Psychologists Abandon the Nuremberg Ethic: Concerns for Detainee Interrogations
Abstract: In the aftermath of 9-11, the American Psychological Association, one of the largest U.S. health professions, changed its ethics code so that it now runs counter to the Nuremberg Ethic. This historic post-9-11 change allows psychologists to set aside their ethical responsibilities whenever they are in irreconcilable conflict with military orders, governmental regulations, national and local laws, and other forms of governing legal authority. This article discusses the history, wording, rationale, and implications of the ethical standard that U.S. psychologists adopted 7 years ago, particularly in light of concerns over health care professionals' involvement in detainee interrogations and the controversy over psychologists' prominent involvement in settings like the Guantánamo Bay Detainment Camp and the Abu Ghraib prison. It discusses possible approaches to the complex dilemmas arising when ethical responsibilities conflict with laws, regulations, or other governing legal authority.
In the year following 9-11, one of the largest U.S. health professions—the American Psychological Association (APA)—voted to change its ethics code. The new code broke a tradition in which psychologists remained individually accountable for their ethical responsibilities even when those responsibilities were in conflict with laws, orders, and other forms of governmental authority. The tradition reaches far back into history but nowhere more vividly than the Nuremberg trials following World War II.
Nuremberg and similar efforts underscored the consequences of setting aside basic ethical responsibilities, even under cover of state authority. Carefully researched books like By Trust Betrayed (Gallagher, 1990), Psychotherapy in the Third Reich (Cocks, 1985), and The Professionalization of Psychology in Nazi Germany (Geuter, 1992) document the extent to which many health professionals worked with the Third Reich, helping them to achieve their aims. For example, Geuter's (1992) archival research revealed that “psychologists cooperated with the army, state, party, and industry, and yet still seemed to believe that they were acting as reformers….”
Facing charges that their participation as health care professionals had provided both expertise and a veneer of legitimacy to a process that involved violations of basic human rights, many health professionals claimed that they were neither responsible nor accountable for their acts. They had acted under laws, regulations, and governmental authority that shielded them from personal responsibilities and accountability. They were “just following the law” or “just following orders.” The judgments at Nuremberg and world opinion refused to accept this reasoning.
On August 21, 2002, in the aftermath of 9-11, the American Psychological Association departed from its defining traditions and historic ethical framework by embracing a rationale similar to that used by so many Nuremberg defendants. The American Psychological Association's ethics code prior to 2002 recognized that ethical responsibilities sometimes conflict with governmental authority. The enforceable ethical standards included the following statement (Section 1.02): “If psychologists' ethical responsibilities conflict with law, regulations, or other governing legal authority, psychologists make known their commitment to the Ethics Code and take steps to resolve the conflict” (APA, 1992, p. 1600).
The changed ethics code adopted after 9-11, however, explicitly allowed psychologists to set aside any ethical responsibilities that were in irreconcilable conflict with various forms of governmental authority. Section 1.02 now includes a second sentence: “If the conflict is unresolvable via such means, psychologists may adhere to the requirements of the law, regulations, or other governing legal authority” (APA, 2002, p. 1063).
Allowing psychologists to set aside individual accountability had been discussed within the American Psychological Association prior to 9-11, but it was only after that historic attack that that APA adopted the concept as their enforceable ethical standard. APA considered possible limits to the concept of allowing laws, regulations, or state authority to replace individual ethical responsibility (e.g., to apply only to ethical responsibilities not involving human rights) but decided to place any limits only in the non-enforceable section of the code, where they could not serve as the basis of an ethics complaint against psychologists.
Steven Behnke, J.D., Ph.D, the American Psychological Association Director of Ethics, stated APA's rationale for the change to ethics code Section 1.02, emphasizing that it was “written largely in response to conflicts regarding confidentiality, arising most often when courts issue subpoenas for psychologists' records” (Behnke, 2008, p. 54).
Changing an ethics code to make the Nuremberg defense available and acceptable in regard to all ethical responsibilities whenever they conflict irreconcilably with a law, a regulation, or any other governing legal authority seems starkly mismatched to the stated problem regarding exceptions to confidentiality, especially when other remedies are available. For example, APA might have written the ethics code section on confidentiality to allow psychologists to release information in response to a valid subpoena, court order, etc., when mandated or permitted under prevailing law.
It also seems worth noting that for the past 16 years, the American Psychological Association ethics code already explicitly addressed this problem and provided an exception to confidentiality requirements when revealing confidential information that was legally mandated or permitted. For example, both the 1992 code (APA, section 5.05a) and the current 2002 code (APA, section 5.05b) state: “Psychologists disclose confidential information without the consent of the individual only as mandated by law, or where permitted by law for a valid purpose…”
2. Detainee interrogations as context
A concept like the Nuremberg ethic may seem abstract and dated until practical implications are considered in a specific contemporary context. One area in which the ethical responsibility and accountability of health care professionals are central concerns is the interrogation of detainees in settings like the Guantánamo Bay Detainment Camp and the Abu Ghraib prison.
The American Psychological Association has emphasized both the uniqueness and the value of psychologists' participation in this area. The 2007 “Statement of the American Psychological Association on Psychology and Interrogations submitted to the United States Senate Select Committee on Intelligence,” for example, stressed that “Conducting an interrogation is inherently a psychological endeavor…. Psychology is central to this process…. Psychologists have valuable contributions to make toward the goals of preventing violence and protecting our nation's security through interrogation processes” (APA, 2007b).
Asserting that psychologists' competencies in this area set them apart from physicians and justified a special role in interrogations for which physicians lacked competence, the Director of the American Psychological Association's Ethics Office wrote: “This difference, which stems from psychologists' unique competencies, represents an important distinction between what role psychologists and physicians may take in interrogations” (Behnke, 2006, p. 66).
Psychiatrists tended to see the difference in terms not of competencies but of ethics. Discussing psychiatrists' “core values,” American Psychiatric Association president Steven Sharfstein (2006) wrote:
I told the generals that psychiatrists will not participate in the interrogation of persons held in custody. Psychologists, by contrast, had issued a position statement allowing consultations in interrogations. If you were ever wondering what makes us different from psychologists, here it is. This is a paramount challenge to our ethics and our Hippocratic training. Judging from the record of the actual treatment of detainees, it is the thinnest of thin lines that separates such consultation from involvement in facilitating deception and cruel and degrading treatment. Innocent people being released from Guantanamo – people who never were our enemies and had no useful information in the War on Terror – are returning to their homes and families bearing terrible internal scars. Our profession is lost if we play any role in inflicting these wounds (p. 1713).
The American Psychological Association's endorsement of the value of their own contributions to the interrogation process, in contrast to the stance taken by the American Psychiatric Association, led to a more prominent role for psychologists in 2006. The New York Times reported:
Pentagon officials said Tuesday they would try to use only psychologists, not psychiatrists, to help interrogators devise strategies to get information from detainees at places like Guantánamo Bay, Cuba. The new policy follows by little more than two weeks an overwhelming vote by the American Psychiatric Association discouraging its members from participating in those efforts. Stephen Behnke, director of ethics for the counterpart group for psychologists, the American Psychological Association, said psychologists knew not to participate in activities that harmed detainees. But he also said the group believed that helping military interrogators made a valuable contribution… (Lewis, 2006).
Though the American Psychological Association characterized the role of psychologists as valuable and emphasized that “psychologists knew not to participate in activities that harmed detainees,” some reports conflict with these claims. A few examples follow.
Using the Freedom of Information Act to collect declassified U.S. Department of Defense documents, the American Civil Liberties Union (2008) issued a news release – including links to the original Defense Department documents – with the title “Unredacted Report Confirms Psychologists Supported Illegal Interrogations in Iraq and Afghanistan.”
Analyzing declassified US Army investigation and interrogation logs, medical ethicist Steven Miles (2007) revealed the presence of a psychologist when a dog was used to “exploit individual phobias.” (Federal Bureau of Investigation agents removed themselves from this interrogation because of this methodology, formally complained, and prompted an Army investigation.)
Eban documented that that “psychologists weren't merely complicit in America's aggressive new interrogation regime. Psychologists, working in secrecy, had actually designed the tactics and trained interrogators in them while on contract to the C.I.A.” (Eban, 2007).
Mayer reported that “[General] Dunlavey soon drafted military psychologists to play direct roles in breaking detainees down. The psychologists were both treating the detainees clinically and advising interrogators on how to manipulate them and exploit their phobias…” (Mayer, 2008, p. 196) and that “psychologists were heavily involved in drawing up and monitoring interrogation plans, which were designed individually for each detainee…. Sleep deprivation was such a common technique.... pornography [was used] to manipulate detainees… Detainees were routinely shackled in painful ‘stress positions’” (Mayer, 2005).
3. Increasing conflict and criticism
Psychologists' assertions of their unique competencies and valuable contributions to detainee interrogations became a focus of heightened controversy. For example, Robert Jay Lifton (2008) critiqued the claims that “psychologists knew not to participate in activities that harmed detainees” and had unique competencies to protect detainees and make sure that interrogations avoided harmful methods.
The idea that psychologists should be kept around during interrogation in order to protect the person being interrogated or avoid or advise against extreme harmful measures, that idea seems quite absurd to me because there's no guarantee that a psychologist will, anymore than anyone else, moderate those procedures. He or she can be caught up in the pressures of the group…. Some of the greatest roles in bringing that [i.e., “some of the worst abuses…to break down our prisoners”] about have been played by psychologists.
In another example of sharply conflicting opinions, Dr. Behnke claimed that the government documents that the ACLU obtained and released under the heading “Newly Unredacted Report Confirms Psychologists Supported Illegal Interrogations in Iraq and Afghanistan” (American Civil Liberties Union, 2008) provided an example of psychologists fighting abuse and validated APA policy. However, the ACLU responded: “We do not…agree with your conclusion that documents recently obtained by the ACLU…demonstrate that the APA's ‘policy of engagement served the intended purpose’…. Rather, we are deeply concerned by the fact that, viewed in context, these documents warrant the opposite conclusion” (Romero, 2008, p. 1).
The Boston Globe (2008; see also Goodman, 2007) followed up news reports with an editorial that began:
FROM THE moment US military and civilian officials began detaining and interrogating Guantanamo Bay prisoners with methods that the Red Cross has called tantamount to torture, they have had the assistance of psychologists. This has been a source of anguish to many members of the profession, who want to join their colleagues in other professional organizations and draw a clear line against psychologists' involvement in interrogation of detainees.
Many psychologists fault their own professional organization, the American Psychological Association, for not taking a firmer stance and for not punishing association members who in the past have helped interrogators in using techniques like sleep deprivation to raise prisoners' stress levels or in finding their emotional weak points. When the association convened a task force on the subject in 2005, a majority of members turned out to have ties with the military or US intelligence.
Other articles in 2007–2008 reflected escalating concerns over psychologists' policies and behavior. A few titles convey the controversy's focus and intensity: "MHC [Mount Holyoke College] Joins Outcry Over Psychologists' Torture Role" (Palpini, 2008); "The Ethics of Interrogation and the American Psychological Association: A Critique of Policy and Process" (Olson, Soldz, & Davis, 2008); "Psychologists in Denial” (Goodman & Goodman, 2008); “Physicians for Human Rights Urges American Psychological Association to Investigate Psychologists' Role in Torture" (Physicians for Human Rights, 2008); "US Army Psychologists, Medics Supported ‘Abusive’ Interrogations After 2003 Ban: ACLU" (Roden-Molina, 2008); "APA and the Myths and Costs Of Endorsing Psychologist Involvement in Detainee Interrogations" (Olson & Davis, 2008); "Psychologists Aiding and Abetting Torture" (Kory, 2007); and "Collective Unconscionable: How Psychologists, The Most Liberal of Professionals, Abetted Torture" (Levine, 2007). [Footnote 1: An online archive provides citations and, if available, links to over 320 articles, books, and chapters addressing the controversy over psychologists' and physicians' participation in the planning or implementation of detainee interrogations. The archive is at http://kspope.com/interrogation/index.php.]
4. The 2008 vote by the American Psychological Association membership
In 2008, after years of publicizing claims about the benefits of psychologists participating in the detainee interrogation process, the American Psychological Association sent a ballot to all members putting this policy up for a vote. On September 17, 2008, APA issued a press release announcing the results: “The petition resolution stating 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 persons being detained or for an independent third party working to protect human rights’ was approved by a vote of the APA membership” (APA, 2008b). The press release noted that “APA's membership includes more than 148,000 researchers, educators, clinicians, consultants and students” and that there were “8792 voting in favor of the resolution; 6157 voting against the resolution” for a total of 14,949 members returning their ballots to vote on this issue.
It is important to note that the new policy resulting from this ballot initiative is not enforceable. On July 28, 2008, the American Psychological Association Office of Public Affairs had issued clarifications about the ballot initiative under the title “Petition on Psychologists' Work Settings: Questions and Answers.” The response to the question “If adopted would the petition be enforceable by APA?” includes the following statement: “As explained above, the petition would not become part of the APA Ethics Code nor be enforceable as are prohibitions set forth in the Ethics Code” (APA, 2008c). Not only is the policy itself not enforceable, but the Ethics Committee is not even required to consider the policy in its deliberations.
The same analysis applies to the policies, public statements, and resolutions regarding torture over the years that APA has chosen to make nonenforceable rather than include in the enforceable section of its ethics code (e.g., the 1986 “Resolution Supporting the U.N. Declaration and Convention against Torture” (APA, 1986); the 2006 “Resolution Against Torture” (APA, 2006); the 2007 “Reaffirmation of the APA Position against Torture” (APA, 2007a); the 2008 “Amendment to the Reaffirmation of the APA Position Against Torture” (APA, 2008a)). As previously discussed, even in instances when a prohibition appears in the enforceable section of the ethics code, Section 1.02 of APA's post-9-11 ethics code states that if the ethical responsibilities are in irreconcilable conflict with a law, or a regulation, or any other governing legal authority, “psychologists may adhere to the requirements of the law, regulations, or other governing legal authority.”
5. The Nuremberg question
The American Psychological Association emphasizes psychologists' positive contributions to these interrogations. The APA president wrote in 2007: “The Association's position is rooted in our belief that having psychologists consult with interrogation teams makes an important contribution toward keeping interrogations safe and ethical” (Brehm, 2007). Even if this assertion is correct and psychologists' involvement during these years has kept the detainee interrogations both safe (e.g., ensuring that the interrogation causes no harm to detainees) and ethical (e.g., ensuring that the interrogation does not deprive detainees of basic human rights), it is still worth considering future implications. What would we want to require of psychologists if their fundamental ethical responsibilities were at some point in the future to come into serious conflict with a law, regulation, or governing legal authority? Should psychologists have the option of an absolute shield against all ethical responsibilities and accountability, and should this be the heart of a profession's formal statement of ethical values?
6. Suggested steps
How can individual health care professionals and the professional associations best respond to the complex issues involving the Nuremberg ethic of personal accountability, conflicts between ethical responsibilities and governmental authority, and the controversies over health care professionals' involvement in detainee interrogations? The following three steps, though by no means exhaustive, might be helpful.
6.1. Teaching and discussing the evolution of various approaches to these ethical issues as part of the basic and continuing education of all health care professionals
Key aspects would include not only instances, like the Nuremberg trials, in which professionals tried to justify complying with state authority in conflict with fundamental ethical responsibilities but also instances of attempts to justify breaking laws or disobeying orders to remain faithful to ethical responsibilities.
A stance that ethical responsibilities may require an individual to violate the law or other forms of state authority brings its own daunting complexities and challenges. Thoreau argued that if the law “requires you to be the agent of injustice to another, then, I say, break the law” (1849/1960, p. 242). But can an individual pick and choose which laws to obey and which to break? An oversimplified approach to refusing certain legal obligations that are judged to be in conflict with fundamental ethical responsibilities might suggest that professionals view themselves as somehow above the law. Burke (1790/1961) cautioned against accepting the individual's judgment about the rightness of breaking a law: “One of the first motives to civil society, and which becomes one of its fundamental rules, is, that no man should be judge in his own cause” (p. 71). The U.S. Supreme Court, in Walker v. Birmingham (1967), affirmed this “belief that in the fair administration of justice no man can be judge in his own case, however exalted his station, however righteous his motives, and irrespective of his race, color, politics, or religion” (pp.1219–1220).
One of the parties to that Supreme Court case wrote about an approach to breaking the law that, by design, avoided his being the judge in his own case.
Martin Luther King, Jr., had been a petitioner in Walker v. Birmingham, and in accordance with the Supreme Court's decision, served his sentence in the Birmingham jail. His “Letter from Birmingham Jail” (King, 1963), written during his solitary confinement, drew renewed attention to the concept of breaking the law while simultaneously expressing respect for law. Thoreau (1849/1960) had coined the term “civil disobedience” to describe a centuries-old approach to breaking the law while respecting the rule of law and actively inviting the state to judge formally whether the decision was correct.
Many historical figures (e.g., Gandhi, 1948; King, 1958, 1964; Plato, 1956a, 1956b; and Tolstoy, 1951) have contributed to the evolution of this approach through their writings and actions, helping to define an act of conscience that is out in the open for all—including the authorities—to see, and that voluntarily invites and accepts formal judgment and legal penalties. This complete lack of any attempt to avoid detection, prosecution, and penalty is essential in reaffirming respect for the process of law and accountability.
One source of state support for professionals engaging in this form of law breaking was the California Supreme Court's decision in Hallinan v Committee of Bar Examiners of State Bar, 1966, p. 239): “If we were to deny to every person who has engaged in…nonviolent civil disobedience…the right to enter a licensed profession, we would deprive the community of the services of many highly qualified persons of the highest moral courage.”
6.2. Identifying decision-making patterns and approaches and emphasizing critical thinking about ethical responsibilities in conflict with laws, regulations, and other forms of state authority
Research into health care professionals' decisions to break the law for moral reasons shows some interesting patterns. An anonymous survey of senior psychologists found that they reported deeper moral values as the reason that they had engaged in a variety of activities that included refusing to make a legally mandated report of child abuse, illegally divulging confidential information, refusing to make legally mandated warnings regarding dangerous clients, and engaging in sex with a patient (Pope & Bajt, 1988).
Examining and strengthening the decision-making process could include increased awareness of how easily even the most well-intended conclusions can fall prey to an array of logical fallacies including the false dilemma, golden mean fallacy, tu quoque (you too) fallacy, affirming the consequent fallacy, argument to logic fallacy, disjunctive fallacy, composition fallacy, and division fallacy, to name but a few (Pope & Vasquez, 2007, pp. 20–26).
It may also be helpful to explore the cognitive strategies by which we allow, accommodate, accept, or justify human rights violations and other departures from ethical responsibilities. How, for example, is an inhumane, widely condemned human rights violation such as torture allowed to occur, even in jurisdictions where it is legally and ethically banned? How do citizens of a state which engages in torture or, through inaction, allows torture to occur rationalize this practice and their own failure to take action?
A few of the most common cognitive strategies of accommodation, acceptance, or justification include relying on state authority and formal orders; using abstraction and other linguistic transformations; dehumanizing victims; sanctioning revenge; construing torture as a legitimate practice to prevent destruction; making the torturer the victim; viewing torture as a valid, reliable, and unique method for obtaining truthful information; denying relationship or responsibility; and denying the existence of torture (Pope, 2001).
A final example of the factors that can interfere with critical thinking about whether to violate ethical responsibilities is the cognitive strategies virtually all of us resort to at one time or another to justify engaging in something we know or suspect is unethical. The following short list of ethical fallacies we tend to rely on when we are most tired, stressed, distracted, or tempted is adapted from a more complete array (Pope & Vasquez, 2007, pp. 33–36):
• It's not unethical as long as we were required to do it.
• It's not unethical if we can use the passive voice and look ahead. If we have turned away from our ethical responsibilities, all we need do is nondefensively acknowledge that mistakes were made and it's time to move on.
• It's not unethical if a professional association allows it.
• It's not unethical if we have written an article, chapter, or book about it.
• It's not unethical as long as we can name others who do the same thing.
• It's not unethical as long as we didn't mean to hurt anyone.
• It's not unethical even if our acts have caused harm as long as the person harmed has done something wrong, is in some way unlikable, is acting unreasonably, or won't cooperate.
• It's not unethical as long as it works.
• It's not unethical as long as we needed to do it.
• It's not unethical as long as it would be almost impossible to do things another way.
• It's not unethical as long as there are books, articles, or papers claiming that it is the right thing to do.
6.3. Maintaining active, informed awareness of the full array of relevant legal requirements and ethics codes, and the degree to which they may be in conflict with each other
Only if we are aware of the full span of laws, regulations, orders, ethics codes relevant to a question of “what do I do now?” are we in a position to begin thinking through our ethical responsibilities in a fully informed way. The following two documents provide an example of the kinds of potential conflicts and questions that can arise in the area of ethical responsibilities and detainee interrogations.
To craft an ethics policy to address detainee interrogations and other work in the area of national security, the American Psychological Association convened a task force. APA formally approved and issued the Report of the American Psychological Association Presidential Task Force on Psychological Ethics and National Security (PENS) in 2005. The PENS policy held that psychologists working in this area could withhold full disclosure, but did not prohibit dissembling as unethical: “While all members of the Task Force agreed that full disclosure of the nature and purpose of a psychologist's work is not ethically required or appropriate in every circumstance, members differed on the degree to which psychologists may ethically dissemble their activities from individuals whom they engage directly (APA, 2005).”
It is worth looking at the APA's ethical policy in regard to disclosure and dissembling in light of the ethical principles for health personnel working with detainees that was adopted by the United Nations in 1982. Principle 3 of 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 states in its entirety: “It is a contravention of medical ethics for health personnel, particularly physicians, to be involved in any professional relationship with prisoners or detainees the purpose of which is not solely to evaluate, protect or improve their physical and mental health” (United Nations, 1982).
One of the questions helpful in assessing the degree to which these two policy statements are consistent or in conflict is: If the sole purpose of the professional relationship with detainees is to evaluate, protect, or improve their physical and mental health, what purpose does active dissembling or withholding full disclosure serve?
It is impossible to know how widespread the impact of the American Psychological Association's reputation, size, and influence have been in these areas. For example, did a healthcare organization of over 148,000 members repeatedly endorsing over the years its participation in detainee interrogations, emphasizing the unique value of its competencies in this area, and offering public reassurances about those interrogations tend to encourage some in the public to believe that the methods used were necessary, ethical, unharmful, and effective, especially in light of the fact that psychologists played important roles in designing and providing training in some of these methods?
What is clear is that the American Psychological Association chose to adopt very different policies and issue very different public statements from the other major U.S. health care organizations, as the statement by Steven Sharfstein, American Psychiatric Association's 2005–2006 president, cited earlier, emphasized.
In the 7 years since the American Psychological Association adopted an ethics code that set aside the Nuremberg ethic, neither the American Medical Association nor the American Psychiatric Association has followed its lead. Other major health care organizations have continued their leadership in the opposite direction, reminding their members and the world of the moral necessity of Nuremberg's fundamental ethic for health care professionals. The World Medical Association, for example, issued a press release underscoring this ethical responsibility: “At Nuremberg in 1947, accused physicians tried to defend themselves with the excuse that they were only following the law and commands from their superiors…. [T]he court announced that a physician could not deviate from his ethical obligations even if legislation demands otherwise” (World Medical Association, 2003).
Nuremberg's message that ethical responsibilities and accountability are indispensable came at such great price, it should not be forgotten or set aside lightly.
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This article was published in International Journal of Law and Psychiatry, vol. 32, #4, pp. 161-166; May-June, 2009.