Index Manuals REPORT TO THE SPECIAL COMMITTEE OF THE BOARD OF DIRECTORS OF THE AMERICAN PSYCHOLOGICAL ASSOCIATION (2015)
|
|
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
the McCain Amendment and included in the justification statement that accompanied the draft
resolution provided to all Council members prior to the Convention.1782
IV.
CONTINUING CLOSE COORDINATION BETWEEN APA AND DoD OFFICIALS:
AUGUST 2006 - JANUARY 2007
In the months following Council’s adoption of the 2006 Resolution Against Torture,
APA staff and governance continued to closely coordinate with DoD on two interrelated matters:
Koocher and Behnke’s visit to Guantanamo, and requests for consultation with BSCTs and
medical staff stationed at Guantanamo. Though the initial impetus for the trip to Guantanamo
appears to have been independent of the desired ethics consultation, these consultation requests
soon influenced both how APA viewed the purpose of the trip and how it framed its objectives to
various constituencies.
It appears that the idea of the APA president visiting Guantanamo was first broached in
August 2006 when Kiley made his presentation to Council.1783 Koocher said that, during lunch
on the day of the Council meeting, Kiley had discussed the issue of hunger strikers at
Guantanamo and their program of forced feeding detainees whose health had become unstable.
Koocher recalled that some APA members present at the lunch had expressed ethical concerns
about the forced feeding program, and Kiley therefore invited him to Guantanamo to review the
forced feeding program and to ensure that it was being conducted ethically. Koocher explained
that he then invited Behnke to join him because it made sense to invite the ethics officer on a trip
with ethical evaluation as a component.1784
Sidley found no contemporaneous evidence illuminating the reason for the 2006 visit to
Guantanamo, but it seems likely that, as with Levant’s 2005 trip, the true purpose of the trip was
to bolster DoD’s public relations efforts. In a manner reminiscent of the visit a year earlier,
Behnke and Koocher’s schedule at Guantanamo was dominated by surface-level briefings and
prepared remarks, without the opportunity for meaningful evaluation of, or investigation into,
detainee operations. Contrary to Koocher’s explanation that the trip was intended to provide an
opportunity to assess the forced feeding program, Koocher and Behnke never interacted with
detainees or observed a forced feeding during their visit. It seems extremely unlikely that Kiley
genuinely invited Koocher to Guantanamo to evaluate an activity that Koocher was never
permitted to observe. Rather, it is more likely that Koocher’s explanation that Kiley invited him
1782 APA_0087663. In her interview with Sidley, Woolf recalled that during the 2006 Council meeting,
the room “caught on fire” at the lack of a definition for “cruel, inhuman, and degrading” (“CID”)
treatment, with the strongest opposition coming from clinicians who stated that they were constantly
being accused of being “cruel” in their treatment of patients. While Woolf believed that this was a knee-
jerk reaction, she nonetheless tried to devise a legal definition of CID during a break in the discussions.
Woolf interview (Mar. 26, 2015).
1783 APA_0087916.
1784 Koocher interview (June 12, 2016).
381
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
to visit Guantanamo to evaluate the forced feeding program was a convenient mask for the true
public relations purpose of the visit.1785
Koocher’s post hoc explanation for the visit also seems disingenuous because it squares
so conveniently with the healthcare-focused strategy developed by Banks and Behnke more than
a month after Kiley’s invitation, a strategy prompted by consultation requests from BSCTs and
medical personnel at Guantanamo. In October 2006, Carrie Kennedy, the Chief of Behavioral
Health Services at Guantanamo, reached out to Behnke to request his advice regarding an issue
that had arisen regarding the interactions between BSCT and medical personnel. Kennedy
informed him that BSCT psychologists were upset that they were being excluded from command
meetings in which both medical and mental health patient information were discussed. The issue
Kennedy raised was contentious during the work of the PENS Task Force: the Task Force
discussed including a statement that denied access to medical records for psychologists working
as consultants to interrogators, but Banks hadstrongly opposed this prohibition because he was
convinced that there were legitimate reasons that interrogators would need to access a detainee’s
medical records. In an apparent compromise, the PENS report included a statement that forbid
interrogators from making improper use of medical records to the detriment of detainees’ safety,
but did not forbid access altogether in recognition that a detainee’s “medical record may be
helpful or necessary to ensure that an interrogation process remains safe. . .”1786
In a shift in DoD policy more than a year after the release of the PENS report, it appears
that the military began to exclude BSCTs from discussions of detainee medical records, thus
prompting Kennedy’s request for a consultation. In his response to Kennedy, Behnke cited to
the PENS report and emphasized that the report was clear in stating that it was important to keep
“an absolute demarcation” between the roles of consultants and mental health providers. He
added that “[i]t would cause a GREAT stir if it became known that BSCT psychologists were
present in meetings in which medical and mental health patient information are discussed. This
is precisely the sort of commingling that the PENS report addresses” (emphasis in the
original).1787 Behnke continued that “according to the PENS report, there must be an absolute
demarcation between the role of consultant to an interrogation and health care provider. These
roles must not be mixed. Access to information is mixing the roles. . . Also please note: were it
to emerge in the media that BSCT psychologists were present at meetings in which medical and
1785 Koocher’s later actions suggest that he supported, or at least facilitated the military’s PR mission.
Upon his return, Koocher prepared a slide deck that presented information that uniformly reflected
positively on DoD, including a slide devoted to describing many types of information allegedly obtained
from detainees as the “interrogation yield.” APA_0005427. Although Koocher said that when he would
make the presentation, he would clarify that the slides were intended solely to transmit information from
the government, nothing in the slide deck states that the information merely reflects an account of what
Koocher was told or gives the impression that Koocher was simply reporting on what he heard without
meaningful inquiry or reflection. Moreover, the evidence demonstrates that Koocher generally took a
position in support of the military and the work of psychologists in national security settings. For
example, when Behnke responded to Pennie Hoofman’s request for an ethics consultation, he commented
that “Dr. Koocher, as you may know, is a very strong supporter of your work.” APA_0062933.
1786 PENS Report.
1787 APA_0088797.
382
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
mental health information were being discussed, we would have a disaster on our hands. I
cannot overemphasize what a problem this would create.”1788 Behnke again emphasized that
“psychologists’ presence at these meetings will be taken as evidence that these roles (consultant
and health care provider) cannot be separated. That data, in turn, will be used to argue that
psychologists should not serve in this role, because they cannot do so and abide by the ethical
guidelines that their own association (APA) has set forth.”1789 Although Behnke paid lip service
to his responsibility to assess the ethical implications of the issue, it is clear that Behnke’s focus
was almost entirely on the public relations consequences of this information leaking to the
media.1790
Behnke’s interpretation of the PENS report was, of course, at odds with the text of the
report and the discussion animating the statement, namely Banks’s opposition to such a rigid
firewall between BSCT personnel and medical information. Perhaps recognizing the potential
that his interpretation had for alienating Banks, Behnke asked Banks to review his response,
emphasizing that “[i]t would be a DISASTER if it came out (e.g., in the New York Times) that
BSCT psychologists were present during such meetings—that is collapsing the very line that
everyone looking at this issue has been saying is so important to preserve (consultant and health
care provider)” (emphasis in the original).1791 Consistent with his position during the
deliberations of the PENS Task Force, Banks responded to Behnke by presenting the “other
side” and explaining that it was “important that some medical information be shared with the
command, and that actually may include the interrogators.”1792 He clarified that he did not think
it was an ethical requirement to preclude BSCTs from accessing medical information,1793 and
emphasized that they had “worded the TF report so that this would not be precluded.”1794
However, Banks conceded that “[y]ou make a strong case, counselor,” and appeared to recognize
that the public relations impact of the policy might outweigh his strict ethical analysis: “[H]aving
said all that, if there is a way to complete the mission without the PR risk, that may be the right
decision, I just want to be clear that I do not think it is an ethical requirement.”1795
At the same time that Kennedy contacted Behnke regarding her concerns, Lt. Pennie
Hoofman, one of the BSCTs at Guantanamo, also contacted Behnke to ask for a consultation on
an ethical issue regarding the BSCT’s role. Behnke responded that Hoofman should attempt to
schedule a time during his upcoming visit to discuss these issues, but after speaking with Banks
regarding “some of the topics that may be brewing,” Behnke recommended that they defer the
discussion to another time to ensure that they could spend sufficient time talking through the
1788 Id.
1789 APA_0061301.
1790 APA_0061329.
1791 APA_0061338; APA_0061327.
1792 APA_0088810.
1793 APA_0088797.
1794 Id.
1795 Id.
383
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
issues.1796
Behnke’s concern that he could not fully address Hoofman’s concerns during his
scheduled visit to Guantanamo is yet another demonstration of the shallow nature of the trip and
its true public relations purpose. Contemporaneously with Hoofman’s inquiry, Kennedy again
reached out to Behnke to raise another issue that she wished to discuss only by phone.1797
Suspecting that Kennedy and Hoofman’s concerns were related, Behnke reached out to Banks
who clarified that Hoofman and Kennedy were each independently contacting Behnke about the
same issues.1798
Immediately before his trip to Guantanamo, which was to take place on November 12-13,
Behnke once again turned to his advisors within DoD to prepare for the visit, seeking briefings
with both Debra Dunivin and Morgan Banks.1799 It is clear that Banks felt that he needed to
discuss some issues with Behnke because, just days before Behnke traveled to Guantanamo,
Banks emailed “[w]e certainly do need to talk on this before you go down there.” Following a
call between Behnke, Banks, and Dunivin, Dunivin fed a list of questions to Behnke, all of which
pertained to efforts to consult with behavioral science consultants, legal and ethical authorities,
or written policies regarding the issue the three discussed.1800
Although it is not clear from the
documentary evidence what precisely Behnke, Banks, and Dunivin discussed, it seems likely that
this conversation followed up on the earlier discussions relating to interactions between BSCTs
and medical personnel.
When Behnke received details about the itinerary for the trip and saw that the President
of the American Psychiatric Association was also scheduled to attend, he again wrote to Dunivin
and Banks, his trusted contacts within DoD, to express his concern that ApA would use the trip
“as another opportunity to say why the psychiatrists are in the right and we are not.”1801 In
response, Banks outlined a strategy that would permit Behnke to avoid difficult questions about
BSCTs and interrogations by focusing only on detainee mental health care, and “leav[ing] the
Interrogation Support question alone.”1802 Shortly afterward, Behnke implemented Banks’s
strategy. He drafted an email to Hoofman, which he sent to Banks and Dunivin for review, to
defer the planned meeting, explaining that “the trip has pretty clearly been designed to look at
the health care mission, and given certain participants I do not want to raise the profile of the
information-gathering activities.”1803
Behnke’s message to Hoofman was entirely disingenuous:
because it was not at all clear that the trip was “designed” to focus on health care; rather, such a
1796 APA_0062933.
1797 APA_0062988.
1798 APA_0088632.
1799 APA_0062923.
1800 Id.
1801 H. Steven Moffic, Can the Name of an Organization Be an Ethical Issue?, available at
b51ff5cfbe6d8498ee99.
1802 APA_0088502.
1803 APA_0062845.
384
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
focus was consistent with the post-hoc public relations strategy devised by Banks only days
earlier.
Banks supported Behnke’s decision to defer consultation, which he had himself advised,
but encouraged Behnke to spend a few minutes with Hoofman, explaining that “[a]lthough I hold
her partially responsible, she has had little or no consultation while down there.”1804 Behnke
again implemented Banks’s advice, setting aside a small amount of time to meet briefly with
Kennedy and Hoofman. Behnke’s interactions with Banks and Dunivin in the weeks before his
visit to Guantanamo clearly demonstrate a direct line from DoD’s advice to APA’s actions;
Behnke consistently turned to his advisors in the DOD for direction and then implemented the
strategies and actions advised by them. Moreover, this direct line was hidden to all but the few
individuals directly involved. Behnke increasingly devoted his energy to pursuing the agenda
that he and Banks jointly developed while making it appear as though he was acting
independently as APA’s most senior ethics officer.
On November 16, 2006, after his return from Guantanamo, one of Behnke’s first
activities was to report back to Banks and Dunivin that the trip was “extremely interesting and
informative.”1805
When Dunivin thanked Behnke for taking the time to travel to Guantanamo
and prepare for the visit, calling him her “hero always,” Behnke responded: “Debra, that is very
sweet, but embarrassing when I think of what little I do in comparison to the risks and challenges
you and your hardworking colleagues face, and of course Dr. Banks, who is goodness knows
where. . . I’m frustrated that I’ve not been able to keep these storm clouds from continuing to
gather around us.”1806 These exchanges are yet another example of the close friendships and
partnerships Behnke developed with his contacts in DoD. Both parties continually expressed
appreciation for the contributions of the other to their mutual goals.
Immediately after Behnke’s return, he began to exchange emails with the ApA president,
who had also attended the visit to Guantanamo. Behnke forwarded these emails to Banks, who
shared his impression that the communications were a “good sign” that signaled that the new
president did “not personally support their [ApA’s] position.”1807 As the communications
between APA and ApA ripened into a joint statement of APA President Gerald Koocher and
ApA President Pedro Ruiz, emphasizing the areas of agreement between the positions of the two
associations, Behnke once again turned to Banks for comments and advice.1808
Banks responded to Behnke that he was concerned by the reference in the joint statement
to working “in accordance with international human rights instruments” because it would place
DoD psychologists at risk. However, his resistance to that language was tempered by the phrase
“consistent with their roles,” which he interpreted as providing protection to psychologists.
Behnke confirmed that he had worked on the “consistent with their roles” language in the
1804 APA_0088476.
1805 APA_0064166.
1806 APA_0064147.
1807 APA_0090045.
1808 APA_0064004.
385
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
context of the Resolution Against Torture adopted at the August 2006 Council meeting1809 and
had “discussed this text with one other individual who’s doing the work and whom you’ve
spoken highly of,” to further address Banks’s concerns.1810 Thus, Behnke continually
coordinated with his DoD contacts to ensure that APA’s messaging was sufficiently nuanced to
align with DoD’s preferred policy positions in a way that would not limit DoD’s ability to use
psychologists in ways that were the most helpful or efficient.
In early January 2007, Behnke and Banks worked to schedule a visit to Guantanamo for
the coming March to consult with Hoofman on the ethical issues she had raised the previous
October.1811
However, by the end of the month, Behnke informed Banks that there had been
attempts to “get the Board to say that no one in APA leadership will travel to Guantanamo,” and
that even though his supervisor (Mike Honaker) gave him permission to go to GTMO, it was
possible that the trip may not happen.1812 Behnke’s revelation of confidential information
regarding internal Board discussions is yet another demonstration that he had come to see
himself and APA as aligned with Banks and DoD in a joint enterprise. It is likely that Behnke’s
commitment to his joint efforts with Banks were at least partially fueled by their personal
friendship, and a desire to be useful and supportive of one another. In response to Behnke’s
message regarding the cancelled visit to Guantanamo, Banks thanked him for coping with the
frustration and emphasized “how important your involvement is” and “how valuable your
contribution has been.” Behnke, in turn, expressed his gratitude to Banks by commenting that “I
know I can always count on you.”1813 These exchanges demonstrate that Behnke’s close
coordination with Banks and DoD was driven not only by his professional goal of advancing
psychology, but also by his desire to serve in a critical support role to individuals with whom he
had formed close personal relationships.
As further evidence that Behnke had become more closely aligned with DoD than with
the APA Board, Behnke began managing a communication strategy with Banks in an effort to
manipulate the Board into approving his visit to Guantanamo. Behnke reached out to Hoofman
to see if she could draft an invitation letter directed to him that stated specifically: (1) current
DoD policy explicitly references the PENS report and the request was for a consultation on the
application of the PENS report and other relevant APA positions; (2) the purpose of the
consultation was to discuss how psychologists could remain within the proper, ethical bounds of
their work; and (3) on-site consultation was requested out of necessity. Behnke schemed with
1809 Notably, the Resolution adopted by Council included slightly different language: “[P]sychologists
shall work in accordance with international human rights instruments relevant to their roles.”
1810 APA_0064004. The identity of the “other individual” to whom Behnke refers is not clear, but it
seems likely that Behnke discussed this language with a BSCT psychologist, as an individual “doing the
work” that Behnke and Banks were discussing. Considering the close coordination between Behnke,
Banks, and Dunivin throughout this period, and Behnke’s communications with Dunivin as Surgeon
General Kiley’s contact person in the period leading up to the 2006 Council meeting, it is most likely that
Behnke was telling Banks that he had consulted with Dunivin on the language included in the 2006
Resolution Against Torture.
1811 APA_0089514.
1812 APA_0063265.
1813 Id.
386
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
Hoofman to distinguish this trip from the other VIP tours that Koocher and Levant had attended
so that he could demonstrate to the Board that this trip was different in both nature and purpose.
Notably, he emphasized that the trip would not be publicized to the general APA
membership.1814
On March 19, 2007, Hoofman sent a formal invitation letter to Behnke, requesting his
consultation on the APA Ethics Code, the PENS TF report, and Council resolutions as they
applied to BSCT psychologists.1815 Behnke acknowledged receipt of the letter and informed
Hoofman that he would forward it to the APA Board. However, he continued to massage the
message by indicating that “[g]iven COL. Banks [sic] very high media profile on this issue, his
name may possibly draw attention.”1816 Behnke then forwarded Hoofman’s letter to Banks,
inviting him to “read between the lines and take whatever action you think appropriate re:
wording of the memo.”1817 Although Sidley did not find evidence that Banks provided any
further revisions before Behnke forwarded Hoofman’s letter to the Board, Behnke’s message
was a clear invitation to Banks to excise his name from the letter.
Over the next several days, Behnke continued to communicate with Hoofman regarding
travel arrangements and other logistics for the trip. Behnke applied for a security clearance to be
able to consult with BSCTs and medical staff,1818 and Hoofman applied for Invitational Travel
Orders for Behnke. They also discussed the source of funding for the visit, and Hoofman
clarified that she had obtained approval to fund Behnke’s trip.1819
However, on March 24, 2007, Behnke wrote to Hoofman, Banks, and Dunivin to inform
them that APA would be able to host a consultation only in Washington, DC, rather than at
Guantanamo as planned.1820 The next day, Banks wrote to Behnke that he hoped the process had
not been “too destructive,” to which Behnke responded: “Morgan, you know the enormous
respect I have for you and your work. Nothing could diminish that, nor my commitment to
continue to support all of your efforts, and the efforts of the great men and women who protect
our country and our freedoms.”1821 This show of support is yet another example of the strong
personal friendship between Behnke and Banks that served as a foundation for their joint efforts
to shape APA and DoD policy in a mutually reinforcing manner.
1814 APA_0064307.
1815 APA_0091087; APA_0091088.
1816 APA_0064475.
1817 Id.
1818 APA_0064457. Although the documents do not show whether Behnke was awarded the clearance, he
reported to Sidley that he never received it.
1819 APA_0091005.
1820 APA_0065065.
1821 Id.
387
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
On March 25, 2007, Dunivin addressed an email to Brehm, Koocher, and Anton,1822 in
which she stated that she was “frankly incredulous” that APA would respond as it did to a
request for an ethics consultation. She added that their decision was tantamount to a statement
that APA is not interested in providing assistance to psychologists in the military, and that it
raised “questions about the ability of APA leadership to make sound decisions to support
military psychologists as directed by Council after discussion of the PENS TF Report.”1823 It
seems clear that Dunivin was under the impression that Brehm, Koocher, and Anton, were
responsible for cancelling Behnke’s planned consultation trip to the BSCT psychologists.
Whether or not these particular Board members were the individuals who most strongly opposed
the trip, it is clear that Behnke had at this point lost the full support of the Board with regards to
his agenda of support for the military. His staunchest supporters, Ron Levant and Gerry
Koocher, were no longer in positions of strong power or influence, and he could no longer count
on APA’s governance bodies to accede to his preferred policy judgments, preferences which he
developed in conjunction with Banks, Dunivin, and other contacts within DoD.
In June 2008, Behnke again declined an invitation to visit BSCTs at Guantanamo because
he “was not entirely optimistic that a visit at this time (or the near future for that matter) will be
possible.”1824
Instead, Behnke arranged to continue meeting BSCTs for training at Fort
Huachuca.
V.
CONTINUING COORDINATION ON MEDIA STRATEGY AND PUBLIC
STATEMENTS: JULY 2006 - JULY 2007
In parallel to APA’s efforts to coordinate with DoD regarding consultation at
Guantanamo, Behnke also continued to coordinate with his partners in DoD regarding media
strategies and public statements. The pattern of communications during this period demonstrates
that Behnke and Banks were coordinating to ensure that both the military and APA were issuing
statements on the interrogation issue that were consistent and mutually reinforcing. In a sense,
the two were engaged in a joint venture to achieve their common goal of facilitating
psychologists’ participation in the military to the maximum extent possible. The problem with
their partnership was that it compromised APA’s independence and removed the ethical check
that APA, as a professional association, was supposed to provide. The discussions demonstrate
that Behnke was highly attuned to the way that APA’s public message could affect military
activities, and that he was motivated to ensure that APA did not hinder the military’s mission in
any way.
During the summer of 2006, Behnke’s communications with Banks primarily focused on
APA’s defense of the PENS Task Force. For example, in early July 2006, Behnke composed a
summary of his “off the record” exchanges with reporter Art Levine, who was writing an article
on APA’s position regarding psychologists’ involvement in interrogations.1825 As discussion
turned to Morgan Banks, including both targeted questions about Gregg Bloche’s allegations that
1822 At the time, these individuals were President, Past President, and Recording Secretary, respectively.
1823 APA_0090959.
1824 APA_0099662.
1825 APA_0061057.
388
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
Banks had advised the Guantanamo commander on SERE techniques that were applied during
detainee interrogations and inquires regarding the ethical implications of his service on the PENS
Task Force, Behnke put forward a vigorous defense of Banks:
Morgan Banks has been forceful and unequivocal: ANY INVOLVEMENT BY A
PSYCHOLOGIST IN ASSISTING OR CONSULTING TO AN
INTERROGATION IS FOCUSED ON KEEPING THE INTERROGATION
SAFE, LEGAL, ETHICAL, AND EFFECTIVE
BANKS IS A VERY
INTELLIGENT MAN AND THE LAST THING HE WOULD DO WOULD BE
TO CALL ATTENTION TO HIMSELF IN THIS MANNER IF HE HAD
SOMETHING TO HIDE.
Morgan Banks has been clear in discussions that ANY TORTURE OR ABUSIVE
TREATMENT WILL INCREASE RESISTANCE TO AN INTERROGATION,
AND THUS WILL HAVE PRECISELY THE OPPOSITE OF THE INTENDED
EFFECT
IF THE GUIDANCE BANKS PROVIDED IS
DECLASSIFIED, AND THE GUIDANCE DOES NOT INVOLVE THE
ABUSIVE TECHNIQUES BLOCHE DESCRIBES IN THIS NEW YORK
TIMES EDITORIAL, IS BLOCHE PREPARED TO MAKE A PUBLIC
APOLOGY TO MORGAN BANKS?1826
Behnke forwarded this summary to Koocher and Levant, commenting that “it has become
clear that there is, for lack of a better term, a ‘left wing conspiracy’ against APA on this issue,
something I’ve suspected for a long while but have become entirely convinced of now.”1827
When Behnke forwarded the email and summary to Banks, he warned Banks in confidence that
Levine was “really coming after” Banks, and asked Banks to “[p]lease let me know where I’ve
gone astray. Also, if you think there are other points I should make, I can do so. I hope I’ve
done a good job here. . .”1828 Behnke’s discussion with Levine and comments to Levant,
Koocher, and Banks demonstrate that he was becoming more defensive and paranoid regarding
media criticisms of APA and military psychologists. From this point forward, he increasingly
turned to his partners and friends in DoD to craft a unified response to critics and to ensure that
the APA and military media strategies aligned in message and theme.
Behnke and Banks also coordinated APA’s response to fend off other reporters writing
articles critical of the PENS Task Force. On July 19, after Mark Benjamin, a reporter from
Salon, started reaching out to members of the PENS Task Force for interviews, Behnke emailed
only the military-affiliated members of the Task Force to describe the response that APA had
been giving to similar questions.1829 When Banks circulated one of Benjamin’s previous articles
1826 Id. (emphasis in original).
1827 APA_0061056.
1828 Id.
1829 APA_0087235.
389
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
that had been highly critical of military psychologists, the group decided to funnel all inquiries
through Behnke’s office.
On July 30, 2006, Behnke forwarded to Banks a message he had sent to Levant, Koocher
and Gilfoyle regarding the adequacy of legal protections and process afforded to detainees,
asking for Banks’s thoughts on the issue.1830 In a second email exchange on that day titled “Eyes
only thoughts,” Banks and Behnke discussed their thoughts on the legal status of and rights
granted to Guantanamo detainees. Behnke commented that he “got together with Jennifer
Bryson a few weeks ago,” and that from their discussion, he understood that the International
Committee of the Red Cross had access to all detainees subjected to interrogation.1831 Banks
confirmed that “I believe [ICRC] ha[s] access to those at GTMO, but I cannot speak definitively,
or for the US government, on that question,” commenting that he would need to check with the
JAGs for accuracy. It is clear from Behnke’s reference to his meeting with Bryson, an
interrogator with the Defense Intelligence Agency in the Office of the Secretary of Defense, that
he was consulting broadly in both military and civilian parts of DoD to receive guidance on APA
policy.
Behnke’s requests for advice began to broaden over the following months, to include
discussions not only of substance but also of presentation. For example, on September 21, 2006,
Behnke consulted Banks to ensure that a letter signed by Koocher and Zimbardo, which urged
Senator McCain to oppose legislation that would exempt the CIA from the absolute ban on
torture, would not cause problems for him.1832 Two days later, on September 23, Behnke
forwarded a discussion he had with Koocher regarding how to frame the chronology of APA’s
responses to the torture issue. In his message to Koocher, Behnke explained:
[W]e should think through how the issue is being framed. The issue has been
framed (incorrectly, I believe) as disagreement about what interrogation
techniques are permissible/prohibited. In reality, within APA there is virtually no
disagreement whatsoever on this question—there is near total consensus on which
interrogation techniques are ethical and which are not . . .
I think we do much better to frame the debate as one over the correct strategy to
reach our common goal: ethical interrogations. The issue that is the subject of
debate is whether we should be at places like Guantanamo. The psychiatrists
have chosen one strategy: issue a “ban” . . . The problem with that approach is
that one loses any ability to influence policy—one no longer has a place at the
table.
APA’s approach has been to stay engaged to make our voice heard and our
influence felt.
1830 APA_0062364.
1831 APA_0062349.
1832 APA_0061670.
390
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
When Behnke forwarded his analysis to Banks in confidence and asked for his opinion,
Banks commented that it was a “[s]olid analysis” and added: “The bottom line is that there is no
light between the DoD position and APA’s position, that I can see. You are VERY correct in
pointing out that how you frame the debate will determine the outcome. We help keep them
safe.
(All those against safety please stand up.)”1833
As Banks’s flippant comment regarding
safety demonstrates, DoD’s “framing” rested on using public safety and the fear of future attacks
as a public relations tool. His comments also demonstrate that he spoke not only on behalf of
himself, but also as an authoritative voice on how to construe DoD policy. Indeed, it seems
likely that Behnke viewed Banks as a critical touchstone in DoD, given Banks’s connections to
highly-ranked individuals in the medical and operational commands. This exchange is yet
another example showing that Behnke and Banks worked together to closely align both the
substantive policies and the messaging efforts of APA and DoD.
Several months later, after Stephen Soldz circulated a “Letter to the CEO of the
American Psychological Association” on November 28, 2006, Behnke prepared a draft response
and sent it to Banks, asking him to identify any potential problems in the letter and inquiring as
to what points would make it stronger.1834 On December 3, Banks reacted to the “inflammatory
language” in Soldz’s letter and commented that he was not aware of an credible evidence that
John Leso had participated in abuse of any detainees, as the letter suggested.1835 He also
provided comments on Behnke’s draft response,1836 some of which were incorporated into the
next revision to Behnke’s letter.1837
Behnke’s consultation with Banks and Dunivin continued in 2007 and over the next
several years. During a debate with another APA member on the Division 39 listserv in January
2007, Behnke emailed both Dunivin and Banks to solicit their thoughts on what his response
should be.1838
Banks responded that Behnke should emphasize that APA has consulted with the
Army in developing a policy and with individual military psychologists regarding how to
effectively perform their roles. He also suggested that Behnke emphasize that APA has
developed policy, offered training, and engaged in consultation with military psychologists to
“make sure that foreseeable ethical challenges would be forestalled.”1839 Banks concluded by
providing a quote that Behnke could use in his response:
This issue is one of the most complex and challenging of any ethical conflict, and
Dr. Behnke has helped the Army to carefully craft useful guidelines that protect
1833 APA_0088369 (emphasis in original).
1834 APA_0063981.
1835 APA_0089874.
1836 APA_0089875.
1837 APA_0063955.
1838 APA_0063320.
1839 APA_0063338.
391
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
the individual detainees, while still allowing the use of psychology’s knowledge
of human behavior to help our country prevent atrocities.1840
Banks’s response shows the close collaboration and joint purpose between APA and DoD on the
vital issue of psychologists’ involvement in interrogations. In effect, Banks applauded Behnke
for accepting his guidance and direction in drafting the PENS report to closely match DoD’s
desired outcome, which allowed DoD to, in turn, use the PENS report to bolster its own set of
guidelines.
Behnke’s response to Banks’s comments demonstrates his disdain for critics that opposed
DoD’s position and his understanding that APA would further DoD’s preferred message without
permitting any attribution back to DoD:
[U]nlike some of our colleagues whose ability to generate prattle on this subject is
apparently endless, you [Dunivin] and Morgan [Banks] have full-time work that is
hugely demanding and important
I will work with Morgan’s statement to
convey his message without indicating that there are particular persons/positions
to be identified, which with this crew would be a bit like waiving [sic] a bloody
rag in front of a grizzly.1841
On January 26, Behnke responded to the Division 39 critic, incorporating some of Banks’s ideas
regarding the importance of APA’s contribution to DoD. Behnke wrote: “APA’s approach to
interrogations is having an increasingly visible and strong presence in the Department of Defense
and has been adopted into Department of Defense policy . . .”1842 Once again, Behnke accepted
the guidance of his DoD advisors and allowed them to steer APA messaging and policy.
As the interrogation issue remained the subject of media stories, private reports, and
member inquiries, Behnke continued to turn to Banks as an advisor regarding how to respond
and, increasingly, Banks did the same with Behnke. In April, Behnke and Banks collaborated
again on DoD’s response to a speech by Stephen Soldz, which had come to the attention of
Guantanamo officials. On April 18, 2007, Banks emailed Behnke the transcript of Soldz’s talk
about, among other things, psychologists’ involvement in military interrogations, which had been
delivered the day before. Banks stated that he:
[R]eceived a request from the Admiral in charge of GTMO. The attached article
was published in the local GTMO newspaper, and he would like me or someone
‘at my level’ to respond. I am looking at it right now, but wanted to check and
see if you were going to address it, or if you had any recommendations … I
appreciate your thoughts, and if you are planning on a formal response, then, with
your permission, that would probably be best.1843
1840 APA_0063320.
1841 Id.
1842 APA_0063326.
1843 APA_0091534.
392
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
Two minutes later, Behnke asked if Banks was available for “a quick shout,” and Banks
gave Behnke a number at which to reach him.1844 Within two hours, Behnke sent Banks a draft
response, which claimed that Soldz “leaves out numerous facts central to the discussion, and
distorts other facts that would lead a reasonable person to precisely the opposite conclusions that
he appears to draw.”1845 It is clear that Behnke and Banks were, by this point, acting as a true
partnership: not only did Behnke lean on Banks for guidance, but Banks also requested advice
and assistance from Behnke in drafting statements and talking points for DoD. Moreover, it is
clear that the partnership was not just between the two men, but rather their respective entities as
well. Banks’s message revealed a direct line between him and the commander of Guantanamo,
and asked that Behnke assist him in drafting a statement in defense of DoD that was specifically
requested by the DoD commander.
Upon receiving Behnke’s proposed response, Banks responded that the draft was
“[f]antastic” and asked “[a]s we figure out what the admiral wants, can I give you credit, or is
this ‘deep bacground’ [sic]?” Behnke replied that it was “probably best to keep me on deep
background, at least for the moment
Let’s see what the admiral wants, and then we can
refine if need be.”1846
Banks commented that he “plan[s] on using [the draft], and [doesn’t] like
to plagiarize,” and Behnke responded: “Well Morgan, it may be my words, but it’s all yours
conceptually.”1847
The coordination between Behnke and Banks to keep Behnke’s role
concealed echoes their maneuvering to keep hidden Banks’s guiding hand in statements Behnke
made on behalf of APA. Behnke and Banks acted as teammates in their efforts to shape APA
and DoD messaging, but in many ways they were “silent” partners: Behnke and Banks ensured
that the joint effort was concealed from their respective entities, and that it appeared to APA and
DoD leaders that each was acting independently on behalf of his own organization. This
exchange is yet another indication that an important part of the collaboration was concealing the
shared effort from anybody not directly involved in the partnership.
On May 15, 2007, Behnke reached out to Banks to ask him for advice on the latest draft
of a statement he was preparing regarding APA’s stance on interrogations.1848 He commented
that “[w]e’re starting to take some pretty heavy fire again, in anticipation of Convention. Would
prefer that we weren’t meeting in San Francisco this year, but that’s well above my pay
grade.”1849
Behnke was likely concerned that APA would encounter more aggressive protests
and criticisms in such a liberal city, some of which they might have avoided by holding
Convention in another location. The following day, Behnke alerted Banks that Katherine Eban’s
1844 APA_0091536.
1845 APA_0065361.
1846 Id.
1847 APA_0065369.
1848 Isolated requests for advice continued over the following months. For example, on May 29, Behnke
forwarded a post to the Social Justice Division listserv related to Soldz’s article titled “Pentagon IG
Report Details Central Role of Psychologists in Detainee Interrogations and Abuse: Shrinks and the
SERE Technique at Guantanamo,” asking Banks whether they could discuss it. Banks replied
“[c]ertainly.” APA_0092295.
1849 APA_0065817.
393
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
piece for Vanity Fair was getting close to publication, and that “a focus of her article will be
SERE. I don’t think it will be pretty . . . Did you ever actually speak with her?” Banks
responded that he did not speak with Eban and asked Behnke what he thought she would write in
her article. Behnke replied that he did not know what Eban was planning.1850
On June 10, 2007, Dunivin wrote to Newman, Behnke, and Farberman about an open
letter from “Concerned Psychologists” to APA President Sharon Brehm, which had been issued
as a press release the day before, commenting “[t]his is pretty ugly.”1851 Several days later, on
June 14, Behnke reached out to Dunivin to ask her to put him in touch with a JAG in the Army
so that he could ask “a couple of questions about law and interrogations” in connection with a
response he was composing to the open letter.1852 Behnke’s request to Dunivin is another
example of his pattern of bringing in his teammates in DoD to give guidance regarding APA’s
public statements. Notably, Behnke did not have a habit of engaging in broad outreach: Sidley
has found no evidence that Behnke would regularly contact individuals aligned with peace
psychology for their input regarding APA’s position statements, and there is no evidence that he
reached out to a human rights lawyer in this case. Rather, Behnke consistently consulted with
only his partners at DoD for feedback and advice on the statements APA would make.
At this point, Behnke and Banks began to become more guarded in their conversations,
instructing one another to destroy records of their communications. On June 17, after Banks
made a passing reference to his “successful interview, (I think
),” Behnke responded that
he looked forward to hearing about it and asked if he could mention that Banks had spoken to the
Senate Armed Services Committee.1853 Banks responded:
Steve, (Please delete this after reading it. It is for your eyes only.)
I still owe you an answer on that. I completely forgot to ask. My expectation is
that it will be OK, but I want to make absolutely sure. There is some REAL
politics going on here. I mean REALLY naked politics. There are a couple
things I want to run past my lawyer first, based on some of the things they said. I
am 95% sure I will give you a bunch that you can say, but not until late tomorrow.
Overall, though, I believe that I was able to give an accurate picture of my
behavior
I gave them a copy of the PENS report, although I expect they
were already fully aware of it. They did not question me at all on it, other than a
final ethical question that I answered by referring to the report
PLEASE DELETE this email after you have read it.
1850 Id.
1851 APA_0092064. Behnke also received the open letter as a forward from Brad Johnson. A number of
military individuals, including Banks and James, had provided comments on the letter. APA_0097952 &
APA_0097953.
1852 APA_0091956.
1853 APA_0066717.
394
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
Behnke assured Banks that the email was “[d]ouble deleted.”1854
The following month, Behnke’s DoD partners again contacted him to request confidential
advice regarding a public statement DoD planned to make to APA itself. On July 2, 2007, in an
email titled “Please review, then destroy,” Banks sent Behnke a first draft of his letter to Brehm,
lobbying her to continue APA’s support of military psychologists. Banks asked Behnke to be
“brutal” in his revisions because “this is damn important to me.”1855 Because it was not
approved for distribution, Banks requested that Behnke destroy it after giving him feedback.1856
On July 7, Banks forwarded another draft of the same letter to Behnke, again requesting
feedback.1857
The following day, Behnke sent Banks a robust set of comments to what he
characterized as “one smokin’ letter.” Behnke suggested that Banks frame his message more
positively to remove the “tinge of a defensive tone,” and added several substantive points.1858
He concluded by proposing two new paragraphs as a “brief ending”:
The recent report of the DoD Inspector General has generated much discussion
and debate. As I have explained, I take issue with some of the facts presented in
the report. Nonetheless, I do believe the report captures a truth: A conflux of
factors led to behaviors that fall beneath the dignity of the United States and that
have placed a stain on our country’s reputation. It is essential that we as a
profession and we as a country understand what occurred, to ensure that those in
our country’s custody are never treated in any manner other than with dignity and
respect. To that end I am giving the Senate Armed Services Committee my full
cooperation and I encourage all of my colleagues to do likewise.
At the same time, I must implore you, as President of the Association, and those
who are writing these letters, that besmirching the reputations of psychologists
will not serve any worthy goal. There are psychologists—several of whom served
on the PENS task force—who have expended considerable professional efforts at
great personal cost to uphold our core values and to ensure the humane treatment
of all detainees. It is a tragedy that some of these courageous individuals have
now had their reputations tarnished based on conjecture, speculation and
innuendo. The tragedy is compounded because some of these individuals, by
virtue of their positions, are not able to speak out in their own defense.”1859
In Banks’s next draft of the letter, he accepted Behnke’s substantial revisions and
additions almost without alteration.1860 Although Banks had written an initial draft, Behnke’s
1854 Id. (emphasis in original).
1855 APA_0097254; APA_0097255.
1856 Id.
1857 APA_0097148; APA_0097149.
1858 APA_0066941.
1859 Id.
1860 Banks omitted the phrase “to uphold our core values,” perhaps thinking that this rhetorical flourish
might not be credible.
395
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
substantial comments and partial rewrite demonstrate that he, in practical effect, ghostwrote a
message from DoD that was intended to lobby his own organization.
Banks and Behnke’s agreement beginning in June to not only speak in confidence, but
also to destroy the records of their conversations might explain why records of communications
between the two drop off sharply during the summer of 2007.1861 It is impossible to know
whether their discussions tapered off naturally as Behnke needed less guidance or whether the
two continued to discuss their joint media and policy strategies. However, the abrupt end to
conversations between Behnke and Banks in Sidley’s records at precisely the same time that
Banks began instructing Behnke to delete their messages strongly suggests that their discussions
continued, but that records were destroyed in an attempt to conceal the collaboration.1862
VI.
BEHIND-THE-SCENES COORDINATION WITH DoD REGARDING THE 2007
COUNCIL RESOLUTION: AUGUST 2006 - AUGUST 2007
At the August 2006 Council meeting, Neil Altman, representing Division 39
(Psychoanalysis), moved to add a new business item titled “Psychologist Participation at US
Detention Centers” for consideration at the August 2007 Council meeting. The main motion of
the item requested that Council opt for “a moratorium on the participation in any form, of
psychologists at detention centers where the rule of law (international and domestic) has been
called into question by the executive branch of the US government.” Altman introduced
“substitute motion #1” to accompany his main motion, which requested that Council adopt a
resolution to put a moratorium on psychologists’ involvement in U.S. detention centers. The
motion was referred to the Board of Directors, and six Boards and Committees.1863
Shortly after Council met, Behnke started drafting messages designed to convince APA
members to embrace a policy of engagement in the complex ethical issues related to
interrogations. On August 24, 2006, Behnke asked Banks to review a draft email responding to a
discussion about ethics and interrogations taking place on the Division 44 (Society for the
Psychological Study of Lesbian, Gay, Bisexual and Transgender Issues) listserv and to let him
know “if it looks okay.”1864 In that draft email, Behnke argued that there was no disagreement
1861 Indeed, the only other significant communication we found in APA’s email records between Behnke
and Banks leading up to the August 2007 Convention was a July 7 request for Banks’s preclearance of a
response to Steven Reisner’s inquiry regarding whether implementing the techniques from Rumsfeld’s
April 16, 2003 memorandum would constitute a violation of the Ethics Code and PENS Report.
APA_0066964.
1862 Sidley considered whether the tempo of discussions between Behnke and Banks might have changed
because Banks deployed overseas or otherwise became less available, but Banks confirmed that he was
stationed at Fort Bragg during 2007 and 2008 and did not deploy overseas during that time. Email from
Banks to Sidley (June 24, 2015).
1863 Approved Minutes of the Council (Aug. 13 -16, 2006) & Draft Nonconfidential Minutes of the Ethics
Committee (Oct. 26 - 29, 2006). The Boards and Committees that reviewed the motion were: 1) the
Ethics Committee; 2) the Board for the Advancement of Psychology in the Public Interest; 3) the Board
of Professional Affairs; 4) the Committee for the Advancement of Professional Practice; 5) the
Committee on Division/APA Relations; and 6) the Committee on Legal Issues.
1864 APA_0062048.
396
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
among the membership that ethical interrogations did not involve torture or CIDT, and that
“APA must decide between a policy of engagement or a policy of disengagement.” Behnke
concluded that “[n]ature abhors a vacuum, and if APA pulls out there will be others to fill that
space. I think it makes good sense for APA to stay engaged to make our positions clear and our
influence felt.”1865
On the same day, Art Levine from the Washington Monthly emailed Behnke and asked
him about the following off-the-record comment he made about Morgan Banks in relation to the
PENS report: “WHY IN THE WORLD WOULD BANKS RAISE HIS PROFILE BY
PARTICIPATING ON AN APA TASK FORCE THAT WOULD EXPOSE HIM TO
PRECISELY THE KIND OF SCRUTINY HE HAS RECEIVED FOR THIS ROLE??”1866
Within twenty minutes, Behnke forwarded Levine’s question to Banks and asked him to “please
advise.”1867 Banks responded later that evening and told Behnke that his support “means a great
deal to [him].” Banks suggested that Behnke respond with the following:
Dr. Banks is working hard to put into place a written policy of what psychologists
may and may not do while supporting interrogations […] You have seen what we
are trying to put into place, and it is totally consistent with the ethical standards of
the APA. Currently, Dr. Banks is away from his office, and will not return until
next month […] Dr. Banks agreed to be a member of the Task Force in order to
establish clear ethical guidelines for his psychologists.1868
Incorporating Banks’s suggestions, Behnke sent a draft statement back to Banks for his
approval several minutes later. The revised draft stated:
Morgan Banks has made clear that the effect of SERE training is to increase
resistance to interrogation. Thus, relying upon SERE trechniques to interrogate
would be directly counterproductive to the goal, and so not part of any competent
interrogator’s technique. Dr. Banks has vigorously and steadfastly advocated that
interrogation must in every instance be safe, ethical, and effective and on the
PENS task force Dr. Bank’s [sic] role was to help establish these clear ethical
guidelines that would be the rule for APA members and for any psychologist
advising or consulting to an interrogation.1869
Shortly thereafter, Behnke began to engage in a back-and-forth email discussion with Art
Levine from Washington Monthly, who focused on the issue of APA’s lack of clear guidance on
specific examples of interrogation techniques that would be considered unethical. On September
9, 2006, Levine emailed Behnke and pointedly asked “if there is such universal agreement
between leadership and dissident members over abusive interrogations, why hasn’t the APA in
1865 Id.
1866 APA_0062039 (emphasis in original).
1867 Id.
1868 Id.
1869 APA_0062033.
397
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
writing and proclaimed from the rooftops specific techniques [sic] that are banned and
psychologists should have no role in whatsoever?”1870 About an hour later, Behnke responded
emphatically that there is
“NO fight over definitions in APA of what is abusive … NO ONE IN APA is
arguing that it is okay to use PHOBIAs [sic], PAINFUL STRESS POSITIONS,
WATERBOARDING, DISROBING, EXTREME TEMPERATURES, ETC.
ETC., IN INTERROGATIONS. THIS IS NOT WHAT THE DEBATE IS
ABOUT—THERE IS NO ‘IT SHOULD BE OKAY TO MAKE SOMEONE
STAND FOR 4 HOURS’ CONTINGENT IN APA. ALL AGREE THAT
THESE TECHNIQUES ARE UNETHICAL, AND THAT NEEDS TO BE
MADE VERY CLEAR IN THE ARTICLE!”1871
Less than twenty minutes later, Behnke sent Levine another email, in which he stated that
while people might criticize APA for not communicating “quickly or clearly enough”:
What is absolutely false and incorrect is that there is any group of APA members
in favor of these techniques, or that the Ethics Committee in its
commentary/casebook will leave any room for such techniques
EVERY
MILITARY PSYCHOLOGIST WITH WHOM I HAVE SPOKEN WOULD BE
IN VIRTUALLY COMPLETE AGREEMENT WITH REISNER, ZIMBARDO,
ET AL., ON WHAT SPECIFIC TECHNIQUES SHOULD BE PROHIBITED.1872
The next day, Behnke followed up with another email to Levine and emphasized once again that
“the APA membership is in near total agreement on what specific techniques should be
prohibited: Reverse SERE techniques, waterboarding, forced nudity, painful body positions, the
use of phobias, extreme temperatures, ‘torture light,’ etc., etc. As I say, in the
casebook/commentary the Ethics Committee will make clear that all such techniques are
prohibited, and there is no voice in APA to argue in favor of such techniques—it’s simply not an
issue.”1873 The conversation continued in this vein over the next few days, with Behnke
repeatedly insisting that an Ethics Committee commentary/casebook would be out “very soon”
And would address Levine’s questions about prohibiting specific techniques.1874 No such
commentary was produced until 2011, five years later, when the Ethics Office posted a collection
of vignettes to its website.
Whether it was in direct response to Altman’s proposed moratorium, or in light of
mounting pressure from journalists like Levine who pushed for the APA to be clearer on its
stance with respect to specific interrogation techniques, Behnke started contemplating whether to
issue a statement from the Ethics Committee on specific techniques. As with other matters,
1870 APA_0061806.
1871 Id. (emphasis in original).
1872 Id. (emphasis in original).
1873 Id.
1874 APA_0061779.
398
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
Behnke checked in with Banks first to make sure he approved. A few days after his exchange
with Levine, on September 17, 2006, Behnke contacted Banks to ask whether it “would present
any problems” for him if APA adopted a resolution “in terms of what is
prohibited/permitted.”1875
Behnke added: “I assume not, but let me know.”1876 Presumably,
Behnke assumed that an APA pronouncement against a specific set of techniques would not be
problematic for Banks because Behnke knew the Army had just released its own list of banned
techniques. Only ten days earlier, when Behnke and Banks exchanged emails on the topic of the
newly revised Army Field Manual, Behnke exclaimed “[e]xcellent news … How can I get a
copy.”1877
The newly-approved Army Field Manual on Human Intelligence Collector
Operations 2-22.3, issued in early September 2006, had set out a list of prohibited interrogation
tactics.1878
Although Sidley does not have a record of Banks sending Behnke the Manual, it is
clear that Behnke obtained it because he forwarded a link to the Manual to Koocher on October
3, in preparation for one of Koocher’s media appearances.1879 In his email to Koocher, Behnke
said the Manual showed “very positive developments in terms of identifying specific techniques
that are ethical and unethical.”1880
Banks responded to Behnke’s query about prohibiting techniques by agreeing it would be
fine as long as APA “adopt[ed] a resolution that endorse[d] the new manual.”1881 However,
Banks cautioned that “you may want to be very careful about not inadvertently limiting what
police or other law enforcement psychologists can do. DoD psychologists will abide strictly by
the manual.”1882 Banks further elaborated on the Manual in an October 4, 2006 email to Behnke,
explaining that even though the Army Field manual contained a list of “prohibited actions” that
could not be used “in conjunction with intelligence interrogations,”1883 and “although the
revisions are substantial, at least in explicating do’s and don’ts[,] [t]he techniques really haven’t
changed much. The ugly truth is that it is a MUCH better read, with much better explanations,
but little substantial change.”1884
Behnke responded to thank Banks for his explanation and to
“certainly let [him] know if there is anything we can do here in the APA Ethics Office to support
you and your colleagues in the incredibly challenging and important work you all are doing.”1885
1875 APA_0061765.
1876 Id.
1877 Id. Behnke eventually requested the link to the Manual from Banks because Behnke could not access
the Army home page.
1878 FM 2-22.3 Human Intelligence Collector Operations, available at
1879 Id. Behnke eventually requested the link to the Manual from Banks because Behnke could not access
the Army home page.
1880 APA_0088218.
1881 Id.
1882 APA_0088218.
1883 APA_0093472.
1884 APA_0613995.
1885 APA_0613995.
399
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
The concept of listing and restricting specific interrogation techniques is something
Behnke had staunchly resisted a year earlier during PENS. In a sharp turnaround, it appears
Behnke became comfortable proposing and supporting a resolution prohibiting particular
techniques only after the Army adopted a Field Manual restricting certain harsh techniques and
Banks pre-cleared his proposed straegy.
On October 23, 2006, Behnke informed Banks that the Ethics Committee was meeting
during the last week of the month—in a few days—to discuss whether to support a statement
condemning specific psychological methods used in interrogation, including sensory deprivation,
sleep deprivation, stress positions, sexual shaming, exposure to extreme temperatures, and
waterboarding. Specifically, Behnke stated that the Ethics Committee was going to consider six
points that Mike Wessells had identified after Behnke requested his thoughts on what a “simple
one-page statement” on ethics and interrogation would contain.1886 Behnke sent Banks the
points Wessells had proposed, with only minor changes: (1) recognition and condemnation of the
use of specific psychological methods; (2) explicit recognition that methods such as
waterboarding and prolonged sleep/sensory deprivation constitute torture; (3) expression of
strong concern that certain methods are still used by the CIA and groups to whom interrogations
may be outsourced; (4) recognition that psychologists have an obligation to report these methods
if they see/hear/suspect/know of their use; (5) strong expression of commitment to international
human rights obligations as defined under the Convention Against Torture (“CAT”) or Geneva
Conventions; and (6) strong call for psychologists not to participate in interrogations or be on
sites that have operated outside of the Geneva Conventions, including Guantanamo Bay.1887
Behnke told Banks that his sense was that the Ethics Committee could support all of
these statements, with the exception of the last point.1888 Banks responded that an
OSTG/MEDCOM Policy statement had finally been signed and said that it would be “helpful if
the Ethics Committee could review a copy of it before they make another statement.”1889 Banks
also added comments after each of the proposed statements Behnke had sent to him. As to the
first statement, Behnke expressed the following reservation:
This statement could be interpreted to be fairly restrictive, depending on how
“sleep cycle inversion” is defined. Is it ethical to question someone at 3:00 AM?
One could read this to imply that it is unethical. Generally speaking, I concur
with the prohibition against using sleep deprivation as a technique, but the devil is
in the details, and the more that the committee says, the more details are out there
for someone to use against US soldiers.1890
1886 APA_0062998.
1887 APA_0061358.
1888 Id.
1889 APA_0088823.
1890 Id.
400
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
Banks “concur[red]” with the second statement, adding that “[t]hese are already
prohibited by the FM [Field Manual].”1891 To the third statement, he commented that he had “no
knowledge of anything referenced … I am only concerned with the proper use of legal
techniques, as laid out in the new FM.” He found the fourth statement to be “consistent with the
TF report, unless we are now defining ‘these methods’ to include what time of day we question
someone.” In response to the fifth statement, he said that the “US is a signatory to both [CAT
and Geneva Conventions]. Therefore they are US law. If you want to again state that
psychologists must abide by US law, then OK.” As a postscript, Behnke joked about the
repetitiveness Banks alluded to, asking over and over whether the Committee should state that
“psychologists must abide by US law.”1892 And, as Behnke predicted, Banks had a strong
response to the proposed sixth statement, which essentially called for a moratorium of
psychologists participating in interrogations or “be[ing]” on sites that do not operate consistent
with the Geneva Conventions:
As you are aware, this statement is more than a killer, it is grosslyinaccurate [sic],
and demonstrates a very simplistic (if not juvenile)understanding [sic] of the
issues. If any statement similar to this came out of the ethics committee, it
would have very negative repercussions.1893
Banks concluded his comments by stating that “[w]ith the exception of the last (really
silly) statement, I generally see no problem with the rest, other than the comment about ‘sleep
cycle inversions.’ I am not sure what that actually means, and would be afraid that it could be
interpreted in a very broad manner.” Behnke thanked Banks for his comments and changed the
statement regarding sleep deprivation, stating that “[i]n terms of the sleep issue, I think we will
likely use something on the order of ‘depriving an individual of necessary sleep for the purpose
of eliciting information,’ or something of that nature. Would that sound okay?”
Banks responded to Behnke’s amended language on “the sleep issue,” stating that
“‘depriving an individual of necessary sleep for the purpose of eliciting information’ sounds
pretty good at first blush. Necessary sleep obviously doesn’t imply ten hours a day, but the
statement does appear to meet the intent of those who want to make sure we don’t abuse people.
As always, your writing is concise and clear.”1894 As had become a pattern, Behnke sought pre-
approval of his statements and conformed APA’s policy to Banks’s suggestions.
Behnke then asked Banks how he could obtain a copy of the OSTG/MEDCOM policy
and on Banks’s advice subsequently submitted a formal request for it.1895 Behnke received a
copy of the OSTG policy statement from Banks on October 26, 2006, the first day of the Ethics
Committee’s four-day meeting.1896 According to the minutes for the meeting, the Committee, as
1891 Id.
1892 Id.
1893 Id. (emphasis added).
1894 Id.
1895 Id.
1896 APA_0088765.
401
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
the “lead group” for Altman’s resolution, reviewed and discussed the proposed resolution. On
October 31, Banks wrote to Behnke to ask how the policy, which Bruce Crow had sent the
previous day to Koocher and Behnke (copying Banks and Dunivin), had been “received” and
whether it “help[ed] with the deliberations.”1897 Behnke responded that “it blew the Committee
away that the PENS report was appended to the document.”1898 This series of communications
shows that Behnke sought Banks’s approval for every turn of phrase he might suggest to the
Ethics Committee in regard to this topic and that Banks and Behnke worked together to ensure
that the Ethics Committee did not take any positions that undermined the policies adopted by the
military.
After the Ethics Committee’s meeting at the end of October, and after consulting with
Banks, Behnke sent Altman a letter from the Ethics Committee on November 1, 2006 and stated
that they were “eager to engage in a dialogue with [Altman] over what the Committee views as
the item’s central ethical issues.”1899 The letter noted several issues: 1) the Committee was
uncertain as to the intended scope of “U.S. detention centers” and believed that it could be
interpreted to include psychiatric hospitals, jails and prisons, or immigration centers; 2) the
Committee was unclear which group of individuals Altman wished to identify as “foreign
detainees”; 3) the Committee wanted Altman to explain what he thought his proposal could
achieve that the August 2006 Council Resolution did not; 4) the Committee asked why Altman’s
proposal focused on the nature of a setting rather than specific behaviors; 5) the Committee
questioned why the decision to work in the settings set forth in the proposal cannot be made by
an “ethically-minded psychologist who fully supports and desires to abide by all of the relevant
APA statements and resolutions”; 6) the Committee wanted Altman to distinguish between a
political basis for his proposal and an ethical basis; and 7) the Committee wanted a better
understanding of the implications of setting such a precedent and how establishing a moratorium
based on location might preclude psychologists from practicing in other settings.1900
Later in November 2006, Behnke again reached out to Banks to see if he would have any
objection to an APA statement condemning the use of psychology or psychological techniques
for the purpose of torturing or abusing any individual.1901 At this point, Behnke was still
reviewing Altman’s resolution and on November 23, 2006, he asked Banks to help formulate an
Ethics Committee response to a November 5 letter from Altman. In the letter, Altman responded
to several points raised by the Ethics Committee and identified several additional issues,
including: 1) in a situation where there is an inconsistency between the human rights standards of
the United Nations and those of the U.S. government, there should be clear guidance to
psychologists who may be caught between differing standards; and 2) certain ethical standards,
such as 1.02 and 1.03, should be revised so that lawful U.S. orders do not trump ethical
principles and psychologists’ commitment to international law. In his comments, Banks stated
that there were “several logical flaws” in Altman’s argument, most significantly Altman’s “lack
1897 APA_0088710.
1898 APA_0063063.
1899 APA_0063721; APA_0063722.
1900 Id.
1901 APA_0064066.
402
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
of faith in the U.S. political system,” and his position that the APA should “categorically side
with ‘international law.’”1902 He also stated that Altman failed to address the “ethical
responsibility we have to society,” and failed to recognize that it is “ILLEGAL for a soldier to
disobey a legal order. . .” Banks warned that Altman was essentially arguing that soldiers should
disobey legal orders, and that this would be “dangerous ground that he, and potentially APA, are
treading.”1903 Finally, Banks commented that he could “foresee very unpleasant results, both to
the profession and to APA” if APA were to accept Altman’s position on international human
rights laws governing the conduct of APA members, warning that “[w]e run the risk of becoming
as impotent as anthropology.”1904 Interestingly, when Sidley spoke to Nancy Sherman, the Chair
in Ethics at the United States Naval Academy, she commented that all military personnel have a
duty to abide by their moral conscience and to “never accept an order [they] believed to be
immoral.” In fact, Sherman stated that soldiers had a moral obligation to “question orders, right
up the chain of command, and disobey orders if [they] must, if they think an order involves
immorality.”1905
Altman and the Ethics Committee exchanged several additional letters between
November 2006 and January 2007, in which the Committee continued to express concerns about
the scope of Altman’s proposed moratorium and seemed generally unsupportive of the
resolution. Based on a review of the email traffic during this time, it looks like the Ethics
Committee mostly communicated via teleconferences, and did not hold in-person meetings to
discuss Altman’s proposal.1906 The proposal of drafting a statement or a commentary/casebook
on the use of specific interrogation techniques seems to have dropped off the Committee’s (and
Behnke’s) agenda and Sidley did not find any relevant email discussions on this topic. It was not
until March 2007 that the issue of drafting a statement on specific interrogation techniques
resurfaced. On March 13, 2007, Behnke requested Banks’s feedback on a draft titled “Statement
of the APA Ethics Committee” that articulated a broad position statement and asserted an
“absolute prohibition against the use of” certain techniques. He asked Banks to “make sure
we’re okay.”1907 A portion of this statement ultimately became the basis for the substitute motion
(“substitute motion #2”) that Behnke drafted for the Board in June 2007, which was proposed as
an alternative to Altman’s substitute motion #1. The next day, Banks sent Behnke changes, after
which Behnke responded, “I’ve tweaked in light of your comments; could you take a second
gander?” In response, Banks lauded Banks as a “silver tongued devil” and said he was humbled
1902 APA_0090008.
1903 Id.; APA_0090009 (emphasis in original).
1904 APA_0090009.
1905 Sherman interview (May 19, 2015)
1906 The Ethics Committee held a teleconference on December 12, 2006. Several members of the Ethics
Committee expressed concerns about Altman’s proposal. APA_0063872. For example, Connie Chan
stated that the moratorium would prevent psychologists from participating in “ANY situation where they
might be helpful or advise against certain behaviors in interrogations. And if they do, what will be the
recourse?” APA_0089773. Brad Johnson noted that the “net effect is that the Ethics Committee would
have a very difficult time understanding what we are prohibiting.” APA_0089774.
1907 APA_0064540; APA_0065451.
403
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
by Behnke’s changes.1908 This iterative process is yet another demonstration of the close
coordination between Behnke and Banks to craft statements protective of DoD’s policy
preferences.
By March 19, 2007, the Ethics Committee had approved the final draft of the statement.
Behnke forwarded the final draft to Banks in an email titled “Final check,” pointing his attention
to a specific statement that the Committee “wanted to ensure that the statement would not cause
a problem for SERE training.”1909 Later that day Banks responded, telling Behnke “Good job. I
should have caught that. Thanks for showing it to me.”1910
During his interview with Sidley, Behnke stated that his focus on addressing specific
techniques from an ethical perspective was prompted by his attendance at a program hosted by
the Wright Institute in March 2007, at which Alfred McCoy talked about certain interrogation
techniques that were consistently used throughout history. According to Behnke, his own
thinking about the issue of specificity “shifted” at that point, and he decided that specific
techniques may need to be addressed. But, as the email traffic shows, Behnke actually began
considering prohibiting specific techniques much earlier in October 2006, and that the first step
he took was to check in with Morgan Banks to determine whether this would be a problem for
DoD.
At the same time he started drafting the Ethics Committee statement, Behnke also worked
behind the scenes to generate opposition to the proposed resolution that Altman eventually
presented at the Consolidated Meetings on March 23-25, 2007. Behnke coordinated with
Michael Gelles, Banks, and APA staff members to draft letters, which would go out under
others’ names, that argued against the resolution.
For example, as early as March 7, 2007, Behnke composed a draft letter addressed from
Michael Gelles to the presidents of the Divisions for Social Justice, Division 19, Division 48,
Altman, and Moorehead-Slaughter. A second version of the letter dated March 11 showed
substantial revisions.1911
On March 11, Behnke sent the revised version to Heather Kelly in an
email with subject line “Let me know— ”.1912 On the same day, he sent the draft to Rhea
Farberman, stating that “attached is a letter from Mike Gelles to the people working on the Neil
Altman (moratorium) resolution. Could you read and let me know what you think?”1913
Although the letter was written in Gelles’s voice, an email from Behnke to Gilfoyle with the
subject “Need your eye…” makes clear that Behnke, not Gelles, was the original author of the
letter:
1908 APA_0090077.
1909 APA_0064479; APA_0064480.
1910 APA_0091092.
1911 See “Compare Gelles Original to Gelles First Edits by Behnke” (on file with Sidley).
1912 APA_0064648; see “Compare Gelles SB First Edits to SB Second Edits” (on file with Sidley).
1913 APA_0064642.
404
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
Mike G. has edited the letter I wrote—wanted to put it into his own words. I’ve
edited his draft—I think this will do what we want. Could you read and see
whether you hear any sour notes?1914
In several interviews, neither Behnke nor Gilfoyle said they remembered any actions
undertaken by APA staff in opposition to Altman’s 2007 resolution. Indeed, Behnke stated
repeatedly to the interview team that he worked with all sides to try to work toward or with the
“common ground” or a “middle way.”1915 However, it is clear that Behnke ghostwrote a letter in
direct opposition to the Altman resolution to pursue his own agenda.
Later the same day, Gilfoyle wrote back and embedded a comment, here italicized and
bolded for the reader’s reference, in the draft letter:
Rather than focus on what psychologists cannot do, I would respectfully suggest
that it would now be more productive for APA to write a resolution [??? Could
he just say “provide guidance on”—do we want or need a resolution that parses
ambiguous situations?] that focuses on promoting ethical behavior, addresses
what psychologists in challenging and ambiguous ethical situations may do to
ensure they remain firmly within the bounds of our ethics, and specifies what we
as colleagues can do to support their efforts.1916
Behnke incorporated Gilfoyle’s comment and sent a draft of the amended letter to
Jennifer Bryson.1917 He also sent an updated version to Kelly1918 and Farberman.1919 He sent
another amended version on March 12 to Kelly1920 and on March 13 to Farberman.1921 Finally,
on March 14, Behnke emailed Farberman, copying Pamela Willenz, Manager in the APA Public
Affairs Office, to further plan the impact of Gelles’s letter:
Rhea, when Mike Gelles sends his letter to Neil Altman and Olivia, Olivia is
going to distribute to individuals and groups working on the resolution. While
many people have heard of Mike, many have not. Do you think it would make
sense, when Olivia forwards the letter (the letter will be a pdf file), for her also to
forward the Boston Globe article below (again as a pdf),1922 for people who don’t
1914 APA_0064646.
1915 Behnke interview (June 8, 2015).
1916 APA_0090162; APA_0090163.
1917 APA_0064638.
1918 APA_0064632.
1919 APA_0064614.
1920 APA_0064599.
1921 APA_0064572.
1922 Charlie Savage, Abuse led Navy to consider pulling Cuba interrogators, Boston Globe (Mar. 16,
2005), available at
g_cuba_interrogators.
405
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
know about Mike to read and know who he is/what he did? It will definitely set a
context for the letter. . . 1923
Farberman responded:
Steve—I understand what you are trying to achieve but I think attaching the news
article might turn people off. How about Olivia attaching a short cover memo to
Mike’s letter that give the “facts” of Mike’s intervention at Gitmo—to put this
letter and his knowledge of the issue in context, etc.1924
Despite Farberman’s response, Willenz emailed Behnke back to say that she called the Globe
about “making a pdf of this article and distributing it. It may take day or two for them to
respond.”1925
On the morning of March 14, Behnke attached a signed version of the letter dated March
16 to an email to Kelly that read:
Mike Gelles, as many of you are aware, is an APA member who brought abuses
at Guantanamo Bay to the attention of his superiors. Dr. Gelles’ actions have
been discussed in the media and described by medical ethicist Steven Miles as a
“successful medical protest of prisoner abuse.” Attached please find a letter Dr.
Gelles has written regarding the moratorium resolution.1926
On the same day, Behnke sent the signed letter to Ellen Garrison, asking her to “[p]lease
let me know what you think.”1927 That evening, Behnke sent a version of the letter to Gelles,1928
and later that evening, Gelles sent a version of the letter, signed and dated March 14, to Altman
and Moorehead-Slaughter.1929 There was no indication in Gelles’s cover letter that Behnke had
drafted and provided heavy revisions to the letter, or that other APA staff had reviewed and
commented on it.
Moorehead-Slaughter then sent Gelles’s letter to Judy Strassburger with the following
introductory note:
Dr. Mike Gelles is an APA member whose actions at Guantanamo Bay, calling
abuses to the attention of his superiors, resulted in what medical ethicist Steven
Miles has called a “successful medical protest of prisoner abuse.” Dr. Gelles’
actions have been discussed in the press, including in the New Yorker Magazine.
1923 APA_0621013.
1924 APA_0090107.
1925 APA_0621012.
1926 APA_0064562; APA_0064563.
1927 APA_0064556; APA_0064557.
1928 APA_0064543; APA_0064544.
1929 APA_0090065; APA_0090066.
406
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
Attached please find a letter Dr. Gelles has written regarding the moratorium
resolution.
I thought the Board of Directors would have an interest in hearing Dr. Gelles’
perspective.1930
Again, the cover email gave no indication of Behnke’s or APA’s role in authoring Gelles’s letter.
On March 15, 2007, Behnke and Gelles exchanged emails discussing the importance of each
other’s work and contributions. Gelles encouraged Behnke to “reach out to Mora,” and Behnke
told Gelles that his “letter lends itself to an excellent op-ed, or an article.”1931
On March 18, Altman sent an email to Moorehead-Slaughter and Gelles, appending “a
draft of my response to Mike's letter. I may want to tweak it a bit until tonight, but I wanted to
give you a sense of the drift of my thoughts. If possible, I'd appreciate it not being sent out till
Monday, but if it has to go ou[t] today, it[’]s OK to send this out.” The next day, Altman sent
the exact same email to Moorehead-Slaughter and Behnke with his draft attached.1932
Less than four hours after receiving it, Behnke forwarded Altman’s proposed response to
Gelles’s letter to Morgan Banks. Behnke asked Banks for “two to three examples of factual
inaccuracies to include in a draft response,”1933 adding that “[i]f you keep it between us at the
moment, that would be much appreciated.”1934 Clearly, Behnke sought Banks’s help in
dismantling Altman’s draft response to Gelles as he had done many times before. Banks
responded on March 20, 2007 with 17 comments that pointed out areas of disagreement with
Altman.1935 In his cover email, titled “Eyes Only,” Banks said that for personal reasons1936 he
was working from his home account “ and will destroy it [the document] once you [Behnke] tell
me you have received it.”1937
On March 19, Gelles sent Behnke a draft response to Altman’s letter, explaining:
I would like to respond in particular to the inaccuracies and misunderstanding that
I suspect comes from media coverage and stories that have become distorted and
outdated over time. As you know, there has been significant progress made with
1930 APA_0091064; APA_0091065.
1931 APA_0064501; APA_0064502.
1932 APA_0091089; APA_0091090.
1933 APA_0064477.
1934 Id.
1935 APA_0091067; APA_0091068.
1936 Banks explained to Behnke the personal reasons why he was working from home. The circumstances
are not relevant to this inquiry. APA_0091067.
1937 Id.
407
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
the help of APA and others in this area with psychologists who continue to
conduct consultation.1938
Behnke prepared to distribute Gelles’s letter more widely, forwarding Gelles’s proposed
response to Farberman and asking her to “[p]lease review” it and the cover email Behnke drafted
for Council under Moorehead-Slaughter’s name.1939
On March 20, 2007, with some minor
edits, Moorehead-Slaughter sent the text Behnke drafted for her to the Council listserv. When
Dunivin congratulated Gelles on the letter, Gelles responded that he was “committe[d] to do
whatever I can to help “you and our colleagues.”1940 On April 4, 2007, Behnke reviewed and
edited another letter from Gelles, noting that he opted to keep “the ideas we [Behnke and Gelles]
discussed.”1941
Behnke added that “[w]e’ll have this off our desks by the end of the week.”1942
Behnke sent a draft to Farberman, who provided edits,1943 and on April 5, 2007, Gelles circulated
the letter .1944
On April 16, 2007, Altman reached out to Behnke and Moorehead-Slaughter about a
“new idea” he had discussed with to Steve Sellman from Division 19. Altman wondered if there
was a way to “add wording that would make it clear that those who vote for the resolution
respect the right of those who choose to continue working at the detention centers, even as they
disapprove of the legal framework within which the centers operate.” Behnke told Altman that
his idea might offer some “very fruitful possibilities” for moving toward a consensus position.
Seizing the opportunity offered by Altman’s approach, just a few minutes later, Behnke
forwarded Altman’s email to Sellman and Moorehead-Slaughter, noting that it was a good sign
that Altman may be open to considering language that other governance groups, “especially
Division 19,” would be able to support.1945 Behnke wondered if it “may be time to roll up our
sleeves.”1946
Much as he did with Gelles, Behnke also worked with Larry James to oppose the
proposed moratorium. On April 23, 2007, Behnke asked James for biographical information for
a program for the 2007 Convention, and James responded he will be deployed during that
time.1947
Responding to the same thread, but changing the subject of the email to “Eyes Only,”
Behnke stated:
1938 APA_0091083.
1939 APA_0091086. Farberman provided “[t]wo small edits.”
1940 APA_0090981.
1941 APA_0065554; APA_0065555.
1942 Id.
1943 APA_0091238.
1944 APA_0091217.
1945 APA_0065426.
1946 Id.
1947 APA_0065260.
408
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
As you know, there remains considerable passion at APA regarding the issue of
interrogations. You've not mentioned where you'll be deployed. My question is
this. By the time convention arrives, or shortly before, would it be possible for
you to write an open letter to APA, without providing any classified information
or even revealing where you are, that says you are now in a setting working with
interrogators and are successfully representing the position advanced by APA:
That ethical and effective interrogations are based on building relationships and
preclude any type of abusive behavior
Based on your first-hand knowledge
of detention facilities and of the processes that govern interrogations, the most
ethical stance APA can take is to remain fully engaged in consulting to
interrogations, and that you write to convey how successful APA has been in
promoting the practice and theory of "ethical* [sic] interrogations.
I would, of course, be happy to work on language with you. Yours is a very well-
respected voice in the association. Would this be possible for you to consider?1948
James responded “[s]ure.”
This detailed outline from Behnke sets forth the points he wanted to emphasize at the
Convention months before it took place, including that “the most ethical stance APA can take is
to remain fully engaged in consulting to interrogations” and that APA has been successful “in
promoting the practice and theory of ‘ethical’ interrogations.” A review of the email traffic
between April and August 2007 shows that Behnke drafted such a letter in James’s name and
sent it to him to review on June 18, 2007.1949 As was Behnke’s usual practice by this point, he
had sent a draft of the letter to Banks for review earlier in the in an email titled “Confidential:
Please read and delete,” asking Banks if the letter “look[ed] ok.”1950 In response, Banks sent
Behnke the Department of the Army Inspector General’s Detainee Operations Inspection
Report.1951
Without making any changes to the letter, James sent it to Sharon Brehm on June 19,
2007, and Brehm then forwarded the letter to Behnke, Farberman, Anderson, and
Strassburger.1952
There is no indication that Brehm, or any other APA staff member, was aware
that Behnke had been the original author of this letter. On June 23, 2007, Dr. Melba Vasquez
posted an open letter to James in response to his own letter, expressing support for him and his
work.1953
In addition to individual member comments, APA committees and governance groups
also issued comments to Altman’s resolution. On April 16, the Board of Educational Affairs
(“BEA”) issued a memo on Altman’s proposed resolution. The BEA noted that it would like to
hear from military psychologists concerning whether they believe the protection envisioned by
1948 Id.
1949 APA_0066662; APA_0066663.
1950 APA_0066700; APA_0066701.
1951 APA_0097864.
1952 APA_0097704.
1953 APA_0097562.
409
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
the resolution was appropriate or needed. The BEA also stated that it would like to receive input
regarding APA’s role in reconciling U.S. laws and international human rights standards, and to
inquire as to whether there is any precedent for APA to request or require its members to remove
themselves from contexts in which there is potential inconsistency between U.S. law and human
rights standards.1954
While the BEA suggested these as areas of further development, it did not
recommend a wholesale adoption or rejection of Altman’s resolution.
On April 23, 2007, the representative from the Board of Professional Affairs (“BPA”)
sent Behnke the unapproved minutes related to the consideration of Altman’s resolution at the
March Consolidated Meetings. According to the minutes, the BPA found that Altman’s
resolution was insufficient for three reasons: (1) the intent of the resolution appeared political in
nature rather than principally focused on the welfare or activities of psychologists; (2) the tone
and focus of the resolution impugned the ethics and engagement of the work of military and
career psychologists at the detention centers without direct knowledge or specific instances of
how their work was, perhaps, compromised; and (3) the resolution did not build in protections
for psychologists who were appropriately engaged in work at the detention centers, and thus,
might do more harm than good. The BPA recommended that the resolution be withdrawn and/or
rejected.1955
On the same day, the Committee on Ethnic Minority Affairs (“CEMA”) issued its memo
on the proposed resolution and noted that the resolution had raised broader issues about the role
of psychologists in various detention facilities, including those in the context of law enforcement
and correctional entities. As a result, CEMA recommended that the resolution be returned to the
movers so that it could be “significantly expanded to address the broader issues raised by
CEMA.”1956
On April 26, 2007, COLI submitted it is preliminary comments to the proposed
resolution, with a note that it would submit more extensive comments once the full Committee
had an opportunity to review the resolution. COLI objected to the resolution for the following
four reasons: (1) COLI had serious reservations about the APA setting forth legal criteria for
when psychologists may engage in a particular area of practice; (2) the resolution sponsor had
been explicit that the resolution had a “political basis” and Council resolutions are not the
appropriate place to make political statements; (3) the resolution was described as intended to
“protect” members of a community, but representatives of that community were indicating that
the resolution in its current form would likely be harmful in their efforts to promote the ethical
practice of interrogations; and (4) the resolution did not address conditions of confinement,
treatment, or interrogation in US correctional facilities, which have been described in official and
media reports as rising to the level of torture or cruel, inhuman, and degrading treatment.1957
Board for the Advancement of Psychology in the Public Interest (“BAPPI”) also issued
its own memo on the proposed resolution. BAPPI stated that APA should focus on: (1) the
1954 APA_0091333.
1955 APA_0091444.
1956 APA_0091333.
1957 APA_0091385; APA_0091386.
410
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
immediate development of an ethical casebook as originally intended; (2) the dissemination of
the original resolution affirming APA’s clear and unequivocal position against the use of torture
and other cruel, inhuman, or degrading treatment or punishment at detention centers; and (3) the
communication to the public of a clear message about fundamental human values on which
psychological research, practice, and consultation are based and evaluated. As a result, it could
not support Altman’s proposed moratorium because it would be “impractical since it will not
speed up the development of a case book, nor will it protect psychologists in the military from
penalties for refusing to follow lawful orders, nor will it ensure legal defense or ethical guidance
to psychologists in the military.”1958
In late April, Behnke drafted a letter to Altman, under Moorehead-Slaughter’s name, to
provide Altman with an update on the review of the proposed resolution.1959 A final draft of the
letter was sent to Moorehead-Slaughter on April 26, 2007 and she sent it to Neil Altman later
that same day, without any changes.1960 The letter offered Altman three options: (1) proceed
with the normal governance process of review under the Ethics Committee as the lead
governance group, with a recommendation to the Board for its June meeting; (2) assess the
likelihood of reaching consensus on the resolution before Council meets in August, with the
intent of having Council suspend its rules to review the resolution without the Board’s June
review; or (3) move the resolution forward through another round of consolidated meetings in
the fall of 2007 to allow the various governance groups more time to discuss and review the
issues. The letter encouraged Altman to pursue option number three and to work together with
the governance groups, Division 19, and COLI to reach a consensus on the resolution.1961 A
conference call was scheduled on April 29 between Altman, Moorehead-Slaughter, Behnke,
Robin Deutsch (Chair of the Ethics Committee), and Paul Donnelly. At the end of the call,
Altman decided to move forward with presenting the resolution to the Board of Directors and the
Council, with or without endorsement from the Ethics Committee and the various governance
groups.1962
In an email from Moorehead-Slaughter to Altman on May 3, 2007, which was again
entirely drafted by Behnke, Moorehead-Slaughter confirmed that the Ethics Committee would
proceed to review the resolution and make a recommendation to the Board.1963
The Ethics Office received COLI’s substantive review on May 3, 2007. COLI stated that
the resolution was “flawed” because:
U.S. law, international law, and APA policy are consistent with regard to their
prohibition against torture and cruel, inhuman, and degrading treatment and
punishment. Thus, there is no legal ambiguity with regard to permissible and
impermissible behavior in which psychologists can engage at U.S. detention
centers holding foreign detainees. Rather[,] the inconsistency between U.S. law
1958 APA_0091333.
1959 APA_0065258.
1960 APA_0091331; APA_0091332; APA_0091890.
1961 APA_0091890; APA_0091891.
1962 APA_0091726.
1963 APA_0091903.
411
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
and international law refers to whether a prosecuting authority is able to charge
someone with a ‘war crime.’ This decision falls outside the scope of
responsibility of psychologists practicing at U.S. detention centers. . . and
therefore does not affect the standard of behavior to which they are held.
In addition to the absence of a substantive legal argument to justify the
Moratorium Resolution, the resolution as written would not achieve Dr. Altman’s
stated objectives, and may in fact do greater harm to the psychologists practicing
in U.S. detention centers holding foreign detainees, as well as the detainees
themselves. Further, Dr. Altman has asserted no evidence to support the
Moratorium Resolution and as such seems to be asking APA to make a political
1964
statement on the basis of an inaccurate analysis of the legal context
On May 9, 2007, the Ethics Committee held a conference call to discuss the resolution. It
is clear from the email traffic that the Ethics Committee did not support, and had no plans to
support, Altman’s resolution at the upcoming Council meeting. In an email from Norman
Abeles to Behnke on May 11, 2007, Abeles stated “[o]n reflection I think we should be OK at
Council in San Francisco. I do think COR members will be positively influenced by the board
and committee support we received and will vote down Altman’s resolution.” Behnke responded
that he agreed with Abeles’s email and that the resolution “will get a few votes, but with no
governance group in support, it’s very difficult to imagine Council will adopt.”1965
Although the March emails discussing a proposed Ethics Committee statement on
specific interrogation techniques indicated that the statement was “final,” discussions between
Behnke and Banks picked up again two months later. On May 15, 2007, Behnke emailed Banks
again, with a slightly revised version of the previous statement and asked Banks if this “would be
okay from [his] perspective.” Behnke noted that he tried to emphasize that the behaviors
identified “are when applied to incarcerated or detained individuals, and that these behaviors are
prohibited when they are used as an interrogation approach or technique (and are thus not merely
incidental to the incarceration/detention).”1966
The full statement was as follows:
The American Psychological Association has made no less than five statements
regarding its absolute and unequivocal prohibition against torture. These include
Against Torture: Joint Resolution of the American Psychiatric Association and
American Psychological Association (1985); Resolution Against Torture (1986);
the Report of the Task Force on Psychological Ethics and National Security
(2005), motions passed by the Council of Representatives in 2005, and the 2006
Resolution Against Torture and Other Cruel, Inhuman, or Degrading Treatment
or Punishment. Based on these actions, the APA Ethics Committee further
elaborates its position:
1964 APA_0091386.
1965 APA_0623988.
1966 APA_0065681.
412
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
Psychologists must never participate in, condone, or in any manner facilitate
torture or other cruel, inhuman, or degrading treatment. This unequivocal
condemnation includes an absolute prohibition against the use of cruel, inhuman,
and degrading interrogation approaches and techniques in order to elicit
information from incarcerated or detained individuals. While neither the list
below nor any list could be exhaustive, the underlying principle is that legitimate
activities, such as eliciting information to prevent acts of violence, do not justify
the use of psychology or psychological techniques that abuse and inflict harm on
individuals. Thus, there is an absolute prohibition against “water-boarding”; mock
executions; sexual shaming and degradation; degradation based on culture,
ethnicity, or religion; sensory deprivation and overload; forced nudity; extreme
temperatures and induced hypothermia; exploitation of phobias; “hooding”; the
use of dogs to threaten or intimidate; stress positions; sleep deprivation; isolation;
or threats to use any of the above, as an interrogation approach or technique.
Psychologists must work in accordance with international human rights
instruments relevant to their roles. In addition, psychologists must have and are
mandated to follow a clear process for reporting when they become aware of acts
of torture or cruel, inhuman, or degrading treatment, or when they have
reasonable cause to suspect that abusive approaches or techniques such as those
identified above are being used. Psychologists never mix the roles of providing
mental health care to an individual and consulting to an interrogation process.1967
On May 16, 2007, Banks responded to provide his “2 cents,” stating that he “reviewed
the document, and bled on it.”1968
On May 16, Behnke also forwarded the same draft statement
to Jennifer Bryson, an interrogator at GTMO, with whom Behnke had a close friendship, and
asked her if there were any problems with it.1969 Bryson responded with several line edits and
suggestions, but did not have any significant substantive comments.
During the June 8-10, 2007 Board of Directors meeting, the Ethics Committee asked the
Board to recommend that the Council reject Altman’s main motion and substitute motion,1970
based on the following four points: (1) the APA had already made no less than five statements
regarding its absolute and unequivocal prohibition against torture; (2) there were other members
of APA who believed that the moratorium would hinder efforts to promote an ethical way of
conducting interrogations; (3) none of the seven governance groups asked to review the motion
supported its adoption; and (4) Moorehead-Slaughter had encouraged the resolution sponsor to
go through another round of Consolidated Meetings to further refine the motion and he had
rejected the idea. Notably, the first of the Ethics Committee’s stated reasons for rejecting
Altman’s motion was taken verbatim from the Ethics Committee statement that Behnke had been
working on with Banks and Bryson earlier in May. In his interview, Behnke told Sidley that all
1967 Id.
1968 APA_0091786; APA_0091787.
1969 APA_0091779; APA_0091780.
1970 APA_0050538.
413
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
of the governance groups had rejected Altman’s motion, but a review of the various governance
group’s memos showed that this was not true. In fact, the BEA stated that they would like to
hear from military psychologists on whether the resolution would serve to protect them, and
CEMA recommended that the resolution be returned to Altman so that it could be “expanded” to
address the issues identified in CEMA’s memo.
During its meeting, the Board approved the suggestion of a substitute motion originated
by the Board, with language to be provided to the Board via email prior to inclusion in the
Council’s agenda for August. Behnke was designated as being primarily responsible for the
item, with Farberman and Anderson providing support.1971 Behnke drafted the substitute
motion, but prior to submitting it to the Board, he circulated the draft to Jennifer Bryson on June
14, 2007,1972 and to Morgan Banks on June 15, 2007,1973 asking if they saw anything
“problematic.” On June 16, Behnke again reached out to Banks, asking “do you have any
problems with including the reference to ‘mind-altering substances’ in the list?”1974 On June 17,
Banks responded to Behnke with his comments on and suggested revisions to the draft
resolution, underlined and bolded here for the reader’s benefit:
BE IT RESOLVED that this unequivocal condemnation includes an absolute
prohibition for psychologists against direct or indirect participation during
interrogation processes in: mock executions; water-boarding or any other form of
simulated drowning or suffocation; sensory deprivation and over-stimulation;
“hooding”; forced nakedness; sexual humiliation; cultural or religious
humiliation; exploitation or exacerbation of phobias or psychopathology such as
severe anxiety or clinical depression; stress positions; the use of dogs to threaten
or intimidate; physical assault, including slapping and shaking; exposure to
extreme heat or cold; induced hypothermia; mind-altering substances used for the
purpose of eliciting information; isolation and sleep deprivation used in a manner
that adversely affects an individual’s physical or mental health; or the threatened
use of any of the above techniques to the individual or to members of the
individual’s family.
His accompanying comment read:
This is tricky. An interrogation may lead to a depressed mood, for a variety of
reasons. An extreme interpretation would prevent a psychologist from making a
detainee homesick, and thereby getting the detainee to talk so he could go home
sooner. I just gave a couple of modifiers off the top of my head. They may not
be the best. I concur that we not increase someone's significant psychopathology,
but I think it is OK to manipulate mild anxiety or sadness.
1971 APA_0091996.
1972 APA_0065900.
1973 APA_0066754.
1974 APA_0066748; APA_0066749.
414
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
Banks also clarified that he had “[n]o issues with [Behnke’s] comment reference [sic] mind
altering substances.”1975
Jennifer Bryson suggested that the following paragraph be removed from the draft
resolution:
BE IT RESOLVED that the American Psychological Association supports
hearings by the United States Congress to examine the perpetration of torture and
cruel, inhuman, or degrading treatment or punishment, including all of the acts
identified above, both physical and psychological in nature, against individuals in
United States custody, for the purpose of ensuring that no individual in the
custody of the United States is subjected to torture or cruel, inhuman, or
degrading treatment or punishment.
She suggested that “instead of looking back[,] [APA should] look forward and do so
substantively and in an informed manner.”1976 Bryson’s comments closely aligned with the
forward-looking consultation-focused approach Behnke had been advocating for years. Bryson
also noted that the following paragraph was “frightening and outside the lane of the APA”:
BE IT RESOLVED that the American Psychological Association, in order that
the rights of all those who are detained or incarcerated are protected, calls upon
the United States government to provide incarcerated and detained individuals
access to courts of the United States through habeas corpus proceedings.1977
Bryson explained that it would be impossible to fight the adversary using the
domestic court system on a case by case basis, and in a subsequent comment clarified that
APA should be careful not to “conflate[e the] two unrelated processes” of intelligence
collection and criminal investigation. Bryson made a number of other comments on
specific resolutions, and offered to show Behnke “the language I came up with for the
JTF GTMO SOP.”1978
After he had already received substantial comments from both Banks and Bryson,
Behnke circulated a draft to an APA staff member, Farberman, for the first time on June 17,
2007. In his email accompanying the draft, Behnke noted several points. First, Behnke stated
that he “strongly” believed that APA would do best by staying away from addressing legal issues
such as the legal status of detainees and their legal rights in a resolution because the “risk of
going outside our competence is high, which would likely not serve APA well” —a point that
was reflective of the comment from Bryson. Second, Behnke noted that the motion “draws
primarily” from two texts: a letter form Len Rubenstein (executive director of Physicians for
Human Rights) to Sharon Brehm, and a SPSSI policy document. Behnke pointed out that the
1975 APA_0097914; APA_0097915; APA_0097916.
1976 APA_0091967.
1977 Id.
1978 Id.
415
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
areas of agreement on this issue “are far greater than” the areas of disagreement. The key
provisions of the substitute motion were as follows:
BE IT RESOLVED that psychologists must work in accordance with international
human rights instruments relevant to their roles including, but not limited to,
Common Article 3 of the Geneva Conventions;
BE IT RESOLVED that the American Psychological Association unequivocally
condemns torture and cruel, inhuman, or degrading treatment or punishment, for
any and all purposes, including interrogation;
BE IT RESOLVED that the unequivocal condemnation includes an absolute
prohibition against psychologists’ planning, designing, assisting or participating
in any activities, including interrogations, which involve the use of torture and
any form of cruel, inhuman or degrading treatment of human beings;
BE IT RESOLVED that this unequivocal condemnation includes an absolute
prohibition for psychologists against direct or indirect participation during
interrogation processes in: mock executions; water-boarding or any other form of
simulated drowning or suffocation; sensory deprivation and over-stimulation;
“hooding”; forced nakedness; sexual humiliation; cultural or religious
humiliation; exploitation or exacerbation of phobias or psychopathology such as
anxiety or depression; stress positions; the use of dogs to threaten or intimidate;
physical assault, including slapping and shaking; exposure to extreme heat or
cold; induced hypothermia; mind-altering substances used for the purpose of
eliciting information; isolation and sleep deprivation used in a manner that
adversely affects an individual’s physical or mental health; or the threatened use
of any of the above techniques to the individual or to members of the individual’s
family;
BE IT RESOLVED that the American Psychological Association calls on the
United States government—including Congress, the Department of Defense, and
the Central Intelligence Agency—to prohibit the use of these methods in all
interrogations and that the American Psychological Association shall inform
relevant parties with the United States government that psychologists are
prohibited from participating in such methods;
BE IT RESOLVED that in writing a casebook and commentary, the APA Ethics
Committee shall set forth guidelines for psychologists working in contexts of war
and imprisonment that are consistent with both international treaties and human
rights covenants, as well as guidelines developed for health professionals,
including but not limited to: Common Article 3 of the Geneva Conventions; The
United Nations Convention Against Torture and Other Cruel, Inhuman, or
Degrading Treatment or Punishment; The United Nations Principles of Medical
Ethics Relevant to the Role of Health Personnel, particularly Physicians, in the
Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman,
or Degrading Treatment or Punishment; The World Medical Association
416
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
Declaration Concerning Support for Medical Doctors Refusing to Participate in,
or to Condone, the Use of Torture or Other Forms of Cruel, Inhuman or
Degrading Treatment; and The World Medical Association Declaration of Tokyo:
Guidelines for Physicians Concerning Torture and other Cruel, Inhuman or
Degrading Treatment or Punishment in Relation to Detention and Imprisonment;
BE IT RESOLVED that the American Psychological Association urges all
psychologists with information relevant to the use of any method of interrogation
constituting torture or cruel, inhuman, or degrading treatment or punishment to
inform their superiors of such knowledge, to inform relevant office of inspector
generals when appropriate, and to cooperate fully with all oversight activities,
including hearings by the United States Congress to examine the perpetration of
torture and cruel, inhuman, or degrading treatment or punishment against
individuals in United States custody, for the purpose of ensuring that no
individual in the custody of the United States is subjected to torture or cruel,
inhuman, or degrading treatment or punishment;
BE IT RESOLVED that the American Psychological Association, in order to
protect against torture and cruel, inhuman, or degrading treatment or punishment,
and in order to mitigate against the likelihood the unreliable and/or inaccurate
information is entered into legal proceedings, calls upon United States legal
systems to reject testimony that results from torture or cruel, inhuman, or
degrading treatment or punishment.1979
Behnke had removed paragraphs that Bryson took issue with, but neglected to include
Banks’s proposed qualifying language of “severe” anxiety and “clinical” depression. Farberman
approved of both the email message and the draft, and Behnke sent them to Brehm, Kazdin,
Koocher, and Anderson (copying Strassburger, Garrison, Farberman, and Gilfoyle) later that
day.1980
In response to a question from Kazdin on whether APA would be overstepping its
boundaries by “call[ing] on the U.S. government …to prohibit the use of these and other
methods…,” Behnke responded that “the reality is that this ‘call’ is completely consonant with
U.S. law and policy already; it would be a bit like saying that APA calls upon the US
government to prohibit all psychologists from engaging in insurance fraud.” As a result, even
though the paragraph “appear[s] to be overstepping [APA’s] bounds,” it “simply reiterates rules
already in place, and offers APA some benefit from a political perspective.”1981
On June 19, 2007, Behnke circulated a new draft of the motion based on discussions with
the group earlier that day. In the attached draft, the following paragraphs were added:
BE IT RESOLVED that the American Psychological Association, recognizing its
own ability to conduct an investigation into events at national security-related
locations is significantly limited because the Association exists as a private entity
1979 APA_0066723; APA_0066724.
1980 APA_0066725.
1981 APA_0066649.
417
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
without subpoena power and because its staff do not have the necessary security
clearances, therefore directs its Ethics Committee to conduct a vigorous and
detailed review of all information in the public domain and all information that
results from investigations and hearings conducted by the United States
government, for the purpose of determining whether any APA member has
engaged in behaviors constituting torture or cruel, inhuman, or degrading
treatment or punishment, including the specific behaviors identified above, and
directs the Ethics Committee to take appropriate action based upon such
information;
BE IT RESOLVED that the American Psychological association commends those
psychologists who have taken clear and unequivocal stands against torture and
cruel, inhuman or degrading treatment or punishment in the line of duty, including
stands against the specific behaviors listed above.1982
Over the next few days, members of the Board approved the substitute motion through an
email vote.1983
On June 26, 2007, Behnke circulated a new draft of the resolution in response to
several suggested edits from Koocher, Grossman, and Anton. Notably, the new draft revised the
paragraph on the Ethics Committee’s ability to investigate allegations to the following:
BE IT RESOLVED that the American Psychological Association encourages any
individual with knowledge that a member of the Association has engaged in
torture or cruel, inhuman, or degrading treatment or punishment, including the
specific behaviors listed above, to provide this information to the Ethics
Committee, and directs the Ethics Committee to take appropriate action based
upon such information.1984
In response to the new draft, Koocher emailed Behnke and noted that the resolution was worth a
“B-” because the “laundry list of torture” remained a problem. Behnke responded to Koocher’s
email and explained that he had listed specific techniques because they have been associated
with the type of torture alleged to have occurred at Guantanamo and Abu Ghraib. Behnke added
that when he spoke to Alfred McCoy earlier in 2007, he was surprised to learn that “there is
indeed a finite list of techniques that seem consistently to recur,” and that because the list will be
immediately recognizable to groups that have been working on this issue in human rights
communities, it will get a positive response from the more moderate individuals “[f]rom a purely
strategic perspective.” Koocher responded: “All I can add—these people lack imagination!”1985
1982 APA_0066576.
1983 Anton (APA_0097519); Kazdin (APA_0097652); Goodheart (APA_0097650); Vasquez
(APA_0097634); Van Sickle (APA_0097593); Haldeman, who noted that he cannot open the attachment
to vote, but that he trusted the rest of the Board wholeheartedly (APA_0097591); Wertheimer
(APA_0097584); Daniel (APA_0097578); and Rozensky (APA_0097488).
1984 APA_0066428; APA_0066429.
1985 APA_0097394.
418
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
During this time, military psychologists reached out to Behnke to raise concerns that a
list of specific techniques would be too “vague.” In July 2007, Maj. Bryan Davidson wrote to
Behnke outlining a number of concerns he had regarding Behnke’s response to a Vanity Fair
article, in which Behnke referenced specific interrogation techniques. Davidson copied Dunivin
on the email to keep the chain of command informed about his statements, and she separately
responded to Behnke and stated: “I can only echo Bryan’s comments below. We really cannot
be put in [a] position of outlining vaguely defined prohibitions. Can you derail that particular
train?” Behnke responded that the issue was a “fast-moving target,” presumably referring the
substitute motion that the Board was considering, and that he will check in with her at the end of
the week when he knows more.1986
On July 23, 2007, the DSJ had a conference to discuss the Board’s substitute motion.
According to a listserv message, the “gist of it all is that all felt that it is a good motion.”1987
However, because the DSJ wanted to propose several amendments to the substitute motion, they
put together a subgroup consisting of Corann Okorodudu, Judy Van Hoorn, Neil Altman, Linda
Woolf, and Bernice Lott to do so. On July 29, 2007, Woolf sent Behnke an email titled “[j]ust
between us elves!” and attached the working draft from her subgroup on the proposed substitute
motion. Woolf told Behnke that they wanted to make sure that the substitute motion “doesn’t
weaken in any way the 2006 Resolution,” and expressed her own opinion that this was not the
place to “discuss changes related to the Ethics Code” or the proposed casebook.1988
On August 1, 2007, Behnke emailed Brehm an update on the various resolutions and
explained that there were four resolutions up for consideration: (1) Altman’s moratorium
resolution; (2) the Board’s substitute motion; and (3) two amended versions of the Board’s
resolution “being worked on by two related but separate groups in the social justice/human rights
community.” Behnke stated that there was a “fairly high” risk that Council was going to be
overwhelmed by the number and complexity of the issues involved, and that without some
direction, Council “simply won’t know what to do.” Thus, Behnke suggested that there be “some
control exerted over this process” to bring a group together during Convention to review draft a
motion that all parties could agree to. He recommended Moorehead-Slaughter and Woolf as two
potential co-chairs of the group.1989
Behnke, Strassburger, and Brehm had a conference call later
that day to discuss. The next day, Behnke drafted a letter to Morgan Sammons and Neil Altman,
inviting them to be the co-chairs of the working group, which he sent to Farberman and
Strassburger for review.1990
Other individuals listed in the letter as potential invitees were:
Michael Gelles, Doug Haldeman, Olivia Moorehead-Slaughter, Corann Okorodudu, Brad Olson,
Judy Van Hoorn, Elizabeth Wiggins, and Linda Woolf.
On August 3, 2007, Behnke alerted Banks to issues with the Board’s motion:
1986 APA_0067887.
1987 APA_0096688.
1988 APA_0096561; APA_0096562; APA_0096564.
1989 APA_0067635.
1990 APA_0067599; APA_0067600.
419
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
As you may have expected, things are heating up considerably in anticipation of
Convention (http://ethicalapa.com/) The Board’s motion (attached) seems to be
largely overshadowing the “moratorium” resolution, but vigilance remains in
order. I’d be eager to hear what, if anything, you’re hearing.1991
Sidley was not able to find a response from Banks.
Later that day, Woolf contacted Behnke regarding the Board’s substitute motion. In her
email, Woolf raised the issue of whether the motion met the criteria for a “substitute motion”:
“[I]n order to warrant consideration…substitute motions should be germane to the issue. They
should not be used to change an affirmative main motion into a negative proposal not to take that
action—they also should not contradict the intent of the main motion.” Woolf attached, and
asked Behnke to review, the proposed amendments from DSJ, which DSJ believed would meet
the criteria of a substitute motion.1992 A similar email was sent by Laurel Wagner to the Board of
Directors on August 4, 2007.1993
In light of these emails, Behnke emailed Farberman and Strassburger on August 5, 2007,
and suggested that the moratorium resolution issue “needs [to be] taken up and given a full
discussion,” and that APA “need[s] to step back and let that happen.” Behnke then suggested
giving Altman 10 minutes to address Council, with Morgan Sammons being given the same
amount of time to respond. Behnke also noted that Larry James would be present at the meeting
and that “at some point before the vote on the moratorium resolution takes place, Sharon should
recognize Larry and allow him to speak.” Clearly, Behnke considered the APA’s position to be
aligned with that of James and Sammons, noting that “Morgan and Larry will explain what APA
is doing, why it is important, and why the moratorium is not a good idea.”1994 After Farberman
and Strassburger suggested giving both individuals only five minutes to speak, Behnke
responded that he would like the debate to be taped and that he would “absolutely” want
Sammons to have ten minutes on that tape so that he can “lay out a set of reasons why the
moratorium is a bad idea and why APA’s position is the right one.”1995 Behnke referred to
Sammons as APA’s “best PR” and explained that APA would want their “strongest player to
have a bit of extra game time.”1996 This exchange illustrates Behnke’s ongoing pattern of
manipulating the governance process to give every advantage to DoD representatives.
DSJ also sent their email, with the proposed amendments, to Robin Deutsch, as the Ethics
Committee Chair. Upon receiving the email, Deutsch reached out to Behnke and Moorehead-
Slaughter and asked if she should provide any comments.1997 Behnke forwarded the email to
Strassburger, Farberman, Gilfoyle, and Beavers (COLI representative) and asked if they could
1991 APA_0067219.
1992 APA_0096365.
1993 APA_0096338.
1994 APA_0067198.
1995 Id.
1996 Id.
1997 APA_0096306.
420
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
inform DSJ that it would simply not be possible to provide feedback from the Ethics Committee
in the time they have requested. Farberman suggested holding off on this response until Brehm
had a chance to speak with Sammons and Altman.1998 Later that day, Behnke responded that he
had been in contact with Deutsch, who agreed that the Ethics Committee would not have time to
review the substitute amendments. Behnke noted that Deutsch would send a letter to DSJ
explaining this point. On August 7, 2007, Behnke drafted the letter from Deutsch, and sent it to
Deutsch and Moorehead-Slaughter for review.1999 Deutsch approved of the letter later that day.
When Behnke forwarded the letter to Gilfoyle, Farberman, Strassburger and Beavers, he did not
dislcose that he had drafted the letter under Deutsch’s name.2000
In addition to putting together the substitute motion, Behnke also worked behind-the-
scenes to garner support in opposition to the moratorium, while keeping his involvement hidden
from the proponents of Altman’s resolution. For example, Behnke asked Morgan Sammons, a
military psychologist, to reach out to various Council members who he thought would be
“receptive” to voting against the moratorium.2001 On August 3, 2007, Behnke sent Sammons a
list of “talking points” and specifically noted that it would “[p]robably [be] best if these are
presented as originating from you, and I am left out of the equation.”2002 The talking points
included the fact that: (1) seven governance groups reviewed the moratorium resolution and none
supported it; (2) COLI performed an “extensive legal analysis” indicating that the sponsor had an
incorrect understanding of the law and Division 19 stated that the resolution will not protect
military psychologists; (3) the Board’s substitute motion achieves the sponsor’s stated goals of
addressing the ambiguous legal framework and protecting military psychologists by providing a
level of guidance and specificity that will be helpful to them; (4) APA is made up of
psychologists, and not lawyers, and what is helpful to military psychologists is to have guidance
about specific behaviors, not complex statements about the law that will require an attorney to
interpret; and (5) the moratorium resolution misses the entire point of what military
psychologists need because it will put a pause on their work until adequate legal guidance is
available, which delays “the very thing we need most.”
A couple of days later, Sammons responded to Behnke’s suggestions and sent him a draft
of the talking points to distribute, which were “basically minor tweaks of [Behnke’s] excellent
synopsis.”2003
Sammons then asked Behnke to review the talking points one more time and
noted that he would send them to the individuals “[they] identified.”2004 Four days later, Behnke
finalized the talking points and sent them back to Sammons with a note that he went over them
“pretty extensively.” Behnke also suggested that Sammons send the talking points as an FYI to
Koocher, Anton, and Haldeman so that they could share them with the Board if they thought it
1998 APA_0096262.
1999 APA_0067160.
2000 APA_0067152.
2001 APA_0067163.
2002 APA_0067214; APA_0067215.
2003 APA_0096311.
2004 Id. & APA_0096312.
421
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
appropriate to do so.2005
Later that night, Sammons circulate the talking points as Behnke had
suggested.
In another example, when Richard Wagner (President of Psychologists for Social
Responsibility) sent out a letter asking the various APA divisions to support the moratorium
motion, Behnke reached out to Bill Strickland, with the help of Heather Kelly, to suggest that
Division 19 draft a letter in opposition to Wagner, and to offer to draft the letter himself.
However, Behnke made it clear to Kelly that his involvement should be kept “under the radar”
and that Bill should exercise “discretion” in presenting the letter.2006
On August 8, 2007, Brehm had a call with Altman, Sammons, and Strassburger to discuss
the procedures for bringing the substitute motions and all of the proposed amendments before
Council. Brehm noted that there were two major concerns: (1) that there was not much time for
Council to consider the resolutions; and (2) that there were several amendments to the Board’s
substitute motion being discussed by a variety of groups. Brehm noted that the time limitation
was the result of Bernice Lott requesting that the item be discussed on Sunday in order for
Council members to have the opportunity to attend the mini-convention programming on ethics
and interrogations beforehand. With respect to the multiple amendments, Altman confirmed that
there was an effort among the different groups to consolidate the amendments as much as
possible. Brehm also agreed to give Altman and Sammons both three minutes to lead the
discussion of the substitute motion.2007
On August 12, 2007, Judy Van Hoorn reached out to Behnke to inform him that the
various groups, including Division 19 had been working together to develop amendments that
they can all support, and that they were in agreement as to almost all of the amendments. She
asked Behnke if he would like to be the point person to facilitate a meeting between the different
groups so that they could reach a consensus before the COR meeting. Behnke commented that
this was “excellent news” and agreed to assist.2008 The next day, Okorodudu circulated a copy of
the amendments to the Board’s substitute motion to the Council listserv and noted that
suggestions had been incorporated from Division 19, the Divisions for Social Justice, and
“various other constituencies.”2009
Specifically, the amendments added the following italicized
language:
BE IT RESOLVED that the American Psychological Association unequivocally
condemns torture and cruel, inhuman, or degrading treatment or punishment,
under any and all conditions, including detention and interrogations.
BE IT RESOLVED that this unequivocal condemnation includes, all techniques
defined as torture or cruel, inhuman or degrading treatment or punishment under
2005 APA_0067073.
2006 APA_0066868.
2007 APA_0096139.
2008 APA_0126413.
2009 APA_0096032; APA_0096033.
422
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
the 2006 Resolution Against Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment, the United Nations Convention Against Torture, and
the Geneva Conventions. This unequivocal condemnation includes, but is by no
means limited to, an absolute prohibition for psychologists against direct or
indirect participation during interrogation processes or other detainee-related
operations in: mock executions; water-boarding or any other form of simulated
drowning or suffocation; sensory deprivation and over-stimulation; “hooding” in
the process of interrogations; forced nakedness; sexual humiliation; rape; cultural
or religious humiliation; exploitation of phobias or psychopathology; stress
positions; the use of dogs to threaten or intimidate; physical assault, including
slapping and shaking; exposure to extreme heat or cold; induced hypothermia; the
use of psychotropic drugs or mind-altering substances used for the purpose of
eliciting information or purposes other than directly therapeutic ones; isolation
and sleep deprivation used in a manner that adversely affects an individual’s
physical or mental health; threats of harm or death; or the threatened use of any of
the above techniques to the individual or to members of the individual’s family;
BE IT RESOLVED that the American Psychological Association's unequivocal
condemnation of torture and other cruel, inhuman, or degrading treatment or
punishment remains applicable at detention and other sites where detainees may
not be guaranteed human rights protections, particularly in relation to due process
and humane interrogation techniques as established under the Geneva
Conventions and other UN documents, treaties, conventions, and protocols;
BE IT RESOLVED that the American Psychological Association calls on the
United States government—including Congress, the Department of Defense, and
the Central Intelligence Agency—to prohibit the use of these methods in all
interrogations and that the American Psychological Association shall inform
relevant parties with the United States government that psychologists are
prohibited from participating in such methods or in interrogations in contexts
denying due process as defined under the 2006 Resolution Against Torture and
Other Cruel, Inhuman, or Degrading Treatment or Punishment;
BE IT RESOLVED that the American Psychological Association in recognizing
that torture and other cruel, inhuman or degrading treatment and punishment can
result not only from the behavior of individuals, but also from the conditions of
confinement calls upon the United States Government to prohibit the use of
psychologists participating in or facilitating extra-judicial detentions, except in
health personnel roles that aid the health of detainees.
BE IT RESOLVED that, the objectives of the APA shall be to advance
psychology as a science and profession and as a means of promoting health,
education and welfare…” (Bylaws of the APA: Article 1) and, therefore, the roles
of psychologists in conditions in which prisoners are held in extra-judicial
detention, should be limited as health personnel to the promotion of health.
423
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
BE IT RESOLVED that the American Psychological Association asserts that any
individual with knowledge that a member of the Association has engaged in
torture or cruel, inhuman, or degrading treatment or punishment, including the
specific behaviors listed above, has an ethical responsibility to provide this
information to the Ethics Committee, and directs the Ethics Committee to take
appropriate action based upon such information; and if an individual has such
knowledge about a psychologist who is not a member of the Association, the APA
encourages that psychologist to provide this information to the appropriate state
licensing board, ethics committee or other accrediting authority;
BE IT RESOLVED that the American Psychological association commends those
psychologists who have taken clear and unequivocal stands against torture and
cruel, inhuman or degrading treatment or punishment including in the line of duty,
and including stands against the specific behaviors or conditions listed above; and
that the American Psychological Association will lend its support to psychologists
who report a conflict between law, orders or regulations and torture, cruel,
inhuman or degrading treatment or punishment.2010
On August 13, Behnke emailed Banks the newest draft of the motion, with the message:
“If you could look these over that would be great--it's the Board's motion, plus amendments.”2011
Later that day, Behnke sent Banks an email titled “How does this sound” with the following text:
“…at detention facilities operated by the United States government where there are extra-judicial
proceedings and where no due process of law is afforded…” Banks responded by asking Behnke
the best number to reach him, stating “I just finished it, and have some thoughts.”2012 Sidley was
not able to find any additional email communications on this point. However, it is clear that
Behnke once again turned to Banks, his trusted partner in DoD, for pre-approval of APA policy.
During his interview, Behnke denied that the Board’s substitute motion reacted only to
Altman’s resolution. Behnke told Sidley that “sure, there was political strategizing going on, but
at the same time, we were looking at people and their positions and . . . seeing there’s a lot of
common ground and we can work with that common ground.” When asked if he, or the APA,
would have pursued a resolution that prohibited specific interrogation techniques without any
prompting from the membership, Behnke responded that he could not answer that.2013 It is clear,
however, that Altman’s proposal was a much harsher policy that would have caused problems
for Behnke’s partners in DoD. When Sidley spoke to Kevin Kiley, the former Surgeon General
of the Army, he stated that it would have been a “problem” if the APA took on the same position
as the ApA and instituted a moratorium against psychologists participating in interrogations.
Similarly, Dunivin also told Sidley that if a moratorium resolution passed, many military
psychologists, including herself, would have “washed their hands” of the APA.
2010 APA_0096033.
2011 APA_0067019.
2012 APA_0093310.
2013 Behnke interview (June 8, 2015).
424
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
Many individuals interviewed by Sidley recalled the August 2007 Council meeting
because of the notable presentation made by Larry James on the need for psychologists to be
involved in interrogations. Several people recalled that James’s speech emphasized that “people
will die” if psychologists were not permitted to work in such detention settings. As discussed
above, it was Behnke who first suggested that Brehm recognize James to speak at Council.
During the course of its review, Sidley was alerted to the fact that James was not a
Council representative from Division 38 when the meeting began. Only after the previous
Division 38 representative, Sharon Manne, was asked to step down was James selected to replace
her.
Sidley interviewed Manne, James, and Suzanne Bennett Johnson, the other Division 38
representative at the time, about this incident. None of the individuals confirmed that Manne
was asked to step down specifically so that James could replace her, but all were certain that
Manne’s departure and James’s appointment were out of the normal cycle. There was some
discrepancy about the timing, and whether it was shortly before or during the convention.
According to Manne, she was elected as Council representative for Division 38 in 2006 and she
successfully served the first eight months of her term. She recalled that she had to miss the first
meeting after she was elected representative, but that she attended the first day of the next
Council meeting with Johnson. After the first day of the Council meeting, Manne was
approached by an individual, who she no longer recalled, who suggested that she step down
because she was not doing her job well. Manne stated that she tentatively agreed, recognizing
that she did not know how to do the job and believing that she was not likely to learn from
Johnson, who, as the senior representative, had not made an effort to mentor her or provide her
guidance. Johnson confirmed that she likely had a “forthright” discussion with Manne about
whether Council was the right place for her, and recalled that Manne initially agreed that she was
not right for the position.2014
Manne learned the next day that James was asked to fill her
position as the Division 38 representative; she did not know if she was asked to step down
specifically so that he could take her seat, but believed this to be the case.
When Sidley spoke to James, he stated that he was under the impression that Manne had
resigned due to a disagreement with Bob Kearns, the president of Division 38 at the time. James
did not believe that Manne was asked to step down specifically so that he could replace her. In
an email on August 13, 2007, James informed Behnke that he had been selected by the Division
38 Board as a replacement for Manne, so that he would be able to attend the meeting all day
Sunday in an official capacity.2015 Behnke responded twice within the span of a minute, in both
emails conveying elation and calling the news “excellent.”2016 James stated that no one from
Division 38 or from the APA leadership asked him to address anything in particular during the
Council meeting; he was told only that they wanted someone knowledgeable about the
interrogation issue to address the room. According to James, no one told him to vote one way or
the other with respect to the resolution itself.
2014 Johnson interview (June 3, 2015).
2015 APA_0704693.
2016 APA_0627022; APA_0627021.
425
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
It seems clear then that, regardless of whether it was publicly announced, James and
Behnke, and some portion of Division 38 leadership coordinated prior to Convention to ensure
that James would be able to speak as an official representative of Division 38. As soon as the
decision was made, Behnke sent James an email on August 14, 2007 counseling James on what
to expect and how to react at the convention:
Larry, I’ve heard through the grapevine that there is a very strong reaction to your
being at Convention and participating in the discussions on item 5. That, to me, is
an indication of your influence. Now, I think it’s best if you are respectful,
measured, clear and low-key in all of your interactions. Your presence will speak
volumes. It’s entirely possible that folks will try to bait and provoke you.
Since you said in your letter that you were being deployed, I assume it’s okay to
say that you are at Convention from your deployment—is that correct?2017
James responded “no problem,” and promised to be calm, respectful, and measured at all
times.2018
Shortly before the Council meeting, Altman and the Board came to an agreement to bring
to the floor a new motion, which was titled “Substitute Motion #3 (Reaffirmation of the
American Psychological Association Position Against Torture and Other Cruel, Inhuman, or
Degrading Treatment or Punishment and Its Application to Individuals Defined in the United
States Code as ‘Enemy Combatants’),” and to affix a moratorium amendment to this motion.
This new motion was the one that was ultimately presented to Council for its consideration.
During the meeting, the moratorium amendment to substitute motion #3 was rejected by a three-
to-one margin before the substitute motion itself was considered and passed almost
unanimously.2019
Following the passage of the resolution, APA continued to receive comments and
suggestions from concerned members. A group of representatives from Divisions 19 (Military
Psychology), 39 (Psychoanalysis), 41 (Psychology and Law), and 48 (Peace Psychology), began
developing a revised draft of the 2007 Resolution to propose to Council at the February 2008
meeting.2020
Shortly before the February meeting, as APA staff and the group of representatives
worked on revising the resolution, Behnke suggested circulating the current draft to Morgan
Sammons or Debra Dunivin for review.2021 Behnke also reached out to James to discuss the
2017 APA_0627016.
2018 APA_0704681.
2019 APA_0068265.
2020 Given the volume of materials to review, and the insights gained from extensive investigation into the
governance process underlying the 2006, 2007, and 2008 Council resolutions, our investigation did not
thoroughly examine the discussions leading up to the February 2008 revision.
2021 APA_0070644.
426
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
revised language.2022 At the February Council meeting, Council voted to rescind following
paragraph on specific techniques:
BE IT RESOLVED that this unequivocal condemnation includes all techniques
defined as torture or cruel, inhuman or degrading treatment under the 2006
Resolution Against Torture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment, the United Nations Convention Against Torture, and the Geneva
Convention. This unequivocal condemnation includes, but is by no means limited
to, an absolute prohibition for psychologists against direct or indirect participation
in interrogations or in any other detainee-related operations in mock executions,
water-boarding or any other form of simulated drowning or suffocation, sexual
humiliation, rape, cultural or religious humiliation, exploitation of phobias or
psychopathology, induced hypothermia, the use of psychotropic drugs or mind-
altering substances used for the purpose of eliciting information; as well as the
following used for the purposes of eliciting information in an interrogation
process: hooding, forced nakedness, stress positions, the use of dogs to threaten or
intimidate, physical isolation, sensory deprivation and over-stimulation and/or
sleep deprivation used in a manner that represents significant pain or suffering or
in a manner that a reasonable person would judge to cause lasting harm; or the
threatened use of any of the above techniques to the individual or to members of
the individual’s family.
Council then voted to replace it with a substantially similar paragraph:
BE IT RESOLVED that this unequivocal condemnation includes all techniques
considered torture or cruel, inhuman or degrading treatment or punishment under
the United Nations Convention Against Torture and Other Cruel, Inhuman, or
Degrading Treatment or Punishment; the Geneva Conventions; the Principles of
Medical Ethics Relevant to the Role of Health Personnel, Particularly Physicians,
in the Protection of Prisoners and Detainees against Torture and Other Cruel,
Inhuman, or Degrading Treatment or Punishment; the Basic Principles for the
Treatment of Prisoners: or the World Medical Association Declaration of Tokyo.
An absolute prohibition against the following techniques therefore arises from, is
understood in the context of, and is interpreted according to these texts: mock
executions; water-boarding or any other form of simulated drowning or
suffocation; sexual humiliation; rape; cultural or religious humiliation;
exploitation of fears, phobias or psychopathology; induced hypothermia; the use
of psychotropic drugs or mind-altering substances; hooding; forced nakedness;
stress positions; the use of dogs to threaten or intimidate; physical assault
including slapping or shaking; exposure to extreme heat or cold; threats of harm
or death; isolation; sensory deprivation and over-stimulation; sleep deprivation; or
the threatened use of any of the above techniques to an individual or to members
of an individual’s family. Psychologists are absolutely prohibited from knowingly
planning, designing, participating in or assisting in the use of all condemned
2022 APA_0070508.
427
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
techniques at any time and may not enlist others to employ these techniques in
order to circumvent this resolution's prohibition.
The new paragraph replaced the reference to the APA’s 2006 resolution with a reference
to “all techniques” considered torture or CID under various international human rights standards.
It also added the statement that “[p]sychologists are absolutely prohibited from knowingly
planning, designing, participating in or assisting in the use of all condemned techniques at any
time and may not enlist others to employ these techniques in order to circumvent this
resolution’s prohibition.”2023
VII. LATE 2007-EARLY 2008: MORE CLOSE COORDINATION BETWEEN APA AND
DoD OFFICIALS ON PUBLIC STATEMENTS
Following the August 2007 Council meeting, Behnke continued to coordinate APA’s
policy and messaging with trusted DoD contacts. On January 9, 2008, Behnke consulted with
Dunivin and Banks regarding APA’s response to a resolution before the California
Senate Business and Professions Committee. The Committee was considering significant action
that would have deemed psychologists working in BSCT roles as in violation of their
professional ethical responsibilities. Perceiving this proposed action as a disastrous threat to the
position that he had worked with DoD to defend for so many years, Behnke immediately turned
to his partners in DoD to help craft a response he could use in lobbying on APA’s behalf.
When Behnke reached out to Banks and Dunivin for guidance regarding how to respond
to the proposed resolution, he specifically asked for information related to DoD’s policy on the
issues raised in the following proposed “whereas” paragraph:
WHEREAS, Current United States Department of Defense guidelines authorize
the participation of certain military health personnel, especially psychologists, in
the interrogation of detainees as members of “Behavioral Science Consulting
Teams” in violation of professional ethics. These guidelines also permit the use
of confidential clinical information from medical records to aid in interrogations.
Behnke asked for “a citation or language from a DoD policy that speaks to this issue,”
and added: “I believe DoD policy has an absolute firewall (even more stringent than the PENS
report), but I can’t recall for certain and don’t want to make any statements until I have the actual
language in front of me. There are a number of other inaccuracies in the text, which I think I’m
in a good position to address, but I could use some help on this one.”2024 Dunivin responded that
the paragraph was indeed inaccurate and indicated that she would send more information
soon.2025
Behnke thanked Dunivin and urged her to provide a citation as quickly as possible so
that he could “get this information to our friends in CA so they can provide accurate information
to the folks on the Senate subcommittee.”2026 Banks also reassured Behnke that he was
2023 APA Ethics Committee Statement (June 2009).
2024 APA_0070170.
2025 APA_0093127.
2026 APA_0093126.
428
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
reviewing his references,2027 and he later responded with a list of relevant citations to DoD
Directives and Instructions.2028
On the same day, a SERE psychologist working with Banks sent three sets of documents
to Behnke, including the DoD Directive and Instruction that Banks had referenced, and a number
of other policies relating to BSCTs and interrogations.2029 The psychologist wished Behnke
luck, and playfully referred to him as “our Knight in Shining Armor :-).”2030 Behnke thanked
him for the materials and added “thanks as well for your kind words. I'm privileged to play a
supporting role to the work you and your colleagues do, for which I have the greatest admiration.
If the few words I’m allowed to say are at all helpful, I’ll be very pleased.”2031 This small
exchange is yet another example of how Behnke embraced the partnership he had formed with
DoD, and that he saw it as an integral part of his role to support that partnership and facilitate
DoD’s mission.
As APA continued to face critical challenges to its position on interrogations, it is clear
that Behnke remained committed to his partnership with DoD. He viewed the joint venture,
which rested on personal relationships and ideological alignment, as a critically important part of
his role such that, even when he ostensibly acted or spoke on behalf of APA, his true mission
was to play a “supporting role” to the military. Over the several years following the release of
the PENS report, Behnke continually turned to his trusted partners and friends in DoD for
guidance, ensuring that APA’s message reinforced DoD policy preferences and that APA action
never hindered DoD’s ability to accomplish its goals.
VIII. THE 2008 PETITION RESOLUTION AND THE 2009 PRESIDENTIAL ADVISORY
GROUP REPORT
When, in early 2008, several APA members drafted and began to circulate a petition
resolution that proposed banning psychologists’ involvement in interrogations and in settings in
violation of international law, Behnke sprang into action to defend military psychologists and
protect their roles to the greatest extent possible, as he had done with various similar attempts in
previous years. As the petition moved forward and gained traction, Behnke worked with APA
governance and staff to throw up every procedural roadblock possible and to assist the
petitioners’ opponents, all while carefully concealing all traces of his involvement. Behnke led
an orchestrated effort on behalf of APA to do everything in his power to defeat the petition
resolution while carefully manipulating the situation to maintain the appearance of neutrality.
2027 Id.
2028 APA_0093125. Banks labeled one of these Directives, DoD Directive 3115.09, “not helpful,”
pointing Behnke’s attention to a provision from that clarifies that psychologists working as consultants to
interrogators cannot also serve as health care providers. Intelligence Interrogations, Detainee
Debriefings, and Tactical Questioning, DoD Directive No. 3115.09 (Nov. 3, 2005), available at
2029 APA_0093097; APA_0093121; APA_0093117.
2030 APA_0093097.
2031 APA_0071305.
429
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
When the petition resolution first began to circulate in April 2008, the main text of the
resolution read:
Be it resolved that psychologists may not work in settings where persons are held
outside of, or in violation of, either International Law (e.g., the UN Convention
Against Torture and the Geneva Conventions) or the US Constitution (where
appropriate), unless they are working directly for the person being detained or for
an independent third party working to protect human rights.2032
Because the resolution language was set by the membership rather than developed
through the APA governance process, APA staff were, to a certain extent, sidelined during the
process of passing the petition through governance. In contrast to the role APA staff,
particularly Behnke, played in fine-tuning the language during earlier resolutions, the petition
procedure placed staff in an entirely different position and neutralized their ability to
“wordsmith” in a way that favored their agenda. Because Behnke could not manipulate the
language of the petition resolution itself, he took every opportunity available to shape the
messaging about the resolution.
For example, as members began to express their opinions regarding the petition on the
APA listservs, Behnke worked with governance and staff to craft the message in opposition. In
early May, Behnke drafted a message for Melba Vasquez to post to a Division listserv that
justified his objection to the petition because APA had already “taken a clear and emphatic
stance *against* abusive interrogations,” and in fact, public reports had provided examples of
psychologists behaving “*precisely* as one would hope and want, intervening to stop an abusive
interrogation” (emphasis in the original).2033
The message concluded: “This petition would
seriously impede psychologists’ efforts to ensure that interrogations are conducted in a safe and
ethical manner. Certainly I agree that good people can do bad things. But it seems to me that the
way to ensure bad things will happen is to remove good people.”2034 Later that day, Vasquez
posted Behnke’s letter verbatim in response to the listserv discussion,2035 and also posted a
modified version to two other Division listservs.2036
Despite these efforts to undermine the petition in its infancy, on June 1, 2008, Dan
Aalbers led the petitioners in officially submitting the petition resolution to Barry Anton, who
was APA’s Recording Secretary. This was, as best to our knowledge, the first time in APA
history that the association had confronted a member-driven petition resolution. Thus, a group of
APA staff members met to consider the provisions of the bylaws that permitted such a petition,
and to outline the procedural steps that would unfold if the petition were pursued.2037 They
2032 APA_0073210.
2033 APA_0073210 (emphasis in original).
2034 Id.
2035 APA_0098762.
2036 APA_0098764.
2037 APA_0100008.
430
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
concluded that there would need to be a review of the signatures to verify that the petition was
endorsed by voting members. At that point, the petition could be presented to the President for
an initial review, after which the Board would fix the “time and manner” of the vote on the
petition. If passed, the petition resolution would become effective at the next annual meeting in
August 2009.
Though APA staff outlined a procedure by which the petitioners could present their
resolution for a membership vote, they worked to ensure, even at this early stage, that a favorable
vote on the petition would not affect the work of military psychologists in practice. Staff
members labored to clarify that the petition was not an attempt to amend the Ethics Code;
instead, it was “simply an effort to have APA adopt an official policy statement on the location
where psychologists work. In particular, it was noted that the proposed new policy does not
mention the word ‘ethics’ and does not suggest that there are any consequences of not following
the policy.”2038
Thus, even before any APA governance bodies or the APA membership
considered the petition on its merits, APA staff had already subverted the clear intent of the
petitioners and rendered the resolution toothless.
Shortly after staff determined the procedural steps necessary to put the petition resolution
to a membership vote, it began to pass the resolution through the process. At the June 2008
Board meeting, the Board reviewed the petition and noted that:
The petition was transmitted by the Recording Secretary to the Board of Directors
after it was determined that the petition was signed by 1% of the Members in
good standing. Dr. Kazdin [APA President], with input from the Board,
determined that the petition is a proper motion.
Thus, APA staff at least nominally followed the procedures they had outlined. The Board
also set a schedule for mailing ballots and opening the voting period, and determined that “[a]
majority of those voting will determine the outcome of the balloting.” Finally, the Board
requested pro and con statements to accompany the ballot, and directed that “[t]he petition
sponsors are responsible for selecting an author(s) for the pro statement and rebuttal. The
Recording Secretary will invite an author or authors for the con statement and rebuttal.”2039
On June 16, 2008, Anton emailed Aalbers to notify him that the petition has been deemed
proper, but noted that “[a]n important consideration in reaching this conclusion was the
understanding that the proposed resolution is not intended to amend the Ethics Code.”2040 As
had become common practice, APA staff drafted a version of this letter for Anton to send out
under his own name, which he did with only minor revisions.2041 The letter explained that the
Board had determined that it would be helpful to have pro and con statements accompany the
ballot, and that the petitioners were responsible for selecting the authors of the pro and rebuttal
statements.
2038 Id.
2039 Draft Executive Session Minutes of the Board (June 5-7, 2008) (on file with Sidley).
2040 APA_0711063.
2041 APA_0711069.
431
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
Although the Board determined that Anton, as Recording Secretary, should select the
author of the con statement that accompanied the ballot, it is clear that APA staff, led by Behnke,
maintained tight control over the con statement, both by selecting its nominal authors and by
refining the substantive language. Just one day after Anton informed Aalbers that pro and con
statements would accompany the petition resolution, it was already clear to high-level staff that
Behnke would lead the selection of the con statement authors. On June 17, Gilfoyle asked
Behnke and Garrison “[w]here are you on Con writers?” When Garrison asked for guidance on
the selection process, Gilfoyle responded that the Board “left it to staff,” to which Strassburger
added “namely Steve [Behnke].”2042 Later communications show that the Board “did say for
Steve [Behnke] to make suggestions to the Board.”2043 Thus, it seems probable that, despite
having adopted a minute that clearly instructed Anton to select the con statement author, the
Board directed behind the scenes, or at least understood, that APA staff would make the
selections in practice.
This implicit understanding (or possible explicit instruction) between the Board and staff
was screened from public view. The petitioners were told that Anton, a member of APA
governance, would be selecting the author of the con statement. Likewise, on June 19, again
using a message drafted by APA staff2044, Anton emailed the Council listserv to inform Council
members that he would be responsible for inviting an author for the con statement.2045 The
message made no reference to the involvement of any APA staff members in the selection
process.
In the first few days after the Board directed the inclusion of pro and con statements in
the circulation of the petition, APA staff rushed into action to both identify an author and shape
the substance of the statement. Despite Anton’s assurances that he would select the author of the
con statement, it was Behnke who, on June 18, reached out to Joel Dvoskin to invite him to write
the statement.2046
Although Sidley could not find any record of staff discussions regarding who
to select, it appears likely that Dvoskin was chosen because he was viewed as an
“incrementalist,” based on an address he gave as President of Division 41.2047 By June 20,
Dvoskin had already prepared a draft con statement. After speaking with Dvoskin, Behnke
became concerned that he would not present a forceful enough opposition to the petition. In an
email to Honaker, Strassburger, Gilfoyle, Farberman, Garrison, and Anderson, Behnke raised a
concern regarding the tone of Dvoskin’s statement:
Joel read the draft to me. The draft is *very* conciliatory in tone, endorses what
Joel believes is the intent behind the petition, while making clear that the current
version of the petition has significant problems that speak forcefully against its
adoption. I would characterize Joel’s draft as having a ‘revise and resubmit’ tone.
2042 APA_0711063.
2043 APA_0099988.
2044 APA_0711068.
2045 APA_0100012.
2046 APA_0641062.
2047 APA_0641050.
432
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
I myself think that there may be significant benefit to this approach, but it is also
important to recognize that some of our members may want to take a much harder
line. I also think it is important for us to recognize that the ‘con’ statement, in
both substance and tone, will be imputed to APA - there’s just no way to distance
ourselves from it, and a conciliatory tone might be very helpful in our efforts to
mend fences (emphasis in the original).2048
Behnke recommended that the staff explain the situation to Anton and let him make the
decision because “[h]owever this unfolds, there will be people who are not happy and I think it’s
important that this be a board decision. Also, I think that once the person is chosen we need to
step back and let him/her write the statement in whatever manner he/she chooses.”2049 Both
Garrison and Strassburger agreed that the authorship of the con statement should be a decision
for the Board,2050 and Anderson commented that “[c]learly it is up to the Board to determine how
the con statement gets written, but . . . I could foresee a ‘Con-writing team’ to provide input into
the statement, even if it is authored by one person. Some of Joels’ views might be useful
here.”2051
On June 21, 2008, Behnke emailed Dvoskin to tell him that “we need to hit the
‘pause’ button on the con statement
The Board is going to review the process by which the
con statement writer is chosen, to address a concern that the relevant constituencies have not
been adequately consulted.”2052
Although Behnke’s explanation for sidelining Dvoskin’s draft statement was based
entirely on procedure, it was clear that his real concern was with the “conciliatory” tone and
substance of the statement Dvoskin had prepared. Clearly, Dvoskin’s endorsement of the “intent
behind the petition” would have been unacceptable to Behnke’s partners in DoD, who wanted to
continue to use psychologists as BSCTs at Guantanamo and elsewhere. Therefore, Behnke
conveniently fell back on the Board’s instruction that Anton select the con statement writer. Had
Behnke truly been concerned with the procedural niceties, he would not have asked Dvoskin to
work on the statement prior to Board approval in the first place. Internal communications clearly
indicate that Behnke regretted the selection he had made because Dvoskin would not provide a
vigorous defense of the position Behnke had staked out with his partners in DoD, and that he
turned to procedural considerations to provide cover for a second attempt at choosing an author
who would strike the right tone in strongly opposing the petition.
At the same time that Behnke worked to designate the author of the con statement,
internal discussion demonstrates that other senior staff, particularly Anderson and Garrison,
began to discuss how to shape the substance of the con statement in whatever way they could.
On June 19, Anderson emailed a group of senior-level staff, including Behnke, Garrison,
Farberman, and Gilfoyle, advising them to “be up front with the fact that we are in new and
unprecedented territory concerning the potential for APA to ban a work setting for psychologists.
2048 APA_0099988 (emphasis in original).
2049 Id.
2050 Id.
2051 APA_0710880.
2052 APA_0640992.
433
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
. . . [I]t is very unclear what method APA would use to enforce this since the petition is silent in
this regard, and we have no previous experience enforcing a work place ban.” He added that
these issues “could form a key part of the CON statement,” and that “the more difficult the
questions raised by COR that can’t be answered, the better it is for the CON statement.”2053
Garrison weighed in “to express my wishful thinking that we might be able to peal away a few of
the original resolution writers for the con statement with the very argument that the petition goes
too far by actually disallowing psychologists from working in such detention settings
Any
chance to find such folks?”2054 The following day, Garrison made another suggestion that staff
could support the con writers by informing them “of issues/concerns that might not be readily
apparent from the Council queries and a cursory review of the petition.”2055 Thus, it is
abundantly clear that, despite being sidelined from their usual role of wordsmithing resolution
language, APA staff continued to look for ways to influence the ideas and language used in
opposition to the petition.
APA staff’s initial flurry of activity shifted course after Council members began to raise
complaints about the addition of pro and con statements to the ballot. On June 20, Anton
informed senior APA staff that he had been hearing concerns from Council regarding the
Board’s instruction that the ballot be accompanied by pro and con statements. Anton explained
that a Council member “noted that it has been raised many times at COR that items sent with
pro/con statements usually fail. He noted that it may seem ‘disingenuous’ of APA to want to
include such statements with the petition.”2056 Behnke responded that, “given the *extensive*
debate and discussion this issue has received over the past three years, it would seem virtually
untenable not to have pro/con statements regarding a new proposal.”2057 However, when Kazdin
asked the following day whether APA had any data regarding whether the addition of pro/con
statements made proposals and resolutions more or less likely to pass, Anton commented that it
was “Council Wisdom” that items with pro/con statements never passed. 2058 Strassburger
similarly admitted: “I think only one Bylaw amendment passed with a pro/con. Most view
pro/con statements as the ‘kiss of death’ and the data bears this out. However, this is not a
Bylaw amendment
”2059
Strassburger’s comment demonstrates not only that APA staff was
well aware that the addition of pro and con statements was likely to diminish the chances of the
petition resolution passing, but also that they were utilizing their usual fine-tuned distinctions
and word games to justify the procedure. As the Council member intuited, APA staff’s handling
of the pro and con statements was disingenuous all the way through.
On June 21, concerned that APA must “give this petition a fair review (and be perceived
as doing so),” Garrison suggested an alternative to the pro/con statements in the form of an
2053 APA_0099998.
2054 Id.
2055 Id.
2056 APA_0099968.
2057Id. (emphasis in the original).
2058 APA_0072933.
2059 APA_0099968.
434
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
overview published in the Monitor to allow full airing of the issues. Behnke effectively
dismissed Garrison’s suggestion as a “de facto pro/con statement” and again emphasized that,
given the complex history of the issue, it was important to ensure “that there is not even the
perception that any voice will be excluded
Not to have pro/con statements would be entirely
out of keeping with how we have approached this issue in crafting our position over the past
several Council meetings and Conventions.”2060 Later that day, Behnke again emphasized
process, querying “[o]n what basis does one now change the process that the Board has
developed according to an Association rule, to which the sponsors have not objected, and about
which Council has been informed?”2061 It is clear that, throughout their discussion of the utility
of pro and con statements, APA staff were entirely focused on packaging the statements as a
guarantor of fair process, despite knowing (or at least suspecting) that such statements were in
reality an obstacle to fair consideration of the petition. Once again, Behnke steered the group
into a defense of the pro and con statements using procedural defenses to conceal his true
strategy to use the statements to achieve his preferred outcome.
At the same time that Behnke defended the pro and con statements to a group of high-
ranking governance and staff members, he also worked closely with Anton to devise a plan to
select a con author as a replacement for Dvoskin. In an email to APA staff on June 20, Behnke
explained that he and Anton agreed to bring the selection of the con writer to the full Board
during an upcoming conference call, and that Anton “thought it would make good sense to reach
out to Council reps from several divisions (e.g., 19, 41 and 42), who will now be familiar with
the petition, and ask for their input regarding additional possible writers for the con
statement.”2062
On June 24, 2007, Anton emailed the Board’s listserv to inform them that Bill
Strickland, Bonnie Markham, and Robert Resnick had over the weekend “spontaneously
volunteered to participate in the Con statement writing.”2063 Of course, this volunteerism was
not “spontaneous” at all, but rather a response to Anton’s direct requests to specific Council
representatives as part of a plan that he had devised with Behnke.
In his email to the Board, Anton also commented that one of the “volunteers” asked
whether “the letter writers could have assistance from APA staff
I believe we agreed that
both pro and con statement writers could get assistance. I don’t think we agreed about what type
of assistance.”2064
The next day, in an email to Anton and APA staff, Behnke reinitiated
discussion about the selection of the con writer, noting that they would need to be “delicate” in
how they communicated with Dvoskin. Farberman suggested two options: (1) asking Dvoskin to
downplay the parts of his draft that suggested a “revise and resubmit” approach or (2) asking
Resnick to draft a statement. When several staff members asked to see a copy of Dvoskin’s
draft, Behnke explained: “Joel read it to me, but he didn’t send it (and I didn’t ask, given our
earlier discussions about not wanting staff to appear overly involved in the process).”2065
2060 APA_0072933.
2061 APA_0072930.
2062 APA_0714438.
2063 APA_0201641.
2064 APA_0127624.
2065 APA_0640876.
435
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
Farberman echoed the concern, commenting that “[w]e need to be really careful about asking to
review drafts. My assumption was that we would not be reviewing drafts of the con statement
unless asked to do so by the author,” and Anderson affirmed that “[s]taff should not be seen as
helping to craft the con statement.”2066
During these discussions, Anderson and several staff members started to express a
preference for Resnick, and on June 27, 2008, Anton emailed Resnick and asked if he would be
the author of the con statement. Anton explained that Resnick could consult with others and ask
APA staff questions, and that “[b]oth Bonnie Markham, and Bill Strickland (Division 19), are
willing and able to assist you,” but that “only your signature will go out on the statement.”2067
On the same day, Behnke reached out to Dvoskin to inform him that: “[T]he Board reviewed the
process for choosing the con writer, and decided that the con statement would have a single
author. A member of Council and former APA president has been chosen. That person will work
with a group of people to write the statement. Barry Anton, a member of the Board of Directors,
would like to speak with you to ask that you be a part of this team. Of course, I think the
statement will be much stronger with your involvement.”2068 Sidley found no record that the
Board had a meeting in late June to either “review the process” or select an author. Rather, it
seems likely that Behnke continued to use the fiction of Board action and proper procedure to
conceal his own critical role in shaping the con statement.
Despite Behnke’s representation to Dvoskin that there would be only one con author,
Resnick, Markham, and Strickland soon came to consider themselves the con statement
“trio.”2069
As the con authors began turning to APA staff with questions, Behnke embraced the
opportunity to shape the statement while remaining mindful of the need to appear balanced and
neutral. In an internal email on July 1, he explained that he would respond to the con writers “in
such a manner that if the ‘pro’ writers asked me, I would provide them exactly the same
information; in fact, if the pro writers were to get in touch with me, I would likely simply
forward what I wrote.”2070 Indeed, Behnke then drafted a detailed substantive response to the
con authors’ question, a portion of which Markham suggested they import verbatim into their
draft.2071
Although Behnke’s explanation appeared neutral on its face, in contex,t it was apparent
that Behnke had manipulated the process to allow staff to assist the con statement authors to
shape their message. Although it was true that both the pro and con writers could have reached
out to APA staff, only the con writers were explicitly told that they could consult with others,
including APA staff. Moreover, Behnke was well aware that it would have been extremely
unlikely for the pro writers to consult with staff because they viewed APA as aligned with the
con statement. This perception was not without foundation: it is clear from internal
2066 APA_0710685.
2067 APA_0127625.
2068 APA_0640806.
2069 APA_0101115.
2070 APA_0128012.
2071 APA_0101115.
436
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
communications that many high-level APA staffers, the CEO, and prominent Board members
were all opposed to the petition resolution and invested in promoting a strong con statement.2072
Behnke’s elaborate responses to the con authors’ questions belie his earlier promise that the
author could “write the statement in whatever manner he/she chooses.” Instead, it is apparent
that Behnke labored to craft the language himself, to the extent possible, all while studiously
assuring that he had gone through the motions of preserving neutrality, in the event that
criticisms might later arise.
On the same day that Behnke responded to the con authors’ request for assistance, he also
contacted Banks to ask him to set aside some time for them to “go over a number of things,
somewhere reasonably private.” Banks responded that he would “[a]bsolutely” meet with
Behnke and added: “I just looked in detail at the most recent resolution, and as someone who has
sworn an oath to uphold the constitution, I am a little confused. Perhaps you can enlighten
me.”2073 Although Sidley uncovered no evidence demonstrating what precisely Banks and
Behnke discussed at this meeting, it is likely, based on the timing, that Behnke sought pre-
approval of the message he intended to convey in the con statement, in the same way that he had
for various APA statements and resolutions over the preceding two years.
As the con authors began drafting the statement, they worked closely with Behnke on the
language. When Resnick circulated the first full draft of the con statement on July 2, copying
Behnke, the draft included lengthy excerpts from the language Behnke had circulated the day
before, including the paragraph Markham had identified and some additional sentences.2074
Behnke forwarded the statement to Anderson, Farberman, Garrison, Gilfoyle, and
Strassburger, noting that there were two statements they should address:
1. The statement that the petition is essentially the same as what council voted
down in San Francisco. There are very important differences between the two -
Council voted down a *moratorium* on psychologists working in centers for
*foreign detainees.* The petition has no time limit and is much broader in scope.
2. The statement that APA’s efforts have had no apparent effect. In fact, everyone
agrees that the Revised Army Field manual is a great improvement, and there is
considerable discussion in congressional hearings regarding the non-effectiveness
of abusive interrogation techniques, a point APA has been emphasizing since the
beginning of our discussions (emphasis in the original).2075
2072 In an earlier email, Brehm had implicitly confirmed that the con statement was a representation of the
APA Board’s position: “As for the con statement, is the BOD actually willing to let someone write the
con statement without BOD oversight? If not, then it would be best to have someone on the BOD write
the con statement
Either we give someone freedom in writing the con statement or the BOD should
take responsibility for the con statement.” APA_0141492.
2073 APA_0101136.
2074 APA_0128150; APA_0128151.
2075 APA_0072704 (emphasis in original).
437
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
Garrison responded to Behnke’s email with an edited version of the con statement in
which she incorporated Behnke’s first point and made some other edits.2076
Farberman suggested that the comments be sent as a part of an email rather than in track
changes because she was “concerned about the impression that the con statement is, even
partially, staff produced.”2077
Despite Farberman’s concerns, Garrison and Behnke determined
that using bulleted suggestions would be “too difficult and lengthy a process,” and instead sent
the revised draft to the authors as an attachment, with a message emphasizing the “overbroad
scope of the petition.”2078
Though it was true that encapsulating their comments into bulleted
suggestions would have been more laborious, Behnke’s earlier email demonstrated that he could
have done so. In practice, the decision to circulate a revised draft allowed Behnke to exert more
direct control over the precise contours of the message and to “wordsmith” the language to
ensure that it remained protective of military psychologists and DoD, as he had done with
previous resolutions.
On July 3, after Behnke emailed the revised con statement to the authors, Markham
thanked Behnke for his edits, which were “more clearly focused on the key issues and
present[ed] them in a compelling and well-documented way,” and recommended that the authors
use the statement as revised by Behnke.2079 Resnick accepted Markham’s suggestion, offering
only “one minor tweak,” and also thanked Behnke for his “important input.” When Behnke
forwarded both emails to Garrison, she enthusiastically commented: “THIS IS BETTER THAN
GREAT!!!”2080 Having succeeded in effectively rewriting the con statement, Behnke hastened
to ensure that his hand in drafting the statement would remain invisible to the petitioners and the
broader public. He almost immediately emailed the authors that “[i]t’s Ethics Office policy to
provide feedback on ethics-related matters to anyone who asks, as you have done, and we are
happy to be a resource for APA members. Of course, the statement is entirely yours and should
be presented as such.”2081 Again, Behnke’s assurances of neutrality were disingenuous in light
of the political realities: it was highly unlikely that the authors of the pro statement, having not
been informed that they were permitted to ask APA staff questions, would spontaneously reach
out to APA for assistance, especially given the broad perception that APA was closely aligned
with the con statement. It is unsurprising, therefore, that Sidley found no evidence that any
assistance was sought by, or provided to, the authors of the pro statement.
Although Behnke had attempted to excise Dvoskin from the petition resolution process,
Dvoskin continued working on his own initiative to mediate between the two sides. On July 5,
2076 APA_0101081; APA_0101082.
2077 APA_0101078.
2078 APA_0101062.
2079 APA_0101050.
2080 Id. (emphasis in original).
2081 APA_0120221. Several weeks later, Behnke suggested that Anderson “strongly caution against the
Board doing anything to make it appear to favor one side (or disfavor the other). Dr. Reisner kept
referring to the ‘con’ position in our conversation as ‘APA’s position,’ and he and his colleagues will be
looking for any and all evidence to confirm their belief.” APA_0072356.
438
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
Dvoskin circulated his own draft of a con statement to Anderson, Gilfoyle, and Behnke,
explaining that he had shared the draft with Reisner, who agreed with it “almost in its
entirety.”2082
Dvoskin explained that Reisner was trying to arrange for a discussion between
himself and the two petition authors to facilitate a “negotiated statement along the lines of my
draft,” and suggested that APA might postpone the referendum to permit time for negotiation.
Dvoskin offered to “play some mediation role to resolve this” because he believed that “an all-
or-nothing vote will be disastrous to APA and its members, whatever the outcome.”2083 When
Behnke forwarded Dvoskin’s proposal to a wider group of APA staff, it was uniformly rejected
in favor of moving forward with the petition. Garrison explained: “While moving forward with
the petition presents its own risks, I’m confident that we have as strong ‘con’ statement that will
carry the day.”2084
It is abundantly clear that, by this point, staff’s initial efforts to remain neutral
had been wholly abandoned. Although Garrison claimed in her interview that she believed it
was important for the resolution to pass and that APA staff tried to remain neutral and helpful to
both sides,2085 internal communications reveal that APA staff, Garrison included, did in fact take
a strong position against the petition resolution. Behnke and Garrison, in practical effect, drafted
the con statement and identified with it as their own, trusting in its strength to “carry the day” to
APA’s preferred outcome—a resounding defeat of the petition resolution.
Both the pro and con statements were finalized on July 8, 2008. On July 10, Behnke
wrote to APA staff to inform them that: “Bob has reached out regarding the con statement
rebuttal. The rebuttal is of the same quality as the initial con statement. Ellen and I will offer
suggestions that Bob and his colleagues are free to use, or not, as they see fit, as we did with the
original statement.”2086
Having just successfully rewritten the con statement, it is clear that
Behnke was communicating to senior APA staff that he would also draft the rebuttal statement
on the designated authors’ behalf. Though he paid lip service to the idea that the authors were
free to disregard his suggestions, the clear subtext was that Behnke found the rebuttal statement
deficient and intended to refine the language. At this point, Honaker became concerned that
APA staff were jettisoning the façade of neutrality: “I meant to say this before but I want to
make sure I do now; are we offering the same help for the pro statement? One thing that has
bothered me is that we are supposedly ‘neutral’ on this issue but it seems we are developing a
paper trail that shows we are not.” Behnke responded with the same disingenuous comment that
he would “help anyone who asks.”2087 It is abundantly clear that APA staff were concerned not
that they actually behave in a neutral fashion to assist all members, but that they not appear to be
providing assistance only to one side. Notably, Honaker was not concerned that Behnke was
2082 APA_0101042.
2083 Id. Gilfoyle recommended on July 7 that APA “call Joel off” through the intervention of either
Anderson or Kazdin, who could explain that the “Board is trying to stay out of the political process and
let the petition go forward on its merits.” APA_0101016. Later that day, Gilfoyle emailed Dvoskin to
tell him that APA had decided to wait to hear from petition sponsors, and Anderson concluded that
Dvoskin had “disengage[d].” APA_0100995.
2084 APA_0072648.
2085 Garrison interview (May 20, 2015).
2086 APA_0640477.
2087 APA_0712482.
439
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
taking a strong hand in drafting the con statements, but rather he was bothered that Behnke was
leaving a “paper trail” showing that he had done so. Behnke’s threadbare reassurances that APA
staff were prepared to assist any member who requested it was plainly disingenuous, but
sufficient to whitewash the paper trail and bolster the appearance of neutrality.
Rather than revising the draft of the con rebuttal statement, Behnke instead independently
drafted a rebuttal statement, with the assistance of Garrison, Farberman, and Gilfoyle.2088
Although Garrison cautioned that they should not send Behnke’s draft to “Bob et al. at the last
minute” because the “longer they work on theirs, the more committed to it they may
become,”2089 Behnke did not circulate his draft statement until after Resnick sent the draft the
trio of authors had composed on July 11. Though Behnke had been independently drafting the
statement, he explained to the authors that he had “taken what [he] [saw] as the core and the
strongest points in your draft, and elaborated on them.”2090 When the authors submitted their
rebuttal to the membership, it matched Behnke’s draft verbatim.
Though Behnke was unable to finesse the language of the resolution directly, he worked
behind the scenes to ensure that the statement opposing the resolution conveyed the precise
message he intended. Throughout the drafting process Behnke carefully crafted and honed the
language of the con statement, working closely with the authors to suggest both major shifts in
emphasis and substance and minor stylistic revisions, all while ensuring that his handprint on the
statement remained hidden from the view of APA’s critics and the majority of its governance
bodies.
As the petition resolution moved forward through the governance process, and the pro
and con statements were circulated to the membership, Garrison was selected as the nominal
point person to work with both the petitioners and the opposing groups, particularly military
psychologists.2091
In July, just weeks before the APA membership voted on the petition
resolution, Garrison began fielding messages from military members of the APA who expressed
concern that APA might sanction DoD psychologists serving as BSCTs at Guantanamo and
elsewhere.2092
As a result, she began to host meetings with military psychologists to address
their concerns with the petition resolution and to provide more information and greater clarity
about the petition process and the effect of the resolution if passed. In her interview with Sidley,
2088 APA_0072542; APA_0072543.
2089 APA_0712479.
2090 APA_0072538; APA_0072539.
2091 In late 2006, Garrison had been assigned to a new position as Senior Policy Advisor to the CEO. As
part of that position, Garrison began to work directly with military psychologists on a number of issues,
with a primary focus on the provision of clinical care to military personnel and their families. In the
months following the passage of the 2007 resolution, Ellen Garrison began to hold quarterly meetings
with DoD psychologists from each of the Services. The primary participants were Bruce Crow (Army),
Morgan Sammons (Navy), and Jim Favret (Air Force). Garrison said that, although the group did not
initially discuss the issue of psychologists working in interrogation settings, these issues were driven to
the forefront when APA members initiated their petition resolution in 2008. Garrison interview (May 20,
2015).
2092 APA_0100566.
440
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
Garrison explained that one of their main concerns was that the petition resolution would create
confusion among psychologists who were being deployed to detention settings, some of whom
would therefore refuse to serve. The military psychologists were concerned that, in that event,
social workers would likely be deployed in their stead. Garrison said that military were also
concerned that APA was taking a stance with respect to military psychologists that it did not
typically take in other industries, namely interfering with what they could do in their chosen
profession.2093
In response to these concerns, Garrison assured military psychologists that “the
petition resolution, if passed, would NOT be enforceable by APA’s Ethics Committee
I can
state definitively, based on guidance from our APA General Counsel, that were this resolution to
be voted on favorably by the membership, it would not make it an ethical violation for DoD
psychologists to serve as a Behavioral Science Consultant” (emphasis in the original).2094
Despite Garrison’s assurances, Dunivin, in particular, continued to express concerns that, even if
the APA did not enforce the petition resolution, state licensing boards might impose sanctions on
the basis of the resolution, and that the overall effect of the ban would be to “set back APA-
military psychology relations that we’ve worked so hard to restore over the past decade.”2095
Although Garrison hosted several meetings with DoD members between June and August
2008,2096 these communications were of a fundamentally different character than the discussions
Behnke had held with James in previous years. Garrison’s communications with Bruce Crow,
Debra Dunivin, Jack Smith, and other military psychologists were not of the same ilk as the
secretive attempts to manipulate policy and messaging that Behnke had engaged in. Rather than
attempts to collaborate on shaping APA policy, Garrison’s communications with interest groups
within DoD focused on conveying accurate information about APA’s policies and governance
process. Aside from Behnke’s “private” conversation with Banks in early July, there is no
evidence that APA staff engaged in the kind of secretive coordination that had underlain APA’s
actions and statements in the previous two years.
In September 2008, the membership of APA voted and passed the petition resolution.2097
Soon after, on September 25, President Alan Kazdin informed Council that he would be
appointing a Presidential Advisory Group on the Implementation of the Petition Resolution
(“advisory group”) to clarify the intent and scope of the resolution and identify possible Council
actions to implement the resolution.2098 As plans advanced regarding the composition, structure,
and charge of the advisory group, APA staff became heavily involved in managing the group to
ensure that it would not be perceived as “PENS II.” During the next several weeks, as staff
secured nominations and drafted the charge, they focused on process in an attempt to stave off
2093 Garrison interview (May 20, 2015).
2094 APA_0100566.
2095 APA_0100519.
2096 Garrison, along with Gilfoyle and Behnke, continued to meet with the group of military psychologists
after the petition resolution passed in September to discuss criteria for determining whether detention sites
fall within the scope of the resolution, the acceptable roles of psychologists at affected sites, and possible
means of implementing the resolution. APA_0103275.
2097 APA_0102401.
2098 APA_0102660.
441
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
the kinds of procedural criticisms that had been leveled against the PENS Task Force, while
continuing to minimize the practical effect that the resolution and the work of the advisory group
would have for military psychologists.
Behnke worked with APA staff to carefully frame the charge in a way that did not invite
the advisory group to expand the effect of the petition resolution, which he had worked so hard
to limit. On October 15, Garrison circulated to APA staff the first draft of the advisory group’s
charge.2099
When Strassburger reviewed the draft and suggested that the charge should include a
reference to ethics, Behnke quickly jumped in to offer the alternative perspective that raising
ethics issues would muddy the waters. He explained: “Nathalie [Gilfoyle] has done a masterful
job at emphasizing how the resolution does *not* change the ethics code,”2100 and steered staff
away from introducing ethics into the charge of the advisory group.
Behnke was also heavily involved in selecting the members of the advisory group.
Because staff were highly attuned to criticisms that the PENS Task Force had not been balanced,
Behnke led APA staff in scheming to ensure that the appropriate mix of people were nominated
to the advisory group. On October 16, Garrison and Behnke compiled a list of suggested
nominees, which was constructed by selecting one representative from each of six key divisions,
two Board members, and at least one of the petitioners.2101 In an email to senior APA staff on
October 22, Behnke reminded staff that they needed to be “very mindful that this group will be
compared to PENS, and so we need to count bodies
[T]he ‘pro’ people will be counting
bodies. For that reason, I think at least half the people on the group must be considered ‘pro’ the
resolution.”2102
Although APA staff worked assiduously to ensure that the new advisory group was not
perceived as a second PENS Task Force, they nonetheless continued to use the same
manipulative tactics that had opened them to criticism. As with the PENS Task Force, it seems
likely that certain members of the group were handpicked by Behnke, and that he then
manipulated the process to make it appear as though the individuals were picked in a neutral
selection. For example, on October 14, Behnke began floating Elena Eisman’s name as a
potential chair for the advisory group.2103 However, it was not until October 15, the next day,
that Eisman emailed Behnke asking if it was too late to offer her services for the advisory group,
2099 APA_0102991.
2100 APA_0103021 (emphasis in original).
2101 APA_0103034; APA_0103035. When Gilfoyle reviewed the list, she raised a concern about the
nomination of Beth Wiggins, the wife of Science Directorate head Steve Breckler, because “we have
already had on staff hysband/ governance wife [sic] issue.” APA_0103043. Behnke acknowledged
Gilfoyle’s point, but reminded Gilfoyle that Wiggins was part of the Council “gang of five” that had been
intimately involved in the issues for years. APA_0073800. On November 11, after Wiggins agreed to
serve on the advisory group, Breckler emailed senior APA staff to disclose his relationship with Wiggins.
Gilfoyle emailed Garrison and Behnke to ensure that they had “discussed the problem of targeting Russ
and Debra” with Breckler, and Behnke responded that they “had a very good talk” and found that the two
situations were distinguishable. APA_0074079.
2102 APA_0073858.
2103 APA_0073784.
442
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
explaining that she had intended to email Kazdin earlier to volunteer.2104 The timing of these
communications strongly suggest that Behnke selected Eisman as his pick for chair of the group,
and then suggested behind the scenes that she volunteer to make it appear as though she was
selected from among a pool of applicants. One week later, Eisman was selected as chair of the
advisory group.2105 Although Behnke and other APA staff were clearly on notice that their
actions would be scrutinized for any hint that they were improperly influencing governance
processes, it appears likely that Behnke nonetheless continued to pull strings behind the scenes in
an attempt to manipulate the advisory group’s work.
On November 10, APA issued an announcement that the advisory group would be
chaired by Elena Eisman, and would include as members: Dan Aalbers, Armand Cerbone, Ruth
Fallenbaum, Corann Okorodudu, Brad Olson, Allen Omoto, Walter Penk, Bill Strickland,
Michael Wertheimer, and Elizabeth Wiggins.2106 As the group moved forward in preparation for
its meeting, it is clear that Behnke intended to remain in the background so as not to be
associated with the advisory group. When, in her email announcing the group to senior APA
staff, Garrison commented that Behnke had “taken the first stab at a process document for the
meeting,” Kelly commented in an aside to Behnke: “Ok, Mr. not-involved-in-the-advisory-
group-thing, I see you’ve drafted the meeting process note?!”2107 Although it is not clear
whether Behnke was asked to disengage from his involvement in the advisory group, or whether
he chose not to take a leading role because he understood that his association with PENS would
be toxic to the legitimacy of the advisory group, Behnke’s unobtrusive role was consistent with
his pattern of behavior over the years. He continued to operate behind the scenes to exert his
influence while assuring that his manipulations would remain undetected, except to his chosen
few confidantes.
The advisory group met on November 14 and 15 to discuss implementation steps for the
petition resolution and produce a report containing a wide range of options and recommendations
for Council to consider. During the meeting, Garrison proposed that the advisory group use
clarifying language “like the ‘Role of Psychologists in National Security Detention Settings’” to
title their report, so as to “clarify the context” and indicate that the report does not apply to
domestic jails or hospitals.2108
The advisory group ultimately recommended that the report be
titled “Psychologists and Unlawful Detention Settings with a Focus on National Security.”
On January 2, 2009, Garrison circulated the report internally to APA staff members,
commenting that it was “truly remarkable that the report is being presented as a consensus
document.” Garrison also noted that while there was a “persistent effort” on the part of the
petitioners to include references that would “speak to some enforcement mechanism… and to get
APA to assume some direct role in its implementation…,” she was able to “successfully
2104 APA_0642995.
2105 APA_0127700.
2106 APA_0103429; APA_0103430.
2107 APA_0103431.
2108 APA_0103573.
443
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
challenge such assertions with the aid of Michael, Armand, Bill, Beth, and Elena.”2109 Clearly,
Behnke’s strategy of carefully selecting members of the advisory group who supported his
agenda paid off, as they thwarted efforts to expand the scope of the petition resolution in a way
that threatened the flexibility of the military.
Immediately after it was announced to Council that the advisory group had been formed
and that its work product would be placed on the February 2009 agenda for consideration,
President-Elect James Bray registered his strong displeasure with Garrison for “overstepping
[her] authority” in announcing the plan because he had not yet decided that the issue would be
taken up at the February meeting.2110 Breckler explained to a small group of high-level staff that
Bray had maintained “for sometime [sic] that he [did] not want to deal with the interrogation
issue ‘on his watch,’ and that he will do all he can to stall, delay, and put on the back burner.”
Farberman responded that it would be important to convince Bray that “any attempt to slow the
implementation of the petition results will create a fire that will require some [sic] much of his
time and staff time that his real priorities for the year will be badly short-changed.”2111 After
much internal discussion between APA staff, CEO Norm Anderson, outgoing President Alan
Kazdin, and Bray, Bray was convinced that it would not be feasible to take the advisory group’s
report off the February agenda.
After Bray reviewed the report, he sent it to Council, noting that he had “a number of
concerns” about the report, but instructing that Council take up the item at its upcoming February
meeting.2112
As the Council meeting approached, Brad Olson circulated a message on the
advisory group’s listserv, proposing that a motion be put forth at Council to accept the report in
its entirety as APA policy. Upon reading Olson’s proposal, Behnke recommended that Garrison
draft a note to the advisory group to explain the process in order to temper their expectations
about what would happen at Council. He suggested that she assure the group that the petition
resolution was already policy and that she remind the group that Council’s “discussion would
take place in a very different political context than we’ve had for the past 8 years,” which might
reduce the sense of urgency to take further action.2113 Yet again, though Behnke had removed
himself from public engagement with the advisory group, he continued to maneuver behind the
scenes to frame the way that the report would be received and discussed by Council.
Shortly before the February Council meeting, Morgan Banks received a copy of the
report and contacted Behnke to complain that the report was “totally inconsistent with federal,
not to mention, uniformed, service.”2114 Two days later, on February 12, 2009, Banks sent an
email to a list of 50 military psychologists, expressing his concerns about the report. He wrote:
2109 APA_0104139.
2110 APA_0203826.
2111 APA_0103456.
2112 APA_0104552.
2113 APA_0074792.
2114 APA_0104577.
444
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
I have attached an unpleasant document for your review. . . Unfortunately, the
authors of this document, an APA presidential advisory group, have seen fit to
produce this document, and it will be presented to council next week
So far, I
have received consistent feedback [from JAGs] that the options identified in the
report for Council’s consideration are inconsistent with military service. In
particular, the informal legal opinions I have received imply that the
recommendations in the report, if adopted as APA policy, would require a
violation of your oath of office and of the UCMJ.2115
What was not clear to the military psychologists who received the letter was that Behnke
and Banks had collaborated to produce the letter together. Although Sidley found no evidence
revealing when precisely Behnke and Banks began drafting the letter, by midday on February 12
Banks had shared with Behnke his analysis regarding whether the advisory group’s report
conflicted with the oath of office for those serving in the military, and whether an officer
following the requirements of the report would be in conflict with the Uniform Code of Military
Justice. Banks commented that he had asked some JAGs to review his analysis, and at least one
had “answer[ed] in the strong affirmative, that it would violate our oath of office and the
Uniform Code of Military Justice.”2116 Late that afternoon, Banks and Behnke spoke by phone,
and it appears likely that they agreed that Behnke could contribute to the letter Banks was
preparing;2117 by early evening, Banks had sent Behnke a draft and Behnke had begun to suggest
ways to make the letter more impactful and precise.
As of the evening wore on, Banks wrote to Behnke that he “continue[d] to wordsmith,”
and when Behnke responded that he needed “just a couple more minutes,” Banks complained
“[y]ou killing me man…” When Behnke finished his revision, he sent the document to Banks
with the following message:
Morgan, take a gander. I’ve used a couple of specific examples that I think people
will find compelling, and I’ve tempered your language somewhat. The reason for
the tempering is that we’ve got friendlies who have colleagues on the advisory
group, and we don’t want to alienate any potential allies.2118
After the letter’s release, Behnke wrote in a confidential note to Kelly that he had seen a
draft of the letter, and that he had “corrected some inaccuracies regarding the Petition
Resolution, and recommended tempering the language.”2119 He added that his “sense is that
there is a feeling that they [military personnel] can live with the Resolution,” but “[t]hey see the
Advisory Report recommendations as going well beyond the Resolution . . . and that is what they
seem to be finding quite unsettling.”2120 Behnke also confessed to Garrison that he had seen an
2115 HC00021304.
2116 APA_0081997.
2117 APA_0074824.
2118 APA_0074803.
2119 APA_0104651.
2120 APA_0074824.
445
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
earlier draft and “softened what was some pretty harsh language.” Recognizing that he could not
continue to conceal his collaboration with Banks from the rest of the association, Behnke
nonetheless explained to Garrison that he would prefer to inform APA governance and staff of
his role directly instead of in writing.2121
Sidley found no evidence that Behnke did ever inform
senior APA staff or the Board of his involvement.
Just as they had done with respect to APA resolutions and public statements over the
previous three years, Behnke and Banks coordinated in secret to craft a nuanced message that
would defend the ability of DoD to use psychologists to the greatest extent possible while also
remaining palatable to an increasingly hostile APA membership. Though evidence of the joint
venture between APA and DoD diminished in the latter half of 2007 and 2008, it is clear that
Behnke and Banks remained committed to finessing messaging in a way that promoted APA’s
ability to protect military psychologists and their roles in facilitating interrogations.
When Banks’s letter began to circulate within APA, Behnke and Garrison worked to
place the note in context and explain the reaction of military psychologists to the advisory
group’s report. Garrison wrote to senior APA staff that she had been aware before seeing
Banks’s note of “a movement afoot to stir up concern about the report among military
personnel.”2122
Indeed, during the month of February, military psychologists were expressing a
great deal of confusion regarding whether the entire advisory group report would be adopted as
policy, and worrying that their scope of practice would be restricted if Council were to accept the
report.2123
Observing that the close relationships with DoD and military psychologists that he
had cultivated so carefully over the past several years was threatened, Behnke began
manipulating procedure and wordsmithing language to prevent the advisory group’s report from
hindering DoD’s mission.
Behnke and other APA staff began working behind the scenes on two parallel efforts to
ensure that the advisory group report would not threaten the work of military psychologists. In
the first of these efforts, APA staff began strategizing to ensure that Council would merely
“receive” the advisory group’s report and not accept or adopt it as APA policy. The issue first
arose when, in response to the concerns of military members, Breckler recommended that APA
focus on the message that “this is an advisory document, and Council is only being asked to
receive it.”2124
Breckler’s message sparked an internal debate regarding whether the motion
2121 APA_0074810. When Larry James drafted a letter critical of the advisory group’s report a few days
later, he also asked Behnke to comment on it before he sent it to Council. APA_0104750;
APA_0104751. Sidley found no record that Behnke responded to James’s request for advice.
2122 APA_0074818.
2123 For example, on February 13, Lisa Teegarden, Director of the BSCT at Guantanamo at the time,
wrote to Garrison that the advisory group’s report, if adopted as policy, would “require a violation of
military psychologist’s oath of office and of the UCMJ.” Similarly, on February 16, Scott Marrs, an Air
Force psychology consultant, reached out to Garrison to discuss what action she expected from Council.
APA_0719538. Garrison responded to both Teegarden and Marrs, emphasizing that the report “is not a
policy document, nor was it intended to become one,” and that “the petition resolution itself does not
amend the Ethics Code, nor is it enforceable in any other way.” APA_0104736.
2124 APA_0012788.
446
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
before Council was to receive the report or to adopt it. The distinction was critical: Council’s
receipt of the report would not imply that APA endorsed its recommendations, whereas adoption
of the report would raise more challenging policy implications. Garrison clarified that the
petitioners’ “goal is now for Council to receive the report and for a motion to be presented by
one of the other advisory group members on Council for ALL the options contained therein to be
approved by Council.”2125 As controversy and misinformation continued to swirl regarding
Council’s upcoming action, on February 16, Behnke and Garrison drafted an email for Eisman to
send to the advisory group, explaining the process for putting into effect the petition resolution
and for Council to receive, but not adopt, the advisory group report.2126
In the second effort, Behnke worked with Larry James to make sure that the title of the
advisory group report would not be nearly as impactful as the petitioners intended it to be. In the
days leading up to the Council meeting, Behnke and James began working closely together to
guide the advisory group report through Council in a way that was acceptable to military
psychologists. On February 18, James informed his colleagues that he would be meeting with
Behnke the following day to “develop a battle plan of attack. I will engage with intentisty [sic]
this weekend at the APA Council of Representatives meeting to fight this.”2127 It seems likely
that, at this strategic meeting, James and Behnke discussed the title of the advisory group’s
report and coordinated regarding how Behnke could influence the governance process to retain
the reference to “unlawful detention settings” in the title.
Within APA, there had been intense debate among staff, governance members, and
advisory group members regarding the inclusion of the word “unlawful” in the proposed title:
Psychologists and Unlawful Detention Settings with a Focus on National Security. While it
appears that President James Bray opposed the use of the “unlawful” qualifier, several petitioners
felt very strongly that the title should not be changed because they interpreted the term unlawful
as clarifying that the report did not apply to domestic prison, jail, and hospital settings. Indeed,
Wagner indicated that the title was “THE #1 ISSUE for [Aalbers] that could not be changed from
all the recommendation in the AG [advisory group] report.”2128 Unknown to the petitioners, and
indeed to anybody other than Behnke and his close circle of confidantes, was that the inclusion
of the qualifier “unlawful” was also a priority for DoD. As Behnke explained to Garrison:
What James [Bray] appears not to understand is that *as soon as* many
psychologists see the word “unlawful,” they will either: 1. Dismiss the resolution
out of hand as not applying to their setting; or 2) go to their JAG, who will tell
2125 APA_0719507.
2126 APA_0104716.
2127 APA_0104874. In response to Banks’s February 12 letter, Mel Gravitz suggested that the APA
President would have the authority to invite Banks or another military representative to speak at Council
when the “ill-conceived ‘report’ is presented.” After Behnke informed him that James was on Council as
a Division 38 representative. Gravitz agreed that James would be best to make comments.
APA_0104638. Minutes from the Council meeting do not reveal whether James spoke to Council, and
Sidley was unable to find other evidence suggesting that he did so.
2128 APA_0104783 (emphasis in original).
447
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
them that the setting complies with Geneva and the UN Convention Against
Torture, so they’ll consider it irrelevant to their work.2129
Recognizing an opportunity to both protect DoD’s position and appear in a conciliatory
light to his critics, Behnke quietly coordinated with his most trusted team members to ensure that
the petitioners carried the day in the battle over the report’s title.
The next day, on February 19, the Board met to discuss the advisory group report.
Following the meeting, Garrison reported to the advisory group that “[a]fter considerable
discussion with James [Bray] (focused on the importance of the title) and subsequent discussions
with the Board, the Board, recognizing the importance of this matter to the group and the time
spent on it, agreed to support the title recommended by the advisory group.”2130 After this, the
Council agenda item was amended to reflect the title originally suggested by the advisory group:
That the Council of Representatives adopt the following title for the petition
resolution to clarify that it is not intended to be applied broadly to jails, detention
centers, and psychiatric hospitals: "Psychologists and Unlawful Detention
Settings with a Focus on National Security" and requests that the title be
incorporated into the minutes, along with the resolution, and that the petition
resolution ballot be included as an attachment.
On February 22, 2009, the Council of Representatives met and voted to receive the
advisory group report, with the title “Psychologists and Unlawful Detention Settings with a
Focus on National Security.”2131 In an internal email, Garrison congratulated APA staff
members on having arrived at a proposal that was “widely accepted by folks ranging from Debra
Dunivin [sic] to Dan Aalbers.” Bray echoed Garrison’s sentiment, commenting that he had been
thanked by both Dan Aalbers and Larry James, who was “satisfied with the result.”2132
Indeed, James was extremely satisfied that the strategy he and Behnke had coordinated
together had been resoundingly successful. After the Council meeting, James reported to a group
of military psychologists that a “friendly amendment” had been passed. He explained that they
had “negotiated” three points:
1. the Advisory Group report will be called Psychologists Working in Unlawfull
[sic] Detention Facilities. This is significant since we don’t have any
psychologists working in “Unlawful Detention Facilities.” . . .2133
2129 APA_0104785 (emphasis in original).
2130 APA_0104804.
2131 Approved Minutes of the Council (Feb. 20 - 22, 2009) (on file with Sidley).
2132 APA_0104861.
2133 James referenced a New York Times article that had recently been published and reported that the
review of Guantanamo that President Obama requested had been completed and had concluded that
Guantanamo “more than complies with United Nations Standards/guidelines.” During his interview with
Sidley, Behnke claimed that the term “unlawful” had not been of practical significance because at the
448
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
2. The Advisory Group’s report was “received” by the Council of
Representatives. NO part of the crazy language in the advisory group’s
recommendation section will be adopted! . . .
3. The real victory is that no part of the recommendations will be apart [sic] of
concil’s [sic] report or APA policy. It will only say that psychologists can’t work
in unlawfull [sic] detention facilities).2134
Notably, James’s declaration of victory rested on precisely the two issues that APA staff,
led by Behnke, had labored over in the weeks leading up to the Council meeting.
Behnke clearly understood that the twin strategies APA pursued in the weeks before
Council would be beneficial to the military. In a private message titled “Big Picture” to Garrison
on February 14, before APA governance had taken any action, Behnke clarified that “if the
Board recommends 1. Action complete; 2. Title; 3. Receive the Report, and that’s what Council
does, we’re going to be fine on all fronts. There will be people who aren’t thrilled, but we’ll be
fine.”2135
It is likely that Behnke discussed the dual strategy with James when the two met to
draw up “battle plans” for Council; after their efforts proved successful, James in turn gleefully
reported the victory to his military colleagues and explained the great significance of both
strategic points. As James explained in his interview with Sidley, his opinion was that the APA
critics opposed to his position failed to “do their homework” regarding the legal effect of the
language they chose.2136 What James did not acknowledge, however, was that he and DoD had
the benefit of APA’s chief strategist serving as their tutor.
Even at this late date, as the political climate changed and the DoD’s use of psychologists
in interrogation roles became less critical, Behnke’s “big picture” still focused on the bottom line
needs of his partners in DoD. As the issue of psychologists involved in interrogations continued
to arise, Behnke consistently coordinated with his partners in DoD and to strategize regarding
ways to shape APA policy in a way that protected the military’s interests.
time that Council acted, Obama had not yet declared Guantanamo to be lawful. Behnke interview (June
8, 2015). Factually, Behnke was incorrect: As James noted in his email, the New York Times reported
two days before Council met that Guantanamo was in compliance with the Geneva Conventions. See
William Glaberson, Guantanamo Meets Geneva Rules, Pentagon Study Finds, New York Times (Feb. 20,
explanation is disingenuous because, based on his email to Garrison only days before the Council
meeting, he clearly understood that military psychologists would interpret the term “unlawful” as placing
Guantanamo outside the scope of the report.
2134 APA_0104874.
2135 APA_0646302.
2136 James interview (May 1, 2015).
449
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
IX.
APA’S RESISTANCE TO REVISIONS TO STANDARD 1.02, LED BY BEHNKE
At the same time that Council considered the series of resolutions related to
psychologists’ involvement in interrogations, APA governance and Ethics Office staff also dealt
with Council’s requests to amend Standard 1.02 to include a clause that would mandate that
psychologists act “in keeping with the basic principles of human rights.” After APA adopted the
PENS report as policy, this issue began to surface in discussions between various APA divisions
and committees and in the form of resolutions and information items to Council.
Although demands for a revision to Standard 1.02 began immediately after the PENS
Task Force issued its report, APA’s clear strategy, devised by Behnke, was to delay taking any
action to revise the Ethics Code for as long as possible. APA, through Behnke, consistently
issued statements that made it appear as though he was giving serious consideration and deep
thought to the proposed revisions, but it was not until late 2008, three years later, that the
association began to seriously engage with APA members and Council representatives about
adding the relevant modifying language. Even then, Behnke continued to block efforts to make a
simple revision to Standard 1.02 by pushing for a full revision of the Ethics Code, a process that
would have taken years longer.
It took close to five years from the time Council first requested that the Ethics Committee
consider a revision until the amendments to Standards 1.02 and 1.03 were finally adopted. And
during that time Behnke engaged in a strategy of obstruction and obfuscation to continuously
delay the adoption of the simple revision to the Ethics Code.
As early as the August 2005 Council meeting, APA was already considering the need to
revise Standard 1.02 of the Ethics Code. At that meeting, Council requested that:
[t]he APA Ethics Committee review the discrepancy between the language of the
Introduction and Applicability section of the Ethical Principles of Psychologists
and Code of Conduct and Ethical Standard 1.02, and make a recommendation to
the Board of Directors concerning adding the words ‘in keeping with basic
principles of human rights’ to Ethical Standard 1.02. Council requests that this
process move forward as expeditiously as reasonably possible, recognizing that a
proposed amendment to the Ethical Principles of Psychologists and Code of
Conduct will be subject to the review procedures required by Association Rule
30-8, Standards and Guidelines, and final Council action.”2137
Notably, Council did not simply demand that the Ethics Committee make the addition,
but it is clear that Council desired the change, and that Behnke and Ethics Office staff
understood Council’s intent. Shortly after the meeting, a staff member emailed Behnke to
identify addressing the Ethics Code revision as a “concrete task” requested by Council.2138
2137 Approved Minutes of the Council (Aug. 17 & 21, 2005) (on file with Sidley).
2138 APA_0045782.
450
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
Shortly after receiving Council’s directive, Behnke circulated a document produced in
response to Council’s request to Gilfoyle and Childress-Beatty for legal review.2139 The
response, written on behalf of the Ethics Committee, rather than making a clear recommendation
for or against the proposed revision requested more time for careful consideration:
The Ethics Committee has carefully reviewed Council’s request and believes, as
explained below, that policies adopted by the Council of Representatives, the
Board of Directors, and the Ethics Committee make APA’s position clear and
provide sufficient guidance to members at the immediate present time.
Accordingly, the Ethics Committee respectfully recommends that the Committee
be given more time to engage in a process that will allow a fuller understanding of
the questions and concerns that gave rise to this proposed change, a deeper
consideration of whether the proposed change is the best way to address the
underlying considerations, and more extensive examination of the impact adding
such language to the enforceable section of the Ethics Code may have.
…
The Ethics Committee wants to give this proposed change the attention and
consideration that comes with a full examination of the Ethics Code, with broad
participation from the entire association and ample opportunity for reflection,
comment, and feedback, before making a recommendation concerning the
proposed change. The Committee also wants to benefit from the processes that
are currently underway, so that it may review what comments are submitted
regarding the PENS Task Force report and what specific examples the Task Force
report commentary addresses [sic]. The Committee believes that by benefiting
from these processes it will be in the best position to serve the APA well with a
considered, thoughtful, and constructive recommendation.2140
Sidley found several drafts of the Ethics Committee’s response, showing that Behnke,
Jones, Moorehead-Slaughter, and others supported the strategy of deferring action on this
issue.2141
The clear theme running throughout the response to Council’s request is that the Ethics
Committee had no intention of moving forward with a revision “expeditiously,” as Council had
requested. Rather, it is clear from the reference to “broad participation,” that this response was
2139 APA_0049824.
2140 APA_0049825. The Ethics Committee’s response to Council’s request for a recommendation was
also disingenuous in its reliance on Council’s 2005 resolution that “there are no exceptional
circumstances whatsoever, whether induced by a state of war or a threat of war, internal political
instability or any other public emergency, that may be invoked as a justification for torture, including the
invocation of laws, regulations, or orders.” Behnke and the Ethics Committee would have been well
aware that Council’s statement was not an enforceable interpretation of the Ethics Code, and furthermore
that Standard 1.02 would have permitted a psychologist to follow an order in conflict with Council’s
ethics statement.
2141 See, e.g., APA_0049832-33; APA_0049827- 28; APA_0043320- 24; APA_0049418- 19;
APA_0049380- 82; APA_0046397; APA_0046402.
451
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
intended to halt progress on the proposed revision. This response was the first in what became a
pattern of obstruction and delay from APA, an approach endorsed and orchestrated by Behnke as
Director of the Ethics Office.
In February 2006, Council received an update regarding the Ethics Committee’s
discussion of its request to consider the proposed revision.2142 Attached as an exhibit to the
information item was the September 2005 recommendation of the Ethics Committee that Behnke
had earlier circulated for legal review.2143
The minutes from the February 2006 Council meeting
did not reveal that Council renewed its request to the Ethics Committee to consider revisions to
Standard 1.02. It seems likely that Council had shifted its attention to other resolutions and
motions regarding interrogations and torture and had allowed the revision to slip from its notice.
Instead, at the February meeting, Council referred a new business item titled “Torture and Cruel,
Inhuman or Degrading Treatment or Punishment” to the Ethics Committee, the Board for the
Advancement of Psychology in the Public Interest (“BAPPI”), the Board of Professional Affairs
(“BPA”) and the Policy and Planning Board (“P&P”).2144
Shortly after the February 2006 Council meeting, Behnke began reaching out to
representatives from state psychological boards to build relationships with groups that could
become potential allies in his opposition to the revision of Standard 1.02. On March 9, 2006,
Moorehead-Slaughter emailed two representatives from the Association of State and Provincial
Psychology Boards (“ASPPB”) to discuss possibilities for collaboration between the APA Ethics
Committee and the ASPPB. As was his habit, Behnke had earlier drafted the message for
Moorehead-Slaughter to send to the representatives in anticipation of their attendance at an
Ethics Committee meeting.2145 One of the specific issues that Behnke wanted to discuss was the
proposed revision to Standard 1.02. Through Moorehead-Slaughter, he commented that he was
“very interested in your perspective on this proposal, since the proposal identifies an instance in
which a psychologist would potentially not follow state law. I am especially interested in your
sense of how this change would affect the likelihood of a state’s adopting the APA Ethics Code
by statute or regulation.”2146
In drawing on the specter of psychologists being ethically required
to disobey state laws and court orders, Behnke was aware that he was tapping into explosive
issues for state psychological associations and ethics committees. Behnke’s description of this
parade of horribles helped him to pull strings behind the scenes and align the state psychological
associations behind his strategy of opposing the Standard 1.02 revision.
When Judith Glassgold, Chair of the New Jersey Psychological Association Ethics
Committee, sent a draft message to Behnke regarding her opposition to the revision in June
2006, Behnke took full advantage of the opportunity to influence the position of the state
association while ensuring that his influence would not be visible to the public. Although
Glassgold’s initial statement in opposition to the revision aligned with Behnke’s stance, he
2142 Approved Minutes of the Council (Feb. 17-19, 2006) (on file with Sidley).
2143 APA_0060010.
2144 Approved Minutes of the Council (Feb. 17-19, 2006) (on file with Sidley).
2145 APA_0060030.
2146 APA_0060009.
452
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
requested to speak to her by phone and used the opportunity to shape her message and thinking
on the issue. After their conversation, Glassgold affirmed that Behnke had “helped clarify my
thinking and many ideas that were only partially formed.”2147 Behnke then encouraged
Glassgold to continue her opposition to the revision and to pursue her idea of asking the
Divisions for Social Justice (“DSJ”) to take the lead in forming a support network for colleagues
in crisis, explaining that this approach, rather than being punitive, would “assume the best of
these psychologists” and extend “a supportive and affirming hand” to psychologists in need.2148
When Glassgold responded that she would like to credit Behnke with the idea, Behnke
commented that he was “a bit radioactive with the people who are most interested in these
issue[s], and [he was] much more interested in good ideas getting into the discussion than in
receiving any credit, so probably best not to mention [his] name in connection with it.”2149
During the spring of 2006, Behnke clearly worked to marshal support for his position on
the Ethics Code revision, reaching out directly and through others to the state psychological
associations. However, aware that the strength of the state associations’ endorsements rested on
their independence from any association with him, Behnke controlled the messaging to make it
appear as though other entities and groups were speaking out in opposition to the revision
independently of his influence.
In August, Council once again neglected to call for additional action from the Ethics
Committee regarding the proposed revisions to Standard 1.02. As with the February 2006
Council meeting, it is likely that Council had focused its attention on related matters. At the
August meeting, Council heard presentations from Surgeon General Kevin Kiley regarding the
role of psychologists in supporting interrogations and from Steven Reisner, who opposed the
involvement of psychologists in such work. Council also considered a new business item
regarding psychologists’ participation at United States detention centers, an item that would
eventually become the moratorium resolution considered at the August 2007 Council
meeting.2150
Finally, Council voted to adopt the Resolution Against Torture and Other Cruel,
Inhuman, and Degrading Treatment or Punishment.2151 Thus, it seems likely that Council did
not immediately pursue the Ethics Code revision because it had turned its attention to related
resolutions and motions designed to prohibit psychologists from participating in interrogations.
Although Council did not formally address the Ethics Code revision in a business item in
August 2006, members of the Ethics Committee met with concerned APA members to discuss
their proposals for revisions to Standard 1.02. Shortly after, Behnke wrote a letter on behalf of
the Ethics Committee to the Divisions for Social Justice to follow up on their meeting during
Convention and to seek clarification on DSJ’s desired changes to Standard 1.02.2152 Behnke
2147 APA_0060660.
2148 Id.
2149 Id.
2150 Approved Minutes of the Council (Aug. 9 & 13, 2006) (on file with Sidley).
2151 Id.
2152 APA_0061383.
453
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
proposed four possibilities for revisions to the language, based on his discussions with Olson and
Altman:
1. Have the language in ethical standard 1.02 mirror exactly the language in the
Introduction and Applicability (that is, add the phrase “in keeping with basic
principles of human rights” to standard 1.02); 2. Add a more specific phrase to
standard 1.02, for example that in cases of a conflict between ethics and law,
psychologists may adhere to the law “but may never engage in torture or cruel,
inhuman or degrading treatment”; 3. Add specified language from the Universal
Declaration of Human Rights into the Ethics Code . . .; 4. Add the phrase “in
keeping with basic principles of human rights” to standard 1.02, and then have a
footnote that references relevant human rights texts, such as the Universal
Declaration of Human Rights.2153
On behalf of the DSJ, Brad Olson responded and indicated that, of the four possibilities
presented by Behnke, his preference was the fourth because it “provides the best combination of
specificity and yet generality; brevity and yet an encompassing approach.”2154 Olson added that
he would like for DSJ and the Ethics Committee to have further discussions about the rationale
for the revision and “why it should be made with haste rather than waiting for the major set of
revisions.”2155
Shortly after Olson sent his response, Behnke attempted to speak to him by phone.2156 It
seems likely that the two spoke and agreed to present their proposed revisions to the Committee
on Legal Issues (“COLI”) the following week. Just days before the COLI meeting, Behnke sent
Olson a letter from the Ethics Committee, which raised several issues with Olson’s preferred
revision,2157 an option which Behnke himself had presented only weeks earlier. Behnke also
proposed to research the statements of other ethics codes with respect to conflicts between ethics
and law, a process that would no doubt take a significant period of time. Behnke’s
communications with Olson demonstrate that his strategy was to extend discussion and delay
action on a revision to the greatest extent possible.
Although Behnke likely presented the discussion with COLI as an opportunity to move
forward on the proposed revisions, the reality is that he utilized committee review as yet another
delay tactic. At the COLI meeting in early November 2003, Behnke was present for Olson’s
presentation of the proposed revision to Standard 1.02. Upon consideration of the proposed
language, COLI stood firmly against adding in the phrase “in keeping with basic principles of
human rights,” reasoning that adding the proposed language to enforceable parts of the Code
could “lead to unanticipated consequences.”2158 As a result, COLI “strongly cautioned against
2153 Id.
2154 APA_0061382.
2155 Id.
2156 APA_0061395.
2157 APA_0063026.
2158 Approved Minutes of the COLI (Nov. 3-4, 2006) (on file with Sidley).
454
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
incorporating the proposed language” into the Ethics Code. Although Sidley has found no
documentary evidence proving that Behnke influenced COLI’s position, it seems likely that he
swayed COLI to take the stance that it did. Behnke engaged in a pattern of using COLI, among
other governance committees, to obstruct member-initiated actions that he opposed,2159
recognizing that COLI as a body was generally risk-averse and staffed by individuals who
complied with the APA agenda. Given COLI’s generally protective attitude and the strong
similarities between COLI’s objections to the proposed revisions and those raised by the Ethics
Committee in its initial response in September 2005, it seems extremely likely that Behnke
influenced both Committees in their stances against the proposed Standard 1.02 revisions.
As criticism began to build in 2007 regarding APA’s inaction on the proposed Ethics
Code revision, Behnke continued to pursue his strategy of engaging in discussion and
consultation as a means of delaying and pushing back on concrete action. In January 2007,
Behnke responded to criticism from Steven Reisner regarding the slow pace of the revision,
which Reisner understood had been directed by Council more than a year and a half earlier, by
clarifying that Council had not directed the Ethics Committee to revise the Ethics Code, but
rather to make a recommendation regarding whether such a revision should occur.2160 Behnke’s
dialogue with Reisner on this point continued over the next several months, and in July 2007,
Reisner reiterated his point that Council directed the Ethics Committee to change the language in
Standard 1.02. Behnke again responded that he did not “see either complexity or ambiguity in
the item Council passed. Council directed the Ethics Committee to review language in the Ethics
Code and to make a recommendation, following the process set forth in the Association rules.
Consulting with the president of the DSJ, meeting with boards and committees at the
Consolidated meetings, and reviewing how other health and mental health association codes of
ethics address this issue are all part of that process.”2161
Behnke also clarified that Standard 1.02
was not changed in the 2002 revision because of any issue relating to interrogation, checking
with APA staff to ensure that the revisions to the Standard 1.02 language had occurred prior to
the 2000 election. Reisner continued to express frustration with Behnke’s answers, complaining
that Behnke’s responses refused to engage with the substance of his critiques.
It is clear that Behnke was aware that he was not engaging with Reisner’s substantive
points and was instead engaging in word games to put off further action. In a rare admission,
Behnke referenced his exchange with Reisner in an email to Farberman and commented that “I
may have been a little bit bad here.”2162 Although we cannot say with certainty which part of
Behnke’s response to Reisner was “bad,” Behnke was likely referring to his manipulation of
Reisner’s use of the word “violation” as a means of avoiding the underlying substantive criticism
that APA had failed to appropriately define the ethical violation. Behnke’s admission to being “a
2159 For example, APA recommended that Kimmel present his report from the Task Force on the Effects
of Efforts to Prevent Terrorism to COLI as part of its attempt to sideline the report. Approved Minutes of
COLI (Nov. 6, 2004) (on file with Sidley). In 2007, Neil Altman was also asked to present his proposed
moratorium resolution to COLI, which expressed strong objections to the resolution. Approved Minutes
of the COLI (Mar. 24, 2007).
2160 APA_0063427.
2161 APA_0066778.
2162 APA_0066784.
455
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
little bit bad” demonstrates that he consciously played sophisticated games with language, and
used his ability to parse words to his advantage in delaying the revision of Standard 1.02.
Meanwhile, in April 2007, Ken Pope sent an email to members of the Ethics Committee
asking for a consult on how to interpret Standard 1.02 because it “seems to take a stance at odds
with the Nuremberg principle that one could not set aside personal responsibility on the basis of
just following the state’s law or orders from an authority.”2163 Within hours, Pope received
several responses from members of the Ethics Committee acknowledging the problem that Pope
had raised, including a response from Behnke clarifying that “[w]e all agree there are laws one
must not follow” and explaining that “[f]inding the right language to identify which laws one
may never follow is not so easily done.”2164 When Pope responded to the comments provided by
the Ethics Committee and reiterated his concerns the next day, Behnke again responded by
defending the then-current iteration of Standard 1.02 as permitting civil disobedience in the face
of an unethical order.2165
The exchange between Behnke and Pope extended over the next
several weeks, as the two worked through hypothetical situations and parsed language.2166
Behnke’s dialogue with Pope is consistent with his strategy of engaging in discussion regarding
Standard 1.02 without proposing language or taking any action to move the revision forward.
On February 6, 2008, Pope resigned from APA because of his disagreement with
“decisive changes that APA has made in its ethical stance during the past 6+ years.”2167 In his
resignation letter, Pope took particular issue with the revision to Standard 1.02 completed in
2002: “This new enforceable standard, in my opinion, contradicts one of the essential ethical
values voiced in the Nuremberg trials. Even in light of the post-9/11 historical context and
challenges, I believe we can never abandon the fundamental ethical value affirmed at
Nuremberg. An attempt to modify Standard 1.02 was placed only in the nonenforceable section.
In the 5 years since creating this new enforceable ethical standard in a sharp break with the past,
APA chose to make no qualifications, restrictions, or other modifications to Standard 1.02 in the
code’s enforceable section.” In response to Pope’s resignation, Behnke and Linda Campbell
collaborated to write a letter responding to several of the issues raised in Pope’s letter, and
consulted with Melba Vasquez regarding the substance and tone.2168 Melba responded that she
thought that the clarifications were helpful, but that she did not think that Pope would reconsider
his resignation unless Standard 1.02 was amended to remove the language that he thought
provided a Nuremberg defense. Vasquez also commented that Pope had sent her two emails
regarding his resignation.2169
2163 APA_0091732.
2164 Id.
2165 APA_0120846.
2166 APA_0120859; APA_0120858.
2167Kenneth S. Pope, Why I Resigned from the American Psychological Association, available at
2168 APA_0070582; APA_0070583.
2169 APA_0098412.
456
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
Behnke asked Vasquez whether she could ask Pope “whether he has specific language in
mind and, if so, whether he could send it” to Behnke.2170 It seems likely that Vasquez made
Behnke’s request to Pope because Pope responded that he could not provide any suggestions for
revised language until he understood the rationale for adopting the language in 2002. He
indicated that he had heard others speculate that the language might have been adopted because
people felt that the “Nuremberg ethic” was not necessary in a democracy or because it was “not
practical given post-9-11 threats.”2171
Both Behnke and Vasquez responded to Pope’s inquiries,
but they took diverging approaches: Vasquez responded to Pope’s request with vague
recollections that the standard was changed to address situations where psychologists felt that
they would have to leave their jobs or face ethical charges.2172 Behnke, on the other hand,
ignored Pope’s request for information and instead asked him to explain why he felt that it was
necessary to resign from APA as those reasons related to Standard 1.02.2173 Behnke’s emails
indicate that he intended to ask Pope in his initial request to explain the connection between
Standard 1.02 and his resignation from APA, but it is clear that Pope interpreted the email as a
request for suggested revisions.2174
Likely recognizing that they were not presenting a unified
message, Behnke asked Vasquez if they could discuss how to respond to Pope,2175 and several
days later Behnke took the lead in reiterating his request that Pope explain his reasons for
resigning rather than suggest proposed language for a revision.2176 Sidley did not uncover any
evidence that Pope ever responded to Behnke’s last request for clarification.
Behnke’s exchange with Vasquez and Pope is yet another example of his attempts to
deter efforts to revise Standard 1.02: even when a well-respected former Chair of the Ethics
Committee volunteered to carefully consider the issues and develop proposed language for a
revision, Behnke ignored his requests for the information that would help do so. Behnke was
interested not in moving forward with a revision, but in understanding how to develop a response
that explained away or undermined growing criticism of the then-current Standard.
Behnke’s strategy to continuously suppress suggestions for revision was successful in
delaying action on this issue for several years. It was not until late 2008, more than three years
after Council first requested that the Ethics Committee consider a revision to Standard 1.02, that
APA finally put together a Committee to assess the issue. The Committee included Wagner,
Van Hoorn, Wiggins, Okorodudu, Strickland, Brad Johnson, and Jeff Barnett. In October 2008,
Behnke suggested that the revision to Standard 1.02 might be best accomplished by
incorporating an internal reference to Standard 3.04, relating to avoiding harm. He identified a
number of advantages to this “brilliant solution,” including that it both avoided reference to
2170 APA_0635265.
2171 APA_0071722.
2172 Id.
2173 APA_0071724.
2174 APA_0120932.
2175 APA_0071722.
2176 APA_0120929.
457
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
external documents and put the “do no harm” ethic at center stage.2177 Wagner, one of the APA
members interested in revising the Standard, responded that the incorporation of a reference to
Standard 3.04 would not be sufficient because trying to avoid harm was not equivalent to
adhering to basic principles of human rights.2178 Others working with Wagner to revise Standard
1.02 also agreed that Behnke’s proposal could “produce perceived or actual loopholes.”2179
Behnke agreed to put together a list of proposed revisions for the committee, and Wagner
suggested that it might be best to remove the language clarifying that psychologists “may adhere
to the law” altogether.2180
In early 2009, the Ethics Committee issued a call for comments from APA members and
the public regarding suggested revisions to Standard 1.02.2181 As the comment period
progressed, Behnke once again turned to his trusted advisors in DoD, Dunivin and Banks, this
time to ask them to influence APA policy openly by “encourag[ing] folks to comment,”
presumably talking about their colleagues and peers in DoD. Within twenty-four hours, both
Banks and Dunivin had provided comments on the APA website.2182
In June 2009, in anticipation of the upcoming Council meeting, the Ethics Committee
circulated a recommendation to the Board that any revision of Standard 1.02 should be
accomplished in the context of a full revision of the Ethics Code rather than piecemeal. Behnke
drafted a letter for Jeff Barnett, the Chair of the Ethics Committee, to send to the Board
conveying this recommendation.2183
As the subcommittee convened in 2008 continued their discussions in preparation for the
August 2009 Council meeting, Garrison, Farberman, and other senior level staff struggled to
cabin the group’s proposals into APA’s normal revision process. When Gilfoyle reached out to
Behnke for clarification regarding which language was being discussed, Behnke made a rare
direct admission of his attempts to deter progress on the revision. He responded to Gilfoyle,
“[y]es - I can get you up to speed quickly. Everyone else I am trying to slow down.”2184
Behnke’s comment to Gilfoyle demonstrates that, even as late as 2009, Behnke continued to do
what he could to obstruct member efforts to revise Standard 1.02.
As the August 2009 Council meeting approached, however, Behnke was increasingly
acting alone and without the support of other APA senior staff. In response to staff’s inquiries
regarding a definitive timeline for the revision, Behnke clarified that Barnett saw the discussion
about revising Standard 1.02 as the beginning of the full revision process, which during the last
2177 APA_0073846.
2178 Id.
2179 Id.
2180 APA_0073854.
2182 APA_0121219; APA_0122379.
2183 APA_0076428.
2184 APA_0076581.
458
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
revision took five years.2185
When Garrison reviewed the Ethics Committee’s message to the
Board regarding its recommendations on the proposed Standard 1.02 revision, Garrison asked
Behnke whether the Ethics Committee had considered whether there might be other
modifications that would address the critics’ underlying concerns. Behnke responded that “the
Committee does a very nice job of seeing this issue as the beginning of the next ethics code
revision, so it is not a firm ‘don’t do this,’ but rather a ‘this should be done in the context of a full
ethics code revision,’ making for a much softer landing.”2186 Farberman weighed in to disagree
with Behnke’s assessment: “Sorry to be doom and gloom but I’m not sure this decision (no
specific change to the code now) will provide a soft landing; in fact I think it will be criticized as
foot-dragging. That’s not to say it’s the wrong decision but let’s be prepared for the criticism.”
Behnke’s response was that they should “look to history” for defense of the pace of the revision,
commenting that the last revision took more than five years and would need to take account of
the “*many* constituencies weighing in.”2187 These exchanges show that Behnke continued to
obstruct efforts to revise the Ethics Code, but that he was at this point left stranded to defend his
position without the continuing support of other high-level staff, who had come to accept that
continued delay would no longer be palatable to APA members.
In addition to staff, it seems likely that APA governance also became increasingly hostile
to Behnke’s attempts to delay. During his interview with Sidley, 2009 APA President James
Bray said that he pushed hard for the revision of Standard 1.02, believing that they should not
wait and go through the long process of revising the full Ethics Code. Bray recalled that he got
significant pushback, specifically from the Ethics Committee and Nathalie Gilfoyle, who
cautioned him against putting the item on Council’s August 2009 agenda,2188 but Sidley could
find no evidence that Gilfoyle or other staff did indeed oppose him. There is evidence that Bray
supported a proposed revision: In July 2009, he wrote to John Neafsey, a vociferous critic of
APA’s position on these issues, that “[t]his President and the APA Board of Directors plans to
support a business item at the APA Council of Representatives meeting in August that will direct
the APA Ethics Committee to propose language by a time certain this fall that will appropriately
and effectively amend this Ethical Standard. After a public comment period, the Council will act
on the proposed revision to Ethical Standard 1.02 at its February 2010 meeting.”2189 Despite
Bray’s statement in a separate email that his response to Neafsey was the “standard email”2190
and that he did not want to deal with the interrogation issue “on his watch,”2191 Bray told Sidley
that once he understood the ethical concern, he came to be strongly in favor of amending 1.02
and made it a point to enact the revisions during his presidency.2192 Once he made it clear he
2185 APA_0076430.
2186 APA_0076428.
2187 APA_0076431 (emphasis in original).
2188 Bray interview (June 15, 2015).
2189 APA_0076727.
2190 APA_0108218.
2191 APA_0103456.
2192 Bray interview (June 15, 2015).
459
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
would not change his mind on amending the Standard, he said he and Gilfoyle arrived at a
compromise that the matter would be taken up at the February 2010 Council meeting.2193
In July 2009, after Harper’s Magazine published an article titled “The APA’s Nuremberg
Defense,” Behnke reached out to Banks to ask for some history on Directive 3115.09, which the
article claimed aligned with APA’s revision to Standard 1.02 to give psychologists an “out”
under the Ethics Rules. Banks quoted the relevant language of the Directive for Behnke,
commenting that the author was “REALLY twisting the verbiage and intent” to argue that the
Directive permits torture.2194
Banks followed up with an additional email that identified some
slight modifications between the 2005 and 2008 versions of the Directive, which he did not think
changed the substantive point that the “document prohibits mistreatment in almost every
paragraph.”2195
Finally, during the August 2009 Council meeting, four years after Council’s original
request that the Ethics Committee consider revisions to Standard 1.02, Council explicitly
directed the Ethics Committee to take action and imposed a time limit for it to do so. Council
directed the Ethics Committee to propose language that would resolve the discrepancy between
the language in the “Introduction and Applicability Section of the Ethical Principles of
Psychologists and Code of Conduct,” and Standards 1.02 and 1.03 so that these Standards “can
never be used to justify, or as a defense for, violating basic human rights.” Council’s mandate
included an instruction that the Ethics Committee submit its proposed language in a time period
that permitted its addition to the February 2010 meeting agenda. In February 2010, Council
voted to approve the following amendments to Standards 1.02 and 1.03:
1.02 Conflicts Between Ethics and Law, Regulations, or Other Governing Legal
Authority. If psychologists’ ethical responsibilities conflict with law, regulations,
or other governing legal authority, psychologists clarify the nature of the conflict,
make known their commitment to the Ethics Code, and take reasonable steps to
resolve the conflict consistent with the General Principles and Ethical Standards
of the Ethics Code. [If the conflict is unresolvable via such means, psychologists
may adhere to the requirements of the law, regulations, or other governing legal
authority.] Under no circumstances may this standard be used to justify or defend
violating human rights.
1.03 Conflicts Between Ethics and Organizational Demands. If the demands of
an organization with which psychologists are affiliated or for whom they are
working are in conflict with this Ethics Code, psychologists clarify the nature of
the conflict, make known their commitment to the Ethics Code, and [to the extent
feasible, resolve the conflict in a way that permits adherence to the Ethics Code.]
take reasonable steps to resolve the conflict consistent with the General Principles
2193 Id.
2194 APA_0076649 (emphasis in original).
2195 APA_0108261.
460
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
and Ethical Standards of the Ethics Code. Under no circumstances may this
standard be used to justify or defend violating human rights.2196
Behnke’s efforts to obstruct and delay succeeded in postponing any real action on Standard 1.02
for nearly five years after Council first requested that the Ethics Committee consider a revision.
Though APA members and critics eventually succeeded in forcing APA to accept an amendment
to Standard 1.02, it was in spite of Behnke’s vigorous opposition to their efforts at every turn.
Although Sidley was unable to uncover any clear documentary evidence proving that
Behnke opposed the revision to Standard 1.02 in an attempt to benefit DoD or national security
psychologists, such an explanation would fit with his general approach to be protective of
military psychologists and others working in national security settings. Behnke had been aware
as early as 2004 that some government personnel might view Standard 1.02’s language,
characterized by critics as a “Nuremberg defense,” as helpful to them in pursuing national
security work.
At that point, shortly after the July 20, 2004 meeting at the APA, Steven Band, Chief of
the Behavioral Science Unit at the FBI, had emailed Behnke and noted that “[d]uring this time of
war, [he was] drawn to part 1.02 of our (APA’s) ethical principles and take comfort in [his]
interpretation of this standard.”2197
Thus, it seems likely that Behnke had the impression that
retaining the 2002 version of Standard 1.02, with its language permitting adherence to the law in
the event of a conflict with ethical principles, was important to psychologists working in national
security, and that he opposed any revision to the Standard for so many years out of a desire to
protect these psychologists.
X.
APA’S SHIFT IN COURSE DURING THE TRANSITION BETWEEN
ADMINISTRATIONS
As the Bush Administration drew to a close and President Barack Obama entered the
White House, APA effectively switched course and greatly reduced its efforts to defend the
PENS report and otherwise preserve the role of psychologists in facilitating interrogations. On
January 22, 2009, Obama issued an executive order prohibiting the use of all abusive
interrogation techniques.2198
APA quickly issued a press statement “applaud[ing]” the executive
order and emphasizing that its members had passed a resolution in 2008 that prohibited
psychologists from working in settings where people are held in violation of international
law.2199
Internally, the Ethics Office and Ethics Committee began implementing the changes that
members had demanded for years but that staff had, until that point, so strongly resisted. As
2196 Approved Minutes of the Council (Feb. 19-21, 2010).
2197 APA_0085132.
2198 Executive order 13491 - Ensuing lawful Interrogations, available at
2199 APA Applauds New Executive orders Signaling a Fundamental Change in the Rights and Treatment
461
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
stated above, 2009 saw a shift in how APA treated the calls to amend Standards 1.02 and 1.03 of
the Ethics Code, and began to issue statements indicating that it would finally address the
criticisms related to those standards, which had been raised by members for several years but
never fully addressed. On June 18, the Ethics Committee made a statement clarifying that, under
the 2002 Ethics Code, there is no defense to torture that the Ethics Committee would accept in
the adjudication of any complaints, and that “[t]orture in any form, at any time, in any place, and
for any reason, is unethical for psychologists and wholly inconsistent with membership in the
American Psychological Association.”2200 Likely finding a less resistant attitude in the Ethics
Office, and an unlikely ally in Bray, Council was finally able to pass a motion directing that the
Ethics Committee propose language to amend Standard 1.02. The amendments became effective
on June 1, 2010.
In 2011, the Ethics Committee also began taking steps regarding the broken promise to
provide a casebook of illustrative examples of the ethical dilemmas faced by psychologists in
national security settings, a project that had originally been billed as a follow-up to the report
produced by the PENS Task Force six years earlier. Although the PENS Task Force produced
its report in July 2005, it was not until December 2007 that the Ethics Committee sent out a call
for vignettes, with the claim that the Committee had “deemed it advisable to wait until Council
completed its multiyear process of developing and refining policies related to the role of
psychologists in national security-related activities before issuing its responses.”2201
In June
2011, following the passage of the 2008 petition resolution and the 2010 revision of Standards
1.02 and 1.03, the Committee announced that it “believed it was in a position to move forward
and complete its work on the document,” and therefore sought comments and feedback on the
thirty page compilation of twenty-five vignettes received several years earlier during the
previous administration.2202
However, so as not to attract attention to the issues, Behnke told
executive staff that he would “post this text quietly, very quietly on the Ethics webpage.”2203
On July 31, 2013, the Council of Representatives adopted a comprehensive policy titled
“Policy Related to Psychologists’ Work in National Security Settings and Reaffirmation of the
APA Position Against Torture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment,” which reconciled prior resolutions related to detainees and the work of
psychologists in national security settings.2204
At the same time that it adopted the reconciliation
policy, Council also voted to rescind the report of the PENS Task Force and the resolutions
2200 APA Ethics Committee Statement - No Defense to Torture under the APA Ethics Code (June 2009),
2201 Comments and Feedback Requested on the Responses of the APA Ethics Committee to Questions,
Comments, and vignettes regarding APA Policy on the Role of Psychologists in National Security -
comments.pdf.
2202 Id.
2203 APA_0079688.
2204 Policy Relating to Psychologists’ work in National Security settings and Reaffirmation of the APA
position against Torture and other Cruel, Inhuman, or regarding Treatment or Punishment, available at
462
INDEPENDENT REVIEW REPORT TO APA
POST-PENS PERIOD
adopted in 2007 and 2008.2205 In the following months, APA wrote letters to officials in the
Obama Administration and members of Congress to inform them of APA’s new unified policy.
Nevertheless, the PENS Report itself remains integrated into DoD Medical Command official
policy regarding the involvement of psychologists in interrogations.
In sum, when the Obama Administration’s clear rejection of the interrogation program
run by the CIA and DoD during the Bush Administration signaled to APA that it would no
longer be politically expedient to defend the PENS report and other policies supporting the use
of psychologists in national security investigations, it appears that APA responded to the
changed climate and reduced its defense of the policies it had earlier fought so hard to defend.
2205 Report of the APA Presidential task Force on Psychological Ethics and National Security (July 5,
2005), available at http://www.apa.org/news/press/releases/2005/07/pens.aspx (noting vote to rescind
PENS); Policy Relating to Psychologists’ work in National Security settings and Reaffirmation of the
APA position against Torture and other Cruel, Inhuman, or regarding Treatment or Punishment,
available at http://www.apa.org/about/policy/national-security.aspx (2013 policy statement); Draft
Minutes of the Council (July 31 & Aug. 2, 2013), available at
http://www.apa.org/about/governance/council/13aug-ethics-minutes.pdf (vote to rescind PENS).
463
ETHICS ADJUDICATIONS
INDEPENDENT REVIEW REPORT TO APA
ETHICS ADJUDICATIONS
APA’S HANDLING OF DISCIPLINARY CASES AGAINST NATIONAL SECURITY
PSYCHOLOGISTS
I.
ETHICS ADJUDICATIONS
A.
Adjudications Program Overview
1.
Ethics Office and the Ethics Committee
The Ethics Office and Ethics Committee work together to adjudicate complaints of
unethical conduct against APA members. The Ethics Office currently consists of seven staff
members including: the Director (Stephen Behnke), the Deputy Director of Ethics and Director
of Adjudications (Lindsay Childress-Beatty), three investigators, and two staff members who
provide administrative support.2206
In addition, the former Ethics Office Director, Stanley Jones,
is employed as a full-time consultant. There are ten members on the Ethics Committee, who
each serve three year terms.2207 A Chair and Vice-Chair are elected each year to serve on the
Ethics Committee and Behnke is the staff liaison to the committee. In accordance with APA
bylaws, the Ethics Committee issues annual reports documenting the number and types of ethical
complaints received each year, as well as any significant actions undertaken by the committee
during that year.
Since 2000, the number of ethics complaints investigated by the Ethics Committee each
year has declined drastically, from an average of 50 cases per year from 1995 - 2000 to two
cases per year in the past two years.2208 The reduction in the number of ethics complaints
reviewed by the Ethics Committee is a result of the deliberate post-2000 shift in the Ethics Office
away from the adjudication of ethics complaints and towards the education of psychologists.
In the 1990s, the Ethics Office faced criticism for being too harsh and prosecutorial in its
approach to adjudicating ethics complaints. Ethics Office investigator Patricia Dixon told Sidley
that APA members had complained that the Ethics Office was “too aggressive” and she recalled
meetings in which people voiced “very strong opinions about the [adjudications] process as
being too punitive.”2209
Similarly, Childress-Beatty told Sidley that the Ethics Office had been
criticized for being “too harsh” and for “going after people” in the past.2210
2206 Behnke interview (May 21, 2015).
2207 Members of the Ethics Committee are elected by the same process as members of other APA
committees. APA members are nominated to the Committee by the membership, and a list of prospective
members is created by the Committee and sent to the Board of Directors (“Board”) for approval. The list
is submitted to the Council of Representatives (“Council”), which then elects a public member to join the
Committee after he or she has been nominated by the Committee and approved by the Board.
2208 HC00023285.
2209 Dixon interview (May 12, 2015).
2210 Childress-Beatty interview (May 13, 2015).
464
INDEPENDENT REVIEW REPORT TO APA
ETHICS ADJUDICATIONS
In response to these criticisms, the Board decided that the Ethics Office should focus on
education instead of adjudications. The Board made several key decisions to effect this change.
First, the Board hired Behnke as Director of the Ethics Office in 2000. Behnke recalled that
when he was hired, APA members were concerned about the Ethics Code being used “as a
weapon” against them.2211 Behnke told Sidley that when he was hired, the Board had made the
decision to transition to a “kinder, gentler” adjudications process that was “clearly not going to
have a prosecutorial mindset.”2212 Thus, Behnke made education and consultation the primary
focus of the Ethics Office; adjudication was relegated to a “tertiary focus.”2213
Second, the Board considered several ways to reform the adjudication program and
sought guidance from the Ethics Committee. During the June 2000 Board meeting, the Board re-
evaluated the ethics adjudication program and identified five potential reforms: (1) elimination of
adjudication of any ethics cases; (2) elimination of all complaint-based cases; (3) restriction of
complaint-based cases to those that involved behavior that was likely to lead to expulsion and/or
for which there was no adequate alternative forum; (4) allow respondents in ethics cases to
resign provided that APA members and inquiring members of the public were notified that the
individual “resigned while under the scrutiny of the Ethics Committee”; and (5) implement
automatic loss of membership for members who were subject to show cause procedures.2214 The
Ethics Committee presented its recommendations at the February 2001 Council meeting and
recommended against eliminating complainant-based cases. Instead, the Ethics Committee
recommended that for complainant cases, behavior that was unlikely to lead to expulsion should
not be adjudicated, and that “expellable behavior” should be defined as “behavior likely to cause
substantial harm to persons or groups with whom psychologists work or to the profession.”2215
The Board discussed the potential reforms2216 and approved changes to the Ethics
Committee’s Rules and Procedures to: (1) allow respondents to resign under ethics investigation;
and (2) institute automatic expulsion for members in show cause matters unless the respondent
requested a review of the matter by the Ethics Committee.2217 These changes meant that APA
members could resign while an ethics investigation was pending, which would end the
investigation, and that members against whom a licensing board had acted could be
automatically expelled.
Under the direction of Behnke, the Ethics Office pursued fewer cases, and consistent with
the recommendation of the Ethics Committee, generally did not adjudicate show cause or sua
2211 Behnke interview (May 21, 2015).
2212 Id.
2213 Id.
2214 HC00023286.
2215 HC00023317; Approved Minutes of the Council (Feb. 23-25, 2001) (“Council discussed the report of
the Ethics Committee regarding adjudication process reforms.”)
2216 The Board discussed these changes in executive sessions during its August 2001 and December 2001
meetings. Council was informed of the Board’s decision at the February 2002 Council meeting.
Approved Minutes of the Board (Aug. 25, 2001 & Dec. 7, 2001) (on file with Sidley).
2217 HC00023310 at 1.
465
INDEPENDENT REVIEW REPORT TO APA
ETHICS ADJUDICATIONS
sponte cases that involved behavior that was not expellable. Thus, the number of matters
adjudicated declined and the Ethics Office focused on providing education and consultation to
psychologists instead. Behnke relied on the staff investigators and Jones to handle adjudication
matters that the Office decided to pursue. By 2007, Behnke had become so busy with
conducting trainings and doing ethics consultations that he realized that someone was needed to
focus on adjudications in the Ethics Office.2218 He asked Childress-Beatty, who was then in the
Office of General Counsel, to lead the adjudications program. Childress-Beatty joined the Ethics
Office in June 2007. Childress-Beatty told Sidley that there was a sense that Behnke was
“stretched too thin” and that “investigators were just doing whatever they wanted” before she
moved to the Ethics Office.2219
All of the ethics complaints against psychologists involved in interrogations were
received and considered by the Ethics Office in this context of the shifting focus towards
education and away from adjudication.
B.
Type of Matters Adjudicated
The Ethics Committee’s Rules, which went into effect on October 1, 2001, govern the
current adjudications process. Under the Rules, the Ethics Committee can adjudicate three types
of matters: (1) show cause proceedings (under Part IV of the Rules); (2) sua sponte matters
(under Part V of the Rules); and (3) complainant matters (under Part V of the Rules).2220
1.
Show cause matters
The Ethics Office may open a show cause matter after: (1) another body (i.e., criminal
court, licensing board, or state psychological association) has taken “specified serious adverse
action against a member”;2221 (2) after a member has voluntarily surrendered a license or
certificate of registration because of pending allegations; or (3) after a state or local board or
similar entity has taken specified adverse action against a member and then stayed or postponed
that action.2222
When the Ethics Committee reviews these cases it can: (1) remand the matter;2223
(2) dismiss the matter;2224 (3) recommend reprimand or censure;2225 or (4) recommend
2218 Behnke interview (May 21, 2015).
2219 Childress-Beatty interview (May 13, 2015).
2220 APA Ethics Committee Rules and Procedures, Rules, Parts IV-V, available at
http://www.apa.org/ethics/code/committee.aspx#PII3 [hereinafter “Rules”].
2221 Rules, Overview Parts III-V, Show Cause Proceedings.
2222 Rules, Part IV, Subsection 1.2.
2223 Rules, Part IV, Subsection 6.1.
2224 Rules, Part IV, Subsection 6.2.
2225 Rules, Part IV, Subsection 6.3.
466
INDEPENDENT REVIEW REPORT TO APA
ETHICS ADJUDICATIONS
expulsion.2226
The Ethics Office’s practice is not to open a show cause matter unless the conduct
involves expellable behavior.2227
2.
Sua sponte matters
The Ethics Office may proceed on its own initiative, via a sua sponte matter, when a
member appears to have violated the Ethics Code. Sua sponte matters are initiated by the Ethics
Office without any external prompts. Childress-Beatty told Sidley that the Ethics Office does
not actively monitor the media to identify potential ethical violations, but APA’s media office
may become aware of relevant articles through its RSS feed and send those articles to the Ethics
Office.2228
The Ethics Office could also become aware of potential matters for investigation via
an APA listserv that focuses on psychologists in the media.2229
Pursuing a sua sponte matter is entirely within the discretion of the Ethics Office and the
Ethics Committee. The Chair, Vice Chair, and Director “may decide not to open a sua sponte or
show cause case when a state or local board or similar entity has taken disciplinary action against
an Association member” if (1) the action is either not final or the member has not completed all
directives or other requirements; and (2) the behavior at issue is not likely to result in
expulsion.2230
The Ethics Office’s practice is not to open a sua sponte matter unless the conduct
involves expellable behavior, although the rules do not prevent opening a sua sponte matter for
behavior that is not expellable.2231
3.
Complainant matters
a)
Filing a complaint
A complainant matter is initiated when an individual (the complainant) files a complaint
against an APA member (the respondent).
The process for filing a complaint changed in 2012. Prior to 2012, a written allegation of
unethical conduct submitted to the Ethics Office was treated as an initial inquiry.2232
In response
to an initial inquiry, the Ethics Office would confirm whether the respondent was an APA
member.2233 If the respondent was an APA member, the Ethics Office sent an official complaint
form to the complainant to fill out and return. The complaint was not considered complete until
the complaint form was returned to the Ethics Office.2234 If a complaint form was not returned
2226 Rules, Part IV, Subsection 6.4.
2227 Childress-Beatty interview (Jan. 16, 2015).
2228 Childress-Beatty interview (Feb. 2, 2015).
2229 Id.
2230 Rules, Part II, Subsection 5.6.2.
2231 Childress-Beatty interview (Jan. 16, 2015).
2232 Childress-Beatty interview (Feb. 2, 2015).
2233 Rules, Part II, Subsection 5.1; Childress-Beatty interview (Feb, 2, 2015).
2234 Rules, Part V, Subsection 3.4; Childress-Beatty interview (Feb. 2, 2015).
467
INDEPENDENT REVIEW REPORT TO APA
ETHICS ADJUDICATIONS
within six months, the matter was closed. Nothing in the Rules provided for closing a matter
after six months; instead, this was part of the longstanding “general practice” of the Ethics
Office. Childress-Beatty told Sidley that the six-months time limit was used to keep files
organized in the Ethics Office internal tracking system, and that it was without any practical
significance because if the complainant submitted a completed complaint form anytime after the
six-months period had elapsed, the Ethics Office would open up a new matter.2235
Now, a complainant no longer has to ask the Ethics Office for a complaint form. Under
the current process, which has been in effect since 2012, a complainant can access the complaint
form on APA’s website. To file a complaint, the complainant must submit the completed form,
along with supporting documentation, to the Ethics Office under Part V, Subsection 3 or the
Rules. Pursuant to the Rules, the Director “review[s] each complaint to determine if
jurisdictional criteria are met and if it can be determined whether cause for action exists.” The
Ethics Office investigators act as the Director’s “designees” in this process.2236
Thus, after the
Ethics Office receives a completed complaint form (now and prior to 2012), the complaint is
assigned to one of the investigators in the Ethics Office. The investigator, acting as the
Director’s designee, conducts an initial evaluation of the complaint.
b)
Preliminary Evaluation
Part V, Section 5 of the Rules governs the evaluation of complaints. The investigator
initially evaluates a complaint to determine if the jurisdictional criteria are met and if it can be
determined whether cause for action exists.2237 To determine whether the Ethics Committee has
jurisdiction over a complaint, the investigator considers whether the respondent is an APA
member, whether the complaint form was correctly completed, and whether the time limits for
filing (in Part II, Subsection 5.3) have been met.
If the jurisdictional criteria are met, the Chair of the Ethics Committee and the
investigator then determine whether there are grounds for action to be taken by the
Committee.2238 If the Chair and investigator find that they lack sufficient information to make
such a determination they may: (1) close the matter, (2) request that the complainant supplement
the complaint (pursuant to Part V, Subsection 5.2.1), or (3) initiate a preliminary investigation
(pursuant to Part V, Subsection 5.3).2239 Even though the Rules do not explicitly permit this,
Childress-Beatty told Sidley that the permissive “may” in Subsection 5.2.1 implies that the
Ethics Office does not have to request additional information to determine if jurisdiction exists,
2235 Childress-Beatty interview (June 2, 2015).
2236 Rules, Part V, Subsection 4 and Parts III - V overview section (“Complaints are evaluated initially by
the Ethics Office Director, or Investigators acting as the Director's designees, regarding jurisdictional
issues such as whether the subject of the complaint, the respondent, is a member, whether the complaint
form is correctly completed, and whether the time limits for filing have been met. Then the Chair of the
Ethics Committee and Director of the Ethics Office or their designees determine whether there are
grounds for action to be taken by the Committee (defined in Part V, Subsection 5.1).”).
2237 Rules, Part V, Subsection 4.
2238 Rules, Part V, Subsection 5.
2239 Rules, Part V, Subsection 5.3.
468
INDEPENDENT REVIEW REPORT TO APA
ETHICS ADJUDICATIONS
and that the complaint could be closed without any further actions after it has been received.2240
If the Chair and investigator request that the complainant supplement the complaint and the
complainant fails to do so within 30 days, the matter may be closed (pursuant to Part V,
Subsection 5.2.2). As a practical matter, before deciding whether to initiate a preliminary
investigation, the investigator drafts a decision memo with a recommendation on whether to
initiate a preliminary investigation under Part V, Subsection 5.3 of the Rules. The decision
memo is not explicitly required by the Rules, but it is the general practice used by the Ethics
Office to communicate with the Ethics Committee Chairs and Vice Chairs. If the Chair
disagrees with the investigator’s recommendation, the Vice Chair casts the deciding vote as to
whether or not to initiate a preliminary investigation.2241
c)
Preliminary Investigation
Under the Rules, a preliminary investigation is not mandatory, but may be opened if the
Chair and Director (or his designee) agree that they lack sufficient information to determine
whether a full case should be opened. If a preliminary investigation is initiated, the respondent is
notified that a preliminary investigation has been opened.2242 The respondent then has 30 days to
send an initial response to the Ethics Office.2243
During the preliminary investigation, the
investigator may request additional information from “the complainant, respondent, or any other
appropriate source” as permitted by the Rules.2244 Despite this allowance, with the exception of
state licensing boards, investigators do not contact third parties to request additional information.
Nor do investigators conduct interviews with complainants, respondents, or third parties, even
though the Rules allow such actions (“[a]dditional information may be requested from the
complainant, respondent, or any other appropriate source.”).2245 It is the general practice of the
Ethics Office not to take such affirmative investigative steps. The preliminary investigation
process, therefore, is a “paper-only” review, meaning that the Ethics Office investigators
typically only review documents submitted by either the complainant or the respondent.
According to Childress-Beatty, back in the 1990s, the Ethics Office initiated fewer
preliminary investigations; instead, it opened more formal cases and conducted its information
gathering activities as part of the full case investigation under Part V, Subsection 6 of the Rules.
Back then, the full case investigation consisted of reading the complaint, writing a letter to the
respondent to get his or her response, and reviewing the response. Childress-Beatty noted that
the adjudications process has always been a paper-only review, and that in the early 2000s, the
back-and-forth correspondence with the respondent was moved to the preliminary investigation
phase.2246
2240 Childress-Beatty interview (June 2, 2015).
2241 Rules, Part V, Subsection 5.4.
2242 Rules, Part V, Subsection 5.3.1.
2243 Rules, Part V, Subsection 5.3.2.
2244 Rules, Part V, Section 5.3.3.
2245 Id.
2246 Childress-Beatty interview (June 2, 2015).
469
INDEPENDENT REVIEW REPORT TO APA
ETHICS ADJUDICATIONS
At the conclusion of a preliminary investigation, the investigator drafts a decision memo
to the Chair with a recommendation as to whether a formal case should be opened under Part V,
Subsection 5.5. If, at the conclusion of the preliminary investigation, the Chair and the
investigator lack sufficient information to determine whether there are grounds for action to be
taken by the Ethics Committee, the complaint is closed.2247 The determination of whether a
formal case should be opened is a two-step process under the Rules. First, the investigator and
Chair must determine that a cause for action exists under Part V, Subsection 5.1. Under this
Rule, cause for action exists “when the respondent’s alleged actions and/or omissions, if proved,
would in the judgment of the decision maker constitute a breach of ethics.”2248 Second, if the
Chair and the investigator determine that cause for action exists, they consider whether, under
Part V, Subsection 5.5:
(a) there is a reasonable basis to believe the alleged violation cannot be proved by
a preponderance of the evidence and (b) the allegations would constitute only
minor or technical violations that would not warrant further action, have already
been adequately addressed in another forum, or are likely to be corrected. If they
agree that one or more of these conditions are met, the matter shall be closed.
Otherwise, the matter shall be opened as a case.2249
Dixon told Sidley that, as a practical matter, she treated this as a “threshold question,”
and approached it by examining the evidence in the file to determine whether she believed there
was a violation of the Ethics Code. Dixon said that a case in which she thought there was “no
way [the Ethics Office] was going to get the evidence to support” the allegations would not pass
this threshold determination.2250
Even though the Rules specifically identify the investigator and
the Ethics Committee Chair as the two individuals who work together during this process, Dixon
said that if a complaint was “complex,” then she would typically involve Childress-Beatty in the
decision-making process as well.2251
The Rules are silent as to what constitutes a “reasonable basis.” Childress-Beatty
explained that what was a “reasonable basis” to believe that an alleged violation could be proved
by a preponderance of the evidence was up to the discretion of the investigator and the Chair.
When asked how this standard played out in practice, Childress-Beatty said that “the reality is,
[the Ethics Office does] not usually have discussions that are that technical,” and that they do not
really “parse it out.”2252
Instead, they generally ask “is this something we should charge or
not?”2253
Childress-Beatty further explained that the Ethics Office is staffed with people who
2247 Rules, Part V, Subsection 5.3.4.
2248 Rules, Part V, Subsection 5.1.
2249 Rules, Part V, Subsection 5.5.
2250 Dixon interview (May 12, 2015).
2251 Id.
2252 Childress-Beatty interview (June 2, 2015).
2253 Id.
470
INDEPENDENT REVIEW REPORT TO APA
ETHICS ADJUDICATIONS
have been there for a long time, and who “know how the Ethics Committee reacts to things.”2254
Childress-Beatty told Sidley that the process for making the reasonableness determination
ensures that only cases that are more likely than not to result in finding an ethical violation
proceed to the full Committee. Instead of going through the standards in the Code one-by-one to
see if there has been a potential violation, the Ethics Office staff first determine whether there
should be a violation, and then look to the Code to find standards to support a charge. The result
is a backwards-process wherein the preliminary determination of an ethical violation is made
before any specific ethical standards are even considered.
d)
Case Investigation
Section 6 of Part V of the Rules governs the case investigation. If a case is opened, the
Ethics Office issues a charge letter to the respondent pursuant to Part V, Subsection 6.1. The
charge letter contains a description of the alleged behaviors at issue and the specific standards of
the Ethics Code the respondent is alleged to have violated.2255 A copy of the completed
complaint form and any materials submitted by the complainant, or on the complainant’s behalf,
are included with the charge letter.
Although Part V, Section 6, is titled “Case Investigation,” none of the rules in Section 6
provide any guidance as to the specific investigative steps that should, or could, be taken during
the case investigation. Subsection 6.2 comes closest and states that “[a]dditional information
may be requested from the complainant, respondent, or any other appropriate source.” Yet, as
noted earlier, the investigator generally does not proactively request information from sources
other than the complainant or respondent. Childress-Beatty said that Subsection 6.2 had more
relevance in the 1990s when the general practice of the Ethics office was to proceed with
opening formal cases—to gather information after a formal case had been opened—instead of
utilizing the preliminary investigation process.2256
The case investigation is, and always has
been, a paper-only review process. As a practical matter, there is very little investigation done
during the case investigation phase and the document gathering process now occurs during the
preliminary investigation phase. At the conclusion of the case investigation, the case is referred
to the Ethics Committee for review and resolution.2257
e)
Review and Resolution by the Committee
Part V, Section 7 of the Rules addresses review and resolution of a case by the Ethics
Committee. The Ethics Committee typically meets two to three times per year to address
adjudications, as well as any other ongoing educational activities and special projects. Once a
matter proceeds to the full Committee, the Committee considers the full record and may: (1)
remand the case to the Director for continued investigation (Subsection 7.1); (2) dismiss the
charges because the respondent has not violated an ethical standard (Subsection 7.2.1); (3)
dismiss the charges and conclude that the violation does not warrant further action (Subsection
2254 Id.
2255 Rules, Part V, Subsection 6.1.1.
2256 Childress-Beatty interview (June 2, 2015).
2257 Rules, Part V, Subsection 6.3.
471
INDEPENDENT REVIEW REPORT TO APA
ETHICS ADJUDICATIONS
7.2.2); (4) dismiss the charges on the basis of insufficient evidence to support a finding of an
ethics violation (Subsection 7.2.3); (5) issue an educative letter (Subsection 7.3); (6) recommend
reprimand or censure (Subsection 7.4); (7) recommend expulsion (Subsection 7.5); or (8)
recommend stipulated resignation (Subsection 7.6). The Board then approves or rejects any
disciplinary actions recommended by the Ethics Committee under Subsection 10.3.5.2258
C.
Limitations of the Adjudication Process
1.
Paper Only Review
The investigations conducted during the adjudications process consist of paper-only
reviews of documents provided to the Ethics Office by the complainant and/or the respondent.
The investigators do not proactively seek information from third-parties or any source other than
the complainant or respondent, nor do they conduct interviews. None of the investigators could
recall any instance in which they conducted an interview as part of an investigation. Although
nothing in the Rules prevents investigators from interviewing potential witnesses or seeking
information from third-parties, and Subsection 5.3.3 of Part V expressly permits obtaining
information from “any other appropriate source,” current and former investigators (Patricia
Dixon, Stephanie Brasfield, Martha Mihaly, Deborah Carliner) and Childress-Beatty said that the
general practice within the Ethics Office is to do neither. In support of this practice, Childress-
Beatty cited to a March 5, 2001 Ethics Committee policy document that states:
The Committee adopted a policy that ordinarily, it will not contact potential
witnesses for either the complainant or the respondent, but that the decision will
be made on a case-by-case basis, based upon a showing by the complainant or
respondent of good cause for the Committee to solicit the information.2259
This policy, adopted in July 1994, modified Part II, Subsection 3.5 of the Rules which
addresses communication for investigations or other functions.2260 While the policy suggests
that the Ethics Committee will not contact potential witnesses, it does not, on its face, restrict the
ability of an investigator to contact witnesses. In contrast to the policy, Subsection 3.5 clearly
permits an investigator to communicate with a witness to facilitate the performance of any
functions set forth in the Rules and Procedures. Subsection 3.5 states:
Nothing in this section shall prevent the Director from communicating any
information (including information from the respondent, complainant, or a
witness) to the respondent, complainant, witnesses, or other sources of
2258 If the respondent requests an independent adjudication panel under Subsection 9 or a formal hearing
under Subsection 10, Board approval of any disciplinary action occurs at the conclusion of those
processes.
2259 HC00022807.
2260 This policy was adopted in 1994 and modified Part II, Subsection 3.5 of the 1992 Rules and
Procedures. This particular subsection of the Rules remained unchanged in later versions of the Rules,
including the 2001 Rules, which were in effect during the years the Ethics Office received complaints
against psychologists involved in interrogations.
472
INDEPENDENT REVIEW REPORT TO APA
ETHICS ADJUDICATIONS
information to the extent necessary to facilitate the performance of any functions
set forth in these Rules and Procedures.2261
Clearly a preliminary investigation falls within the performance of a function set forth in
the Rules and Procedures.
Both Behnke and Childress-Beatty acknowledged that there was no Rule against
contacting third parties or conducting interviews, and emphasized that the “paper-only review”
was simply the “long-standing practice” of the Ethics Office. Behnke told Sidley that when he
joined the Ethics Office, the adjudications process was a paper-based review, and that reaching
out to potential witnesses or third parties was “just not [their] practice” and “not the culture of
[the Ethics Office].”2262
Behnke referred to the process as “byzantine” and said that it could not
accurately be called an “investigation,” but thought that the process was “quite consistent” with
the adjudications process in other membership organizations.2263 Similarly, Childress-Beatty
stated that the Rules “might allow [the Ethics Office] to contact witnesses, but that it was just not
the way the system has ever worked.” This was consistent with Childress-Beatty’s view that the
Ethics Office is “not supposed to act as a prosecutor” because APA is, after all, a membership
organization.2264
An additional justification, provided by both Behnke and Childress-Beatty, for not
contacting potential witnesses during investigations was that the Ethics Office had limited
resources with a small and busy staff. Childress-Beatty told Sidley that the Ethics Office had
neither the staff nor the time to engage in any kind of investigation beyond the documents that
people would provide to the Ethics Office.2265 Yet a former Ethics Office investigator, Deborah
Carliner, who worked in the Ethics Office from 1997-2004, prior to Childress-Beatty’s tenure,
stated that she rarely had any work to do in the office. In fact, even though Carliner started as a
full-time employee, she decided to cut her schedule to only three days a week, and eventually
resigned because there was “nothing to do.”2266
2.
Confusion Regarding Scope
The limited scope of the investigations conducted during the adjudications process was
known to some, but not all, members of the Ethics Committee and APA staff. Some Ethics
Committee members clearly appreciated the limited nature of the investigations. Former Ethics
Committee member, Elizabeth Swenson, told Sidley that the investigative process was limited to
a “paper-only” review and that she did not recall any instances in which the investigators
conducted interviews.2267 Former Ethics Committee Chair, Nadya Fouad, recalled that the
2261 Rules, Part II, Subsection 3.5.
2262 Behnke interview (May 21, 2015).
2263
Id.
2264 Childress-Beatty interview (May 13, 2015).
2265 Id.
2266 Carliner interview (May 29, 2015).
2267 Swenson interview (May 4, 2015).
473
INDEPENDENT REVIEW REPORT TO APA
ETHICS ADJUDICATIONS
investigators were never asked to conduct any interviews and that no one ever suggested
otherwise.2268
Former Ethics Committee Chair, Robin Deutsch, explained that while the
investigative process was “more than nothing,” it was “far less than following every lead.”2269
Consistent with the evidence that we found, Deutsch recalled that the Ethics Office “did not
investigate a third-party complaint like those filed against psychologists involved in
interrogations.”2270
According to Deutsch, instead of investigating third party complaints, the
Ethics Office would write to the complainant to ask that the person directly involved file a
complaint. Deutsch said that the Ethics Office had an “informal policy” of not seeking
information other than statements from the complainant or respondent.2271
While some clearly appreciated what steps the Ethics Office took or did not take when
investigating complaints, others thought the investigations were more robust and involved some
affirmative investigative steps. Former Ethics Committee Chair, Olivia Moorehead-Slaughter,
told Sidley that the Ethics Office reviewed everything “from the mega-details to the minutia,”
and that they “left no stone unturned.”2272 Moorehead-Slaughter believed that the investigators
were free to, and did in fact, request any evidence they wanted.2273 Former Board member, Jean
Carter, believed the investigations were “really deep explorations.”2274 Similarly, Armand
Cerbone, a former Ethics Committee Chair, told Sidley that if there was any “hard evidence,” he
would have expected it to be brought before the Ethics Committee.2275 Even APA’s Executive
Director for Public and Member Communications, Rhea Farberman, expected the Ethics Office
to take some affirmative investigative steps. Her understanding was that the Ethics Office
“[stood] ready to investigate any complaints” related to psychologist participation in
interrogations.
APA’s public statements and Behnke’s statements regarding the adjudications process
did nothing to clarify the confusion regarding the scope of ethics investigations. Instead, these
statements suggested that the Ethics Office would investigate ethics complaints, and that it would
do so by taking some affirmative investigative steps. Behnke’s statements that “[the Ethics
Office] thoroughly investigate[s] the complaint” and that “if individuals who are members or our
association have acted inappropriately, the APA will address those very directly and very
clearly”2276 were, at best, disingenuous given that the investigations were only paper reviews.
2268 Fouad interview (Apr. 28, 2015).
2269 Id.
2270 Deutsch interview (May 11, 2015).
2271 Id.
2272 Moorehead-Slaughter interview (Apr. 20, 2015).
2273 Id.
2274 Carter interview (Apr. 21, 2015).
2275 Cerbone interview (Apr. 30, 2015).
2276 Psychological Warfare? A Debate on the Role of Mental Health Professionals in Military
Interrogations at Guantanamo, Abu Ghraib and Beyond, Democracy Now! (Aug. 11, 2005), available at
474
INDEPENDENT REVIEW REPORT TO APA
ETHICS ADJUDICATIONS
The limited nature of the adjudications process and the unwillingness of the Ethics Office
to take any affirmative investigative steps resulted in a system that seemed to prioritize the
protection of member psychologists over the protection of the public. Two former public
members of the Ethics Committee recognized this. Former public member, Steven Smith,
described the adjudications process as “extraordinarily conservative” and limited in scope.2277
He found it problematic that the investigative process was merely “fact gathering” from the
complainant and the respondent, with “more sympathies” for the individual APA-member
psychologists.2278
Former public member, Evelyne Shuster, told Sidley that the Ethics
Committee was quite lenient towards charged psychologists and often justified taking minimal or
no disciplinary action by engaging in a risk versus benefits analysis.2279 Shuster believed that the
Ethics Committee was ultimately more concerned about preserving psychologists’ reputations
and the image of psychology than making disciplinary determinations based strictly on ethical
considerations.2280
Even former APA President, Gerald Koocher, stated during his interview that
APA would not proceed on a complaint without obtaining evidence because they were
“concerned with protecting the due process rights of accused psychologists,”2281 but that APA
could not obtain evidence because it did not have any subpoena power—making claims that
APA stood ready and willing to adjudicate complaints against psychologists involved in abusive
interrogations a hollow promise.
Nevertheless, there are some who believe that the Ethics Office does play a role in
protecting the public by taking disciplinary action against psychologists who engage in unethical
behavior. Former Board member Carter told Sidley that her understanding was that the Ethics
Office was very much involved in “protecting the public.”2282 Behnke did not share this view.
During his interview, he told Sidley that the role of the Ethics Office is not protection of the
public and that protection of the public is a function for state licensing boards.
D.
Complaints Regarding Psychologists Involved in Interrogations
1.
Michael Gelles
On April 5, 2001, the Ethics Office received a letter from Professor Jonathan Turley on
behalf of Petty Officer Daniel King, stating that he wanted to file a complaint with APA against
interview with Stephen Behnke, Michael Wilks and Robert Jay Lifton).
2277 Smith interview (Apr. 30, 2015).
2278 Id.
2279 Shuster interview (Feb. 30, 2015).
2280 Id.
2281 Koocher interview (Mar. 20, 2015).
2282 Carter interview (Apr. 21, 2015).
475
INDEPENDENT REVIEW REPORT TO APA
ETHICS ADJUDICATIONS
NCIS psychologist Michael Gelles.2283 On April 24, 2001, the Ethics Office received Turley’s
completed complaint form, as well as a summary of allegations against Gelles. The summary of
allegations provided the following background information on the case:
x
King took a routine polygraph on September 29, 1999 and the polygrapher
recorded a “no opinion” result;
x
The NCIS told King he had failed the espionage questions on the polygraph exam
and that he was suspected of being a spy;
x
NCIS agents interrogated King as a suspected spy for 29 days and the
interrogations lasted “15 hours to 20 hours at a stretch”;
x
King signed a statement at 3:30 a.m. on October 6, 1999 after he had been
interrogated for 30 out of the prior 39 hours. The government used this statement
as the basis for the espionage case;
x
The espionage case was charged as a death penalty prosecution;
x
After signing his statement, the interrogation sessions continued and King asked
to speak to a psychiatrist. In response to that request, Gelles met with King on
October 19, 1999. The session was taped, King was not informed of the taping,
and did not give his consent to being taped;
x
During the session, Gelles repeatedly referred to himself as “the doctor” or “the
doc” and said that the was there to “help” King;
x
Gelles discussed a variety of issues with King including: King’s suicidal
tendencies, his depression, the facts of his case, his desire for hypnosis, and his
relationship with his interrogators. Gelles produced an evaluation of King’s
psychological status after this session.2284
Turley alleged that Gelles’s conduct was unethical because, among other things, Gelles:
(1) failed to inform King of his role as an NCIS employee by stating that he was a doctor, and
not an NCIS agent; (2) failed to reveal his conflict of interest and inform King that he had an
investigative function; (3) failed to address King’s mental health issues when he learned that
King had been depressed and had suicidal thoughts; (4) offered false or misleading information
to King in order to achieve non-treatment objectives; (5) failed to act in King’s best interests; (6)
misused his influence over King to induce information from him; and (7) violated King’s
confidentiality and privacy rights by taping the session without King’s knowledge and not
2283 Consistent with the Ethics Office’s standard practice, this letter was treated as an initial inquiry and a
complaint form was sent to Turley in response.
2284 HC00011737.
476
INDEPENDENT REVIEW REPORT TO APA
ETHICS ADJUDICATIONS
explicitly stating that the session was not confidential.2285
Turley claimed that the following
standards from the 1992 Ethics Code (in effect in 1999) were relevant to the complaint:
x Standard 1.07 (describing the nature and results of psychological services)
x Standard 1.14 (avoiding harm)
x Standard 1.15 (misuse of psychologists’ influence)
x Standard 1.16 (misuse of psychologists’ work)
x Standard 1.19 (exploitative relationships)
x Standard 1.20 (consultations and referrals)
x Standard 1.21 (third party requests for services)
x Standard 2.01 (evaluation, diagnosis, and interventions in professional context)
x Standard 5.01 (discussing the limits of confidentiality)
x Standard 5.02 (maintaining confidentiality)
x Standard 7.01 (professionalism)
x Standard 7.03 (clarification of role)
x Standard 8.03 (conflicts between ethics and organizational demands)
In support of the completed complaint form, Turley also submitted the videotape of the
session between Gelles and King, along with a transcript of the videotape, transcribed by his
secretary.
On May 8, 2001, the Ethics Office wrote to Gelles to inform him of the complaint and the
fact that a preliminary investigation had been opened against him pursuant to Part V, Subsection
5.3 of the Rules,2286 and by July 6, 2001, Gelles had submitted his response.2287 In his response,
Gelles stated that he was merely “screening Petty Officer King to determine whether or not
hypnosis would be an appropriate avenue for him,” and that King had already been made aware
of his Miranda rights. Gelles explained that he was “not serving in two capacities, as [his] only
role was advising NCIS, and in this instance assisting NCIS in determining whether or not Petty
Officer King was a proper subject for hypnosis.”2288 Gelles further noted that “Petty Officer
2285 Id.
2286 HC00011679 at 50.
2287 HC00011662.
2288 Id.
477
INDEPENDENT REVIEW REPORT TO APA
ETHICS ADJUDICATIONS
King was not a patient of [his],” and that his session with King was “an evaluative interview
designed to answer questions raised by Petty Officer King.”2289 Finally, with respect to the
question of confidentiality, Gelles stated that King was interviewed “with both agents physically
present in the room and they were referred to on several occasions,” and that the session had
been taped “in accordance with applicable federal law.”2290
On August 6, 2001, Ethics Office investigator, Deborah Carliner, drafted a decision
memo to the Ethics Committee Chair, Robert Kinscherff, recommending that they ask Gelles
some additional questions before formally charging him.2291 Although Steve Sparta was the
Ethics Committee Chair during 2002, Kinscherff had been deputized by Sparta to act in his stead
due to Kinscherff’s familiarity with the issues from his involvement with the preliminary
investigation in 2001. In her decision memo, Carliner wrote:
I believe Dr. Gelles did not clarify his role, which was that of a psychologist
working directly with agents who had been interrogating Mr. King…He led Mr.
King to believe that he was there to help him, which in my opinion was not his
role. I think he misused his influence when he stated that he and the agents were
King’s friends and King should trust the relationship…It’s not chargeable, but
after watching the tape twice, I believe Dr. Gelles was mocking, patronizing, and
abusive to Mr. King. Perhaps such behavior is necessary in military criminal
investigations, but Dr. Gelles is a psychologist who belongs to APA and as such
must abide by the Ethics Code, which I don’t think he has done.2292
Kinscherff agreed with the recommendation and added several questions of his own on
September 27, 2001.2293 On that same date, Carliner sent a letter to Gelles with ten follow-up
questions.2294
On December 26, 2001, the Ethics Office received Gelles’s response,2295 and on
January 22, 2002, Carliner drafted another decision memo to Kinscherff, recommending that
Gelles be charged and that a case be opened, citing standards 1.15, 1.16(a), 1.07(a), 1.07(b),
1.21(a), 5.01(a), and 5.01(c).2296
On February 11, 2002, Kinscherff responded to the memo,
asked Carliner if Sparta had seen the 5.01(c) standard, and noted that he otherwise concurred
with the charges.2297 On that same day, Carliner drafted a memo to Sparta and asked for his
input on standard 5.01(c) per Kinscherff’s request.2298 Sparta recommended that they obtain
2289 Id.
2290 Id.
2291 HC00011656.
2292 Id.
2293 Id.
2294 HC00011653.
2295 HC00011627.
2296 HC00011622.
2297 Id.
2298 HC00011621.
478
INDEPENDENT REVIEW REPORT TO APA
ETHICS ADJUDICATIONS
some clarification regarding Gelles’s role prior to him with this particular standard.2299 On
February 13, 2002, Carliner drafted a memo to the file, noting that she had a telephone
conversation with the Chair, and that he agreed to the charges.2300
On February 13, 2002, the Ethics Office issued a formal charge letter to Gelles and
informed him that a case had been opened against him under Part V, Subsection 6.1.1 because “it
[had] been agreed that, if substantiated, the charges detailed below could constitute a violation of
the Ethics Code” under Part V, Subsection 5.2301 The letter did not explicitly explain the two-
part inquiry conducted by the Ethics Office under Subsections 5.4 and 5.5. The letter stated that,
“[t]he intent of the Ethics Committee is to investigate fairly and thoroughly all complaints filed
in accordance with the Rules.”2302 The letter charged that Gelles violated the following
standards of the 1992 Ethical Principles of Psychologists and Code of Conduct:
x Standard 1.152303 and 1.16(a)2304 in that he allegedly misused his influence as a
psychologist when: (1) he told the complainant he was there to “help” him when
Gelles was actually there to provide direct support to a criminal investigation; (2)
he encouraged the complainant’s cooperation with the agents whose job it was to
interrogate him and investigate his activities by stating that he (Gelles) and the
agents were King’s “friends” and King should trust the relationship; and (3) he
failed to explain to the complainant about false memories but instead concentrated
on suppressed memories and encouraged him to work on releasing the memories;
x Standard 1.21(a)2305 in that he evaluated the complainant and provided him
services at the request of a third party and failed to clarify at the outset of the
service or any other time, the nature of his relationship with the complainant,
Gelles’s relationship with NCIS, the role Gelles was playing, and the impact
Gelles’s relationships with the parties would have on the services provided;
2299 Id.
2300 HC00011620.
2301 HC00011614.
2302 Id.
2303 Standard 1.15: (“Because psychologists’ scientific and professional judgments and actions may affect
the lives of others, they are alert to and guard against personal, financial, social, organizational, or
political factors that might lead to misuse of their influence.”)
2304 Standard 1.16(a) (“Psychologists do not participate in activities in which it appears likely that their
skill or data will be misused by others, unless corrective mechanisms are available.”)
2305 Standard 1.21(a) (“When a psychologist agrees to provide services to a person or entity at the request
of a third party, the psychologist clarifies to the extent feasible, at the outset of the service, the nature of
the relationship with each party. This clarification includes the role of the psychologist (such as therapist,
organizational consultant, diagnostician, or expert witness), the probable uses of the services provided or
the information obtained, and the fact there may be limits to confidentiality.”)
479
|
||
|
|
|