including through the OLC memos)
But these hesitations to use international law in the report ignored the alternative ways
that the report could have embraced standards from international laws without fully adopting that
international instrument. For example, instead of having a report that stated that psychologists
had to abide by all of the provisions of the Geneva Conventions, some of which may not
recognized by the United States,1227 the task force could have specified which Geneva
1222 James interview (June 1, 2015).
1223 Fein interview (May 11, 2015).
1224 Shumate interview (June 24, 2015).
1225 Lefever interview (May 3, 2015).
1226 Arrigo PENS Meeting Notes (June 24, 2015).
1227 Banks shared with Sidley how the United States does not recognize Protocol I to the Geneva
Conventions, which relates to the protection of victims in international armed conflicts. If an ethical
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Conventions applied—in this case, the Third Geneva Convention related the treatment of
prisoners of war, which the United States recognizes.1228 If this was still problematic given the
uncertain nature of detainees’ legal status, the task force could have adopted language from the
Geneva Conventions without formally approving any portion of the instrument. Article 17 of the
Third Geneva Convention, for example, provides readily-adaptable language on the parameters
for questioning prisoners.1229
The reference to the international law would have been a stronger
touchstone for the report, as opposed to U.S. law or military directives that could have been (and
were) trumped by pronouncements from the OLC or the Secretary of Defense.
Some say that this observation about avoiding international law shows the automatic
impact that selecting a majority of DoD officials had on the task force’s conclusion. But we
think that it actually shows an even more intentional decision by the APA task force leaders and
the DoD psychologists not to voluntarily commit psychology as a profession to a more robust set
of ethical limitations. To do so would have shown leadership on the issue in a way that likely
would have put APA at odds with DoD and the Administration. This may have caused a conflict
that would have resulted in DoD employing fewer psychologists or to writing policy that
subordinated the role of psychologists in interrogation and detention matters; and it may have
prompted some DoD psychologists to leave APA membership (although Banks was already
outside of APA membership).
But sometimes leadership in this manner causes external change rather than just conflict.
Thus, taking this direction (especially if the other leading health-care professional associations
also took ethical positions that were less accepting of the Administration’s position, as they
ultimately did) may have caused, or placed pressure on, DoD or the Administration to change its
position regarding the use of international-law definitions in these circumstances. By going
along with the “simply follow U.S. law” position of the DoD task force members, the APA task
force leadership was making an explicit choice to follow what DoD wanted rather than making
an independent decision about what were the appropriate ethical rules for psychologists in these
situations (other than the decision that was best for DoD was best for APA).
pronouncement stated to abide by the “Geneva Conventions,” then, Banks worried that military
psychologists would have to violate their oath and U.S. law. See Email from Banks to Sidley (June 18,
2015). For more on the Protocol, see https://www.icrc.org/ihl/INTRO/470. While the United States was
a signatory to the treaty, it has never ratified the protocol into law.
1228 Article 3 - Conflicts Not of an International Character, Geneva Convention (III) (Aug. 12, 1949),
1229 Article 17 - Questioning of Prisoners, Geneva Convention (III) (Aug. 12, 1949), available at
https://www.icrc.org/ihl/WebART/375-590022?OpenDocument (“No physical or mental torture, nor any
other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind
whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any
unpleasant or disadvantageous treatment of any kind.”).
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3.
Confidentiality of meetings
The most tense portion of the first day came at the end of the meeting when the topic of
confidentiality arose. Anton first raised the point during the meeting, to which Moorehead-
Slaughter replied that all conversations must stay in the room and not discussed outside.1230
Arrigo noted that she complained about the “secrecy” at the time. Newman added that keeping
discussions confidential was advisable since they were dealing with a controversial topic and
conversations or varying views about it could “ignite the fire instead of dampen it.”1231 Lefever
proposed discussing the issues back to his “community,” but multiple people rejected his
proposal. Breckler resolved that, given the “potential for varying interpretations,” the PENS
report should speak in a “single voice,” otherwise there would be many different versions.1232
Ultimately, a vote was taken and all members, save for Arrigo who dissented and Wessells who
abstained, agreed to keep discussions confidential.
Shumate also demanded that Arrigo stop taking notes during these conversations. Gelles
relayed to Sidley that the Arrigo episode the first day contributed to an “us versus them”
mentality between the DoD and non-DoD members.1233 Arrigo told Sidley that she was “so
upset” after the first day of meetings.1234
Her remaining notes from the meetings were largely
taken on the margins of various PENS draft reports and are not as complete as her notes from the
first day of discussions.
It appears, however,the “no taking notes” policy was unevenly enforced. For example,
Susan Brandon, an observer in the room the first two days of the PENS meetings, was never
instructed to cease her note-taking according to her interview with Sidley.1235 Thomas recalled
to Sidley that note-taking was not explicitly disallowed.1236 But she posited that the group may
have had to leave their notes in the room during the meetings.1237
Anton later emailed Koocher with an update on the group from day one (Koocher left the
proceedings by lunch time due to a family emergency and was not in attendance the rest of
Friday afternoon or Saturday).1238 Anton remarked that the “DoD folks” offered useful insights
1230 Arrigo’s PENS Meetings Notes (June 24, 2005).
1231 Id.
1232 Id.
1233 Gelles interview (May 27, 2015).
1234 Arrigo interview (Apr. 27, 2015).
1235 Brandon interview (May 26, 2015). Sidley received varying accounts of whether other votes were
taken during the meetings. There was some belief that votes were taken on whether note-taking was
allowed and another vote on whether international human rights standards should apply in the document.
Sidley has been unable to corroborate with any certainty that either of these two votes formally took
place.
1236 Thomas interview (Feb. 13, 2015).
1237 Email from Thomas to Sidley (May 25, 2015).
1238 APA_0040795.
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during the meeting that illustrated how “complicated” these issues were.1239 He also described
the afternoon’s confidentiality discussion as Arrigo was “taking copious notes.”1240 He added
that Shumate and others felt “uncomfortable” with her note-taking and that the group, by “split
vote,” agreed to keep all meeting matters confidential and have the report speak for the group.
Koocher responded to Anton, copying Behnke, that he, too, “felt concerned” about Arrigo’s
note-taking.1241
He suggested that it be made clear that the task force conclusions “should be
reached by consensus,” and that no communications during the meeting “be cited for attribution
UNLESS there is unanimous agreement and these appear in the approved report.”1242
It should be noted that APA’s policies on the closed sessions were addressed in an
internal February 3, 2003 memorandum from Norman Anderson, which outlined the limited
circumstances where closed sessions were permissible for “personnel issues”:
As a general principle, the meetings of APA groups are open to any APA
member and APA staff. Occasionally, during board, committee and task force
meetings, sensitive matters must be discussed. Requiring that all meetings be
open at all times could inhibit full and frank discussion. However, in order to
respect the free and open flow of information within the association and to reduce
the appearance of “secret decisions,” closed meetings should be as infrequent as
possible and primarily limited to personnel issues or issues that might cause
personal embarrassment to the individual being discussed. Some of the work of a
few groups such as the Ethics Committee and the Committee on Accreditation
involves information of an inherently confidential nature about individuals or
institutions and their meetings are restricted pursuant to adopted rules or
procedures.1243
Allowing a limited number of observers for an APA task force, all of whom
were pre-approved to attend, may not comply with the spirit of the February 2003
guidance. Gilfoyle defended the PENS meeting structure.1244 She stated the February
2003 memorandum focused on closed meetings that involved no staff; this was not case
in PENS where multiple APA staffers were present. Gilfoyle also found the PENS setup
less problematic since the task force was not a formal APA decision-making body like
the Board of Directors. She also believed full and frank discussion could have been
inhibited if the meetings were more open.1245
1239 Id.
1240 Id.
1241 Id.
1242 Id. (emphasis in original).
1243 APA_0083932.
1244 Gilfoyle interview (May 20, 2015).
1245 Id.
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C.
Day Two: June 25, 2005
1.
Discussions about research
The evidence shows that Mumford, Brandon, Newman, and Gravitz made drafting
suggestions regarding the research recommendations, and at least some of Brandon’s drafting
suggestions made it into the final version.
Critics have pointed to some of this language as an indication that APA was intentionally
attempting to provide ethical support for research by the CIA or DoD on detainees at
Guantanamo or elsewhere, or was otherwise attempting to allow for research that involved harsh
interrogation techniques without the proper human-subject-research protections.
On the one hand, we found two notes in Behnke’s handwritten notes from the PENS Task
Force meeting in which the phrase “research on detainees” or “detainees as research subjects”
was noted. Behnke provided no explanation for these notes, and we found no emails or other
documentary evidence relating to them. In addition, in a meeting at the Department of
Homeland Security about two years earlier attended by Mumford and Brandon, one of the
subjects discussed was collecting data relating to detainees. Sources have told us without
corroboration that there is evidence of the CIA engaging in activity regarding detainee
interrogations that would constitute improper research.
Further, the language in the report’s research passages appears deficient. Ethics experts
have told us that the language in the PENS report quoted above was woefully deficient in terms
of the language that would typically be expected in order to communicate proper protections.
And the language regarding “cruel, inhuman, or degrading treatment” is ambiguous, and so may
easily be read to suggest that the research being described is to determine if interrogation
techniques that Americans would find cruel, inhuman or degrading may not be consider so bad
by other cultures.
On the other hand, we did not see evidence linking these recommendations to any actions
by APA officials regarding research, or linking their drafting to efforts by the government to use
a recommendation in the PENS report as a helpful point in being authorized to conduct human
subjects research without informed consent. We noted that these recommendations are not in the
12 ethical guidelines in the PENS report, and therefore do not have the force of ethical guidelines
for psychologists, in a way that might be pointed to as a justification for a psychologist’s actions.
We found this a topic on which it was difficult to draw clear conclusions, and our
discussion and analysis of the evidence is below.
Mumford sent Behnke a series of three emails the morning of the second day of PENS
meetings that included draft language on conducting research in national security settings. The
first message was sent at 8:16 a.m. ET,1246 the second at 10:09 a.m. ET,1247 and the third at 11:30
1246 APA_0029693; APA_0029694.
1247 APA_0029691; APA_0029692.
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a.m. ET.1248 Each of Mumford’s emails added another paragraph from the previous message.
Mumford did not specifically recall with Sidley who or what prompted discussions about this
topic. Some of the draft language was included into the final report.
A copy of the draft language from each email is listed below with comments on each:
First email draft language:
Psychologists support research to evaluate the efficacy of methods for gathering
accurate and reliable information relevant to national security. Such research
should be designed to minimize the risk/benefit ratio and emotional/physical harm
to the research participants consistent with existing standards of human subjects
research and APA ethics code.1249
x
A version of this statement appears as recommendation #7 in the final PENS report. It
removes the “risk/benefit ratio” and “emotional/physical harm” language and instead
states the need to “minimize risks to research participants such as emotional distress
.”1250
Brandon told Sidley that she may have contributed to the revisions of this research
point in the PENS report though she was unsure.1251 Behnke stated that, while he did not
recall the draft language, he would have been comfortable with the change made in the
final report since the risk-benefit language may be used to justify all kinds of risk in the
name of saving lives.1252
x
The same recommendation continues by stating that the research should be “should be
consistent with standards of human subject research protection and APA Ethics Code.”
Behnke stated that he understood “standards of human subject research protection” to
mean what medical ethicists thought were appropriate standards. Mumford believed the
language was an “unassailable and appropriate affirmation” to conduct research that
followed all standards of APA’s “Responsible Conduct Research.”1253 But read another
way, the language may have accommodated the prevailing Wolfowitz Directive, which
allowed DoD division leaders to waive informed consent for certain detainees.1254 More
on the Wolfowitz Directive was discussed earlier in this report. Behnke countered that
research on detainees would not fulfill the other language in the paragraph about how
1248 Mumford Notes (June 25, 2006) (on file with Sidley).
1249 APA_0029693; APA_0029694.
1250 PENS Report.
1251 Brandon interview (May 26, 2015); see also APA_0029660 (Mumford alludes to Brandon’s edits
making it into the final draft of the report).
1252 Behnke interview (June 8, 2015).
1253 Email from Mumford to Sidley (May 27, 2015); see also Responsible Conduct of Research, American
1254 Jason Leopold & Jeffrey Kaye, Wolfowitz Directive Gave Legal Cover to Detainee Experimentation
directive-gave-legal-cover-to-detainee-experimentation-program.
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