Consult: Howard Zonana, PhD

 

Health Professional Consultation with Howard Zonana

Date:  July 22, 2009

78-minute teleconference

Transcribed by Jean Maria Arrigo

Edited by Ray Bennett

Reviewed by Howard Zonana on  November 15, 2009


Howard Zonana, M.D., is Professor of Psychiatry at Yale University, Clinical Professor (Adjunct) of Law at Yale Law School, and former Chair of the American Psychiatric Association Council on Psychiatry and the Law


Teleconference Participants:  Jean Maria Arrigo, Jancis Long, Ted Strauss, and Howard Zonana.


Note:  The transcript has been streamlined a bit.   In this transcript, the lower-case “p” distinguishes the acronym for the American Psychiatric Association, ApA, from the acronym for the American Psychological Association, APA.


Consultation with Howard Zonana, MD, on

The Development of the American Psychiatric Association

Position Statement on 

Psychiatric Participation in Interrogation of Detainees


ARRIGO:  Jean Maria.


ZONANA:  Hi.  Howard Zonana.


ARRIGO:  Good to have you on the call.  I guess you know that psychologists have had a lot of difficulties over ethics recently. 


ZONANA:  Oh, yes.


ARRIGO:  We’ve been trying to get some comparisons, so we’ve talked to a member of the military division of the Canadian Psychological Association, we’ve talked to a couple of anthropologists who were working on ethics of Human Terrain Teams, and so on.  You’re our first psychiatrist, except for one confidential conversation I had with a military psychiatrist, so we are pretty ignorant.

What has been your contact with the issue?


ZONANA:  I was on the ApA Council on Psychiatry and Law that developed the position statement on interrogations and also the one that shepherded it through the AMA [American Medical Association].  We got them to agree to a similar one.  I’ve been on the ApA Council on Psychiatry and Law for a long time.


ARRIGO:  May I ask, do you have any military background?


ZONANA:  The main military background I have is that when I was Chair of the Council.  I worked on some of the policies around military mentally ill and treatment in the military, and wrote a chapter with David Armitage in a military book1.  And I’ve also had military psychiatrists that have come up in our forensic psychiatry training program. 


LONG:  Hello, this is Jancis.


ARRIGO:  We’ll wait until others come on [the line] for a full introduction, but I was asking Dr. Zonana what kind of contact he had with the military.


ZONANA:   We’ve had fellows [at Yale Law School], and I’ve worked with people also in the VA [Veterans Administration] and with some of the psychiatrists who’ve been on the bases here with some immigration issues and things like that.  The Law School does a lot of representation of people seeking asylum.  There have been some cases from Iraq and other places that brought up some of the military issues.


ARRIGO:   I remember attending a conference at Yale a few years ago that was basically put on by the CIA.2  The CIA has a large background at Yale.  Do you come into contact with that in any way?


ZONANA:  One of our former fellows did some research in some of the SERE training,3 so I’ve had that contact as well — [Charles] Andy Morgan [MD].


ARRIGO:  We’ve read papers by him.


[Ted Strauss comes on the line.  Jean Maria asks Jancis to telephone missing participants.]


ARRIGO:  [To Howard Zonana]  While we’re waiting for that — I don’t want anyone to miss what you have to say— I’ll say a few words about our Casebook.


ZONANA:  I couldn’t tell from the e-mails exactly whether this was just a couple of you guys who were either on a committee or doing a presentation at the meeting or whether it’s some other group.


ARRIGO:  Well, I’ll give you a short introduction.  In 2005, at the American Psychological Association,  there was a president’s task force to work out policy.  I was appointed to that and then became a dissident member.  One of the things I felt was so critical to our policy were actual examples.  They wouldn’t put in any examples.  It was all what I would call platitudes.  Anyway, they promised that we would have a casebook afterwards.  As that casebook failed to materialize, Psychologists for Social Responsibility — this was in March 2008 — we decided to put it out ourselves.  Our object was to understand the possible complexities of psychologists in national security settings that were related to interrogation.  We weren’t willing to treat the psychologists as purely morally autonomous, the way the APA Ethics Code does, but to recognize the all the situational pressures, and also to recognize all the people who were doing things that were supportive and germane.  We’re trying to get that kind of complex view, and we doing it under the auspices of Psychologists for Social Responsibility.


ZONANA:  Is that a section of the APA, or what?


ARRIGO:  No.  There’s a section of the APA called the Division of Peace Psychology, Division 48.  We have roots in that, but many of us feel that section became rather passive with respect to issues of this sort.  So it is actually a separate organization, like the Network of Concerned Anthropologists, which is separate from the American Anthropological Association.  Most [PsySR] people have overlapping membership with the Division of Peace Psychology, but it’s free from that.

We have the President of PsySR on the line right now.


LONG:  PsySR came into being before the Division of Peace Psychology.  Then a lot of people in PsySR worked to get a Division of Peace Psychology.  It was considered quite a coup to get a Division of Peace Psychology within the APA, at a time when we felt that APA was the leading voice in the field.  There was always a lot of overlapping membership, but now there is more separation.


ZONANA:  So it’s a separate organization?


LONG:  It’s completely separate from APA and always has been.


ZONANA:  How big is the group?


LONG:  We have around 800 members.


ARRIGO:  Jancis Long is the outgoing president of PsySR, and Stephen Soldz, who couldn’t join the call. is president-elect for one year ahead, so the Casebook is centrally situated in Psychologists for Social Responsibility.

I think we should begin with introductions now and see whether others come on the line.  So let’s start with Ted, whose case is most relevant, then Jancis, then myself, then Dr. Zonana.


STRAUSS:  Hi.  My name is Ted Strauss.  I’m a masters student in psychology at the New School for Social Research in New York.  The case that I’m working on relates to the Ethics Committee of the APA, of which I’m not a member, and specifically about complaints against one individual named John Leso.  He was a military psychologist who was known to have been involved in interrogations at Guantanamo, employing SERE methods.  A number of complaints have been made against him to the APA and also to [state] licensing boards, and the APA has not ever acted on those complaints.  There’s been a long exchange between the APA Ethics Committee and activists such as ourselves about policies that they hold and whether or not they correctly implement them.  The case that I’m working on has to do with the activities of the Ethics Committee over the last five to ten years.


LONG:  I’m Jancis Long.  I’m a clinical psychologist, currently, as Jean Maria said, the outgoing President of PsySR.  I have become very interested in recent years in the ethics of professional organizations, and I hope this Casebook will have relevance beyond the United States, around the world.


ARRIGO:  I’m a social psychologist.  My work — until I got involved in all of this — has been mainly with military intelligence professionals, doing oral histories, trying to understand their moral development.  I consider myself a human rights activist but one who works from the inside, trying to give moral voice to intelligence professionals. 

Please, let’s hear from you then.


ZONANA:  I’m Howard Zonana.  I’m a psychiatrist, based here at Yale. I’ve run a forensic psychiatry training program, and I also have an appointment at the Law School.  One of the people involved, on the background reading, who’s been Chair of the Ethics Committee [Director of the APA Ethics Office, a staff position] most recently, is Steve Behnke, who I knew as a law student here.  I’ve been involved in the ApA and policy around this issue and other boundary issues in Psychiatry and Law for over 20 years now.  But I’ve been on the Council of Psychiatry and Law and worked on the development of policy regarding use of psychiatrists in interrogations and working on the ethical guidelines for the American Academy of Psychiatry and Law, where I’m the medical director, on some of these same issues around torture.  I most recently presented at the annual Psychiatric Association meeting on the role of physicians in detainee interrogations, based on some of the recent documents that have been released.  So I have a longstanding interest in this and have worked in this area.


ARRIGO:  Maybe you could just give us the basic story, tell us how your committee was formed and how you proceeded.


ZONANA:  Well, we spent two years developing the policy.  We saw this as an emerging issue.  When the reports started coming out of Guantanamo and after Abu Ghraib, it sort of came together in a way that seemed like it was important for ApA to make some statement at least about what psychiatrists should or shouldn’t be doing. 


ARRIGO:  Could you say who saw this as an emerging issue, at least in terms of your institutional roles?


ZONANA:  Well, several of us.  We have a meeting on the Council of Psychiatry and Law, and generally we bring up these kinds of issues.  I presented some papers at that point at the annual meeting and things like that.  So our committee formed, and we invited a number of people from the military, some people from the [American] Psychological Association, and tried to work out over a number of years what our position be on that.  It took a couple of years to get enough discussion and have enough back and forth so that we felt we understood at least a little bit of what was going on in the military and how that worked.


ARRIGO:  Could you tell us what the dates were and what the occasions of this back and forth were?  We [ostensibly] did it in a weekend.


ZONANA:  This was right after Abu Ghraib pictures got released.  I think it was September at the committee meetings.  We have a group that gets together, the Committee on Psychiatry and Law and the Judicial Action Commission, that meets to discuss upcoming issues.  We invited a number of people, people from the military — I think it was Camp Ritchie (MD).  I think we had Andy Morgan and Michael Gelles.  I can’t remember if Steve [Behnke] was there also.  But there were a number of people who came to that meeting.  And then we had several meetings to try to hammer out and work on drafts of the policy.  I think it took — that was probably 2004 or something around there — and I think it was around 2006 when the policy finally came out.  I have it here somewhere.


ARRIGO:  So this wasn’t directed by the officers of the ApA, or the Board?


ZONANA:  No, no.  Our Psychiatry and Law group has been a very active group in picking out issues like this, looking at cases coming to the court, and trying to figure out what are things we may be asked to develop policy that must be approved by the Board or develop positions for amicus briefs to court cases. 


ARRIGO:  Are you considered political progressives in the ApA?


ZONANA:  I don’t use those labels.  I think there’s a broad range of membership on the committee that you would call politically conservative to liberal.


STRAUSS:  When an opinion document is made by your committee, does it then become official policy, or is there a whole other procedure?


ZONANA:  That’s a ten-minute discussion about what is policy in the [American] Psychiatric Association.  In brief, I would say there are several directions it could go.  Anything that comes out of the Council has to go to what is known as the Joint Reference Committee, which has members from the Assembly, which, if it’s going to be policy, has to be passed by both the Assembly and the Board of Trustees.  That’s for sort of black-letter ApA policy or positions.  There are lesser policies, like when we write an amicus brief.  The Board also has to approve an amicus brief.  That represents some kind of statement, but it’s not the same black-letter quality statement.  We also then have resource documents, which go out to membership, which again don’t have the same black-letter quality, but they represent guidance to the field.  I don’t know how many people outside of the ApA understand many of the nuances of all that, but basically those [items] all do get circulated around.  Then there are task force reports, which, again, are not necessarily full ApA policy but do represent some form of policy statement.


STRAUSS:  Thank you.


ARRIGO:  So how did you come to conclusions?


ZONANA:  Well, if you haven’t seen our position paper on that, we ended up with a three-point statement that said [see Appendix]:


Psychiatrists should not participate in, or otherwise assist or facilitate, the commission of torture of any person, and, if you become aware, must report it promptly to persons in a position to take corrective action.


Psychiatrists providing medical care to detainees owe their primary obligation to the well-being of patients and should not participate or assist in any way, whether directly or indirectly, overtly or covertly, in the interrogation of their patients on behalf of military or civilian agencies.


ARRIGO:  Of their patients.  What about their non-patients?


ZONANA:  The third point is: 


Psychiatrists should not participate in the interrogation of persons held in custody by military or civilian investigative or law enforcement authorities, whether in the United States or elsewhere.  Nor should they provide information nor advice to military or civilian investigative or law enforcement authorities regarding the likely consequences of specific techniques of interrogation that is any way particularized in its application to an individual detainee.


ARRIGO:  Well, this is music to our ears. 


ZONANA:  That statement came out on October 10, 2005.


ARRIGO:  Wow!  That was just after ours [in July 2005].


ZONANA:  Right.  So we took a different position.  And the military immediately passed a guidance that took psychiatrists out of interrogations, so to speak. 


ARRIGO:  Did you have resistance to your position in ApA?


ZONANA:  There are always people who — You know, we spent hours going over every word, as you know, if you’ve ever participated in guideline development.  So there was a wide-ranging discussion.  But I would say, by the time we got to the end of it, I would say there was a strong consensus that this was a good position.


ARRIGO:  Even from military psychiatrists?


ZONANA:  The military people were not as strong for this.


STRAUSS:  When you say that the military sort of kept psychiatrists out of the market, what was the timeline, and how was that perceived, and what was —


ZONANA:  I think it was Colonel Elspeth Ritchie and some other people who went back to the — She was, I think, working under the Surgeon General for the Army at that point, so the army wrote a policy at that point, I think, that reflected this issue. 


ARRIGO:  But you didn’t have any experience of pressure from the security sector?


ZONANA:  Well, there certainly were people who — We heard from the psychologists, the ones who were involved in your committee.  And that got a lot of press, who was on the committee and who wasn’t on the committee.  At least the public statements were that they didn’t observe any torture and wouldn’t condone it, at that point.  They were more willing to consult around training.  And there was a fair amount of discussion about that, whether one could do any training.  You see, we defined the policy around any individual detainee, but we didn’t say a psychiatrist couldn’t help train military people on how to interview or something like that, a general kind of thing.


LONG:  After your statement in 2005, did any military psychiatrists leave their posts as a result of this statement?


ZONANA:  I don’t know the details of whether they left their posts or whether they were just told that they should not participate in these kinds of things.  I think, from a psychiatric point of view, in contrast to a psychological point of view, there was a big shortage of psychiatrists to do basic treatment, that the number of people that needed psychiatric treatment was a real problem.  The military was looking for psychiatrists to help out with treatment.


LONG:  Did that make them more willing to say, you can follow these guidelines.


ZONANA:  I wasn’t sitting in on their meetings that resulted in their policy.  That was my impression from the discussion.


ARRIGO:  Well, there was a shortage of psychologists, too, Jancis.  Maybe the military just needed one or the other of us. 


ZONANA:  This was just part of this discussion.  This was just, you see, a position statement.  It was not an ethical guideline.  For whatever distinctions those make, at a certain point, especially when you’re making a complaint, it obviously makes a distinction.   A violation of Ethical Guidelines can form the basis for an ethical complaint to the APA or to a medical licensure board.  A violation of a position statement does not necessarily reach that level.


LONG:  One of the things that we’re very interested in is what happens when you get the position statement or the ethical guideline, how that gets translated in the field to individuals, whether they are given different work or —


ZONANA: With military psychiatrists that I’ve spoken to, they are very grateful to have a guideline like this, because that gives them an ability to say that they would be violating ApA policy or ApA ethics, if torture were involved.  A clear position statement from the ApA carries weight.


ARRIGO:  What about psychiatrists who aren’t members of the ApA?  What’s their relationship to all this? 


ZONANA:  Well, there’ve been a number of legal cases — What that does, on a practical level, if you’re not a member of the ApA, then an ethical complaint against you can’t be made within the ApA.  An ethical complaint could only be made to the licensure board in the state where you work.


ARRIGO:  And are military psychiatrists members of the ApA?


ZONANA:  Sure.  I doubt all of them are, but there are certainly a good number.  All the ones that I’ve spoken to have said that it’s very helpful to them to have guidelines.  I mean, that’s why you write guidelines, especially around things like the death penalty, where physicians get called in by states to attend at executions.  It sometimes, although not always — as a recent North Carolina Supreme Court decision illustrated4 — offers state physicians some protection from being forced to do things that they otherwise would not want to do.


ARRIGO:  Well, military or military-contracted psychologists would not be all so pleased if we had regulations like yours.  There’s a great deal of lobbying for funds, inserting ourselves into Homeland Security projects, and so on.  And we have sort of free-standing institutes that do military research.  You don’t have this in psychiatry?


ZONANA:  Oh, sure.  As I said, Dr. Morgan does research, and things like that, so there are people doing research.  I think, as always, there are counterarguments for some of these things.  The strongest argument that the military made was that they have people who come in to do interrogations who are often in their early 20s who have no, or hardly any, background or education in interviewing.  Having a seasoned psychiatrist to tell them how to do an interview is very useful and something that they value.  So I think that that was the countervailing argument.  The stronger argument that seemed to be persuasive to a lot of people was that interrogations are nonvoluntary interactions.  If somebody wanted to talk, you wouldn’t need an interrogation.  And law enforcement and other people can and do lie to the people that they’re questioning.  So the whole issue of psychiatrists getting into deceptive positions with people was unacceptable to most of us, I think that argument carried very strongly in making people feel that interrogations were not something that we should be doing. 


ARRIGO:  That’s a very interesting argument about interrogators being very young and so on.  The senior interrogators [I know] who object to torture have complained that what is needed isn’t psychiatrists and psychologists on site to bolster the young interrogators but actually training and mentorship [from senior interrogators] to begin with, according to the ways interrogators have always done it.  So it’s interesting that [the military] ran that argument on you.


ZONANA:  There are different arguments that come from different sources.  If you remember those reports that came out from those commissions that looked at Abu Ghraib, some of the military people said, “Well, we had psychologists and they passed on everything that we did,” saying it was okay.  So they used it as sort of a cover.


LONG:  Did the statement that you made in 2005, did that prevent you from training the new, young interrogators.


ZONANA:  No, as I said, if it was general training, without being involved in any specific detainee interrogation, this statement is silent on this issue.


ARRIGO:  I wanted to ask about the dual roles, because the military psychiatrist I had talked to confidentially, who may possibly have been behind the times on this topic, said it is so important whether the psychiatrist is in the clinical chain of command or the regular chain of command.  These strictures only apply to the clinical chain of command and a person could go from the clinical chain of command to the regular chain just by moving to a different facility.


ZONANA:  Well, I’m not an expert on this.  I just know that for psychiatrists, as well as for anyone else, there is not what I regard as a totally separate chain of command.  If your commanding officer says to do something, you are in that chain of command, and you have to be careful about how your respond to that.  This comes up across the board when the commanding officer wants somebody to be in the hospital or feels somebody should be.  You have to be careful about how you respond to that and deal with that. 


ARRIGO:  But you’re not recognizing dual roles in your —


ZONANA:  There have been different dual roles that have been described.  Some people have tried to say, “Well, it’s a forensic role,” that there’s no patient relationship, so the usual patient ethics don’t apply.  I don’t buy that as an acceptable forensic role, because in any proceeding, or quasi-legal proceeding, you don’t see someone who is potentially going to be charged, or something like that, without them having representation.  It’s unethical to do so.  I’ve heard that argument, but I don’t think that gets you out of the box.


ARRIGO:  What about psychiatrists that don’t treat patients.  I presume you have some psychiatrists, like we have psychologists, who are just doing research or something else.  Would you conceive this as binding upon them to —


ZONANA:  This covers across the board, I think.  We don’t make the same kind of distinction.  Even though psychiatrists do research, we don’t regard people in these situations as doing research—  I mean, they have a license to practice medicine and therefore come under this.


ARRIGO:  Well, maybe we should come to Ted’s point about what process you have for pursuing in some way the psychiatrist who is found to have been involved in torture. 


ZONANA:  I did a couple of things.  You have, and I believe you circulated, the ApA Principles of Medical Ethics for the Psychiatric Association,5 which goes through what the procedures are.  When I read it, with your case in mind, I see, too — and I don’t know if I’m right about yours — I don’t see in ours either there is any time frame from the submission of a complaint to when you have to give a response.  I don’t see one in yours and I don’t see one in ours.  Am I correct in that?


STRAUSS:  Yes, I don’t think the [APA] Ethics Committee has been given an explicit time limit before they have to respond or pursue any action.  But people making the complaints have a time limit for when they are permitted to submit the complaints from the time of the—


ZONANA:  Right.  That’s like a statute of limitations.  Like ours has ten years from the alleged conduct.  Some ethical guidelines, like licensure boards, don’t always have any limitation, so that varies.  And, as you see, we have either a written complaint like you do, that you can’t just do it in an article or on a phone call; you have to submit something.  I saw that was an issue in one of your cases. 


ARRIGO:  There was material that had been faxed, and that was not accepted. 


ZONANA:  Each group works out its own procedures.  We have a distinction that I didn’t see in yours about extrinsic evidence versus a complaint.  Extrinsic evidence can serve as sufficient stimulus to either investigate or proceed. I don’t know if that’s particularly germane to your area.


STRAUSS: Are there cases at the ApA that are pertinent to —


ZONANA:  Well, I wrote to the chair of the ApA Ethics Committee and asked if they had received any complaints or adjudicated any cases in relation to this, and they said no, they had not received any complaints in this area yet. 


ARRIGO:  The elderly military psychiatrist I had talked to said there certainly were cases that were known of people working in the area but that this person very much doubted that they would come to light. 


ZONANA:  There are all the medical ones where people were monitoring people and starting IVs [intravenous] and doing all these other things that are potentially problematic. 

It seems to me that your APA is struggling a good bit with this.  There was this interesting site that has a timeline of polices and actions related to detainee welfare and professional ethics.6  And you had just last month a letter from the Board of Directors about this.7 They said that there were psychologists who were not following these kinds of things was coming out and that they were going to pursue ethics complaints about them.


ARRIGO:  Well, the way things have happened with APA is that, from the beginning, they took a strong stand, which was to accommodate the Bush Administration interrogation policy — sort of euphemistically but a very firm stand.  Various factions of the membership have mounted challenges against them.  With these challenges they move a little further [against accommodation of psychologists’ involvement in abusive interrogations], usually with more platitudes.  The most striking example of this was — the date of the Referendum, Jancis, help me with this.


LONG:  Oh, last September we had the Referendum, which was forbidding psychologists from being in places where detainees were held outside of international law.


ARRIGO:  This passed against the objections of the [APA] Board [of Directors], and the Board has then said, “Well, we’ll have a committee to implement it,” and has now basically said, “That’s a position that passed, but it’s not enforceable.”  So this is the sort of thing that we’re struggling with.


ZONANA:  I saw these recent policies about no defense to torture under the APA Ethics Code because they had this exception that if there was law, then you could follow the law.


ARRIGO:  Section 1.02 [See Appendix B]. Yes, the dissidents call that the Nuremberg Defense.


LONG:  The Ethics Committee recently upheld that, even though it’s been open to question and comment on the APA website for several months, as though they were going to consider changing it.  But as I understand it, very recently, in the last two weeks, the Ethics Committee, which is not the whole Board, of course, said that they were not going to consider changing 1.02.


ZONANA:  That seems to be in contradiction to what this June 2009 Ethics Committee statement says.  [Overlapping talk with Long.]  — the ethical principles, and it specifically references 1.02 and 1.03. 


ARRIGO:  They announce very loudly that we will not countenance torture in any form but the regulations are made so that psychologists can actually participate.


STRAUSS:  Specifically, the individual, John Leso, even though these letters are issued, they have never acted on that case.  So if they claim they won’t countenance torture, the simplest way to follow through would be to pursue the complaints that were made.  The earliest one was accepted as an official ethics complaint, I think, more than three years ago.  So, while they send these letters out that they will not accept these actions, they still haven’t acted on those claims that they’re making.  For us, that’s a key contradiction there.


ZONANA:  But they also did pass this resolution in February 2008 spelling out what is cruel, inhuman, degrading treatment, and things like that [see Appendix C].


LONG:  That February 2008 statement that came out did finally appear to be reasonably satisfactory, in terms of what the statement said, but is has consistently not been backed up with either changes in the Ethics Committee or by any cases, like the Leso case, in which they have followed up on not countenancing this kind of thing.  The February 2008 statement should be enough to make psychologists’ position clear as to what they should or shouldn’t do.


ZONANA:  I take it that would drive an Ethics Committee: “Well, you passed that statement in 2008.  But if these guys did things back in 2004, what was the operating principle?” 


STRAUSS:  Dr. Zonana, I’m wondering if, since the statement was made by the ApA and there was a change of policy by the military, would you say there were any other repercussions felt within the Psychiatric Association?  Or since then are there any other notable events?


ZONANA:  No.  I think the main notable event that followed was, would the AMA support that position?  There were people on both sides of that issue as well, but the AMA did pass a statement8 that is in essential agreement with the ApA position.  That was hotly debated at the AMA.  I was there, and the military people were there, and there was a good discussion.9


ARRIGO:  I’m reading in your ethics code about making complaints and about sanctions as “reprimand,” “suspension,” and “expulsion.”  I’d like to have some understanding of those.  As I said, the military psychiatrist I had talked to said there was a problem whenever a psychiatrist or doctor came up for renewal of malpractice insurance, that they would have to state whether there were any ethics complaints against them.  Even if unproven at that point, it was likely to raise their premiums considerably.  Do you have a sense of that?


ZONANA:  I don’t have any data on that, so I couldn’t tell you how common or widespread that is.  There are handfuls of cases, and I just don’t know enough. 


ARRIGO:  Do have any psychiatrists who went through medical school and did their training on military scholarships? 


ZONANA:  We’ve had a number in our program, because some come for advanced training after have been trained in the military.  We had one person this past year.


ARRIGO:  What we hear is that psychologists who’ve gone through this course [of military scholarships] then owe and so-and-so-many years of service and if they don’t pretty much do what they’re told they could have to pay all that money back.


ZONANA:  I don’t think it’s quite one-to-one, if you don’t do what you’re told.  There are ways to raise concerns.  It looked like when you got into this kind of stuff that’s been released that people like Michael Gelles did raise major concerns about what was going on and got some response from people in the middle of all that.  There was certainly not any uniformity of agreement about these policies, and there were a number of people who were very much opposed to it.   This is a big bureaucracy and, like any bureaucracy, there’s no simple one line.


STRAUSS:  When I heard you give a summary of the guidelines, it sounded very similar to the language of a bill that was proposed in New York State in the last two years by Assemblyman Richard Gottfried.10  The bill, if passed, would give the authorities of the state the ability to regulate health professionals broadly in case of abuse and certain detainee treatments.


ZONANA:  There was also one in California.11


STRAUSS:  That’s right, California and also Massachusetts.  California passed that kind of resolution but it was more symbolic,12 and I think they’re trying now for one that has more teeth.  This bill in New York would give the authorities in the state the ability to de-license somebody if they were found to have mistreated a detainee.  Given that the guidelines your committee came up with are similar, do you think that’s something the ApA would consider reviewing and perhaps endorsing?  A lot of New York State associations already have given endorsements to that, that your committee would possible review.


ZONANA:  I don’t know as our committee has reviewed any of that legislation— People pick up our policy; and district branches are free to comment about it being ApA policy.


STRAUSS:  If the law passes in a number of states, it starts to definitely affect, you know, professional practice of any psychiatrist working in a prison, for instance.


ZONANA:  We spend a lot of time on that, too, because there are obviously implications for psychiatrists working in prison settings about what you’re doing and how to think through that issue. 


STRAUSS:  So maybe some time in the future I could send you an e-mail with a copy of this bill.  It got pretty far in New York State this year, but then there was this mishap in the Senate you might have heard about, so it will be reintroduced next year.  I work with a group of people in New York.


ZONANA:  I’m sure this was a very difficult situation for docs, for instance, who were just assigned to BSCTs [Behavioral Science Consultation Teams] in the beginning and who were probably told, “This is legal, this is not torture,” and probably have Attorney General letters supporting all that.  What’s a military person supposed to do in the face of that? 


STRAUSS:  I’ve read this particular transcript of a guard at Fort Guantanamo talking about some of the things the doctors were doing. And it seems from those transcripts that they were taking a few more liberties and really relishing some of that power that was given to them.


ZONANA:  Well, obviously people got involved.  I’m just trying to think what goes into that kind of thing.  In the Zimbardo studies, guards and people like that, fell into roles of abuse quickly when there was not a lot of training. 


STRAUSS:  I think regulations are needed to try to protect against the ease with which people can abuse other people, especially when they’re told by their authorities that it’s the role that they should be taking.


ZONANA:  Yes, and that it’s in the national interest, and terrible things will happen if we don’t get information.  All that gets very pressured. 


ARRIGO:  With psychologists, we haven’t just been seeing the kind of situational pressures on employees that you’re talking about. What we’ve seen also is an entrepreneurial spirit, as in the case of [James] Mitchell and [Bruce] Jessen, or in people applying to Homeland Security.


ZONANA:  Yes, it certainly seems like some of those psychological consultants from the SERE program seemed interested in developing these kinds of things.


ARRIGO:  So you don’t see that same kind of entrepreneurial activity among psychiatrists?


ZONANA:  I have not, no.  I’m not aware of that.


LONG:  I wonder, have you seen any instances of psychiatrists or medical doctors reporting any unethical behavior in the course of their work in places where there are detainees?


ZONANA:  The military is usually pretty silent on the handling of that stuff.  I don’t have first-hand information.  Gregg Bloche did a lot of interviewing of people who had been over there and published that, but I don’t know much beyond that.


LONG:  It seems to me that this is the crux of the whole thing.  We gradually get the principles and codes saying pretty well the right thing, but that actually it’s a pretty weak part of the ethics and the law if they get reported, and if they get reported what happens to the report, and what happens to the person who reported them.  This is where it feels like medical ethics really come into a clash with military ethics, which is to, in a sense, support the group over the individual.


ZONANA:  All I can say is that the individual docs I talked to were very grateful to have these because it gives them a way of dealing with those situations—


LONG:  They’re glad to have these, which is a sense to say that they will or have used such guidelines to refuse orders to do things.


ZONANA:  Right.  And the military is sensitive to that, because they say that they’re not going to ask physicians to violate their medical ethics. 


ARRIGO:  I know there’s a long tradition of competition between psychiatrists and psychologists.  But would you say that in the matter of these “enhanced interrogations” just eliminating psychiatrists and leaving them in the hands of psychologists would have any effect on the nature of interrogations?  Is the military missing anything if the psychiatrists drop out, if they have psychologists?


ZONANA:   I don’t know.  I would obviously prefer to think that the professions would act in concert on this.  It would make a stronger statement.  But obviously people have different views on these things.  It’s hard to know what the overall effect is or how it plays out in the hierarchy in the military, whether it makes people reluctant to assign people to duties if somebody else might be willing — I have no idea.


ARRIGO:  Could you imagine any institutional mechanism by which APA and ApA might cooperate.  At the time of our [PENS task force] meeting in June 2005, I was in contact with Matt Wynia, who is the Director of the AMA Institute for Ethics.  They were considering various observers [to the task force meeting] and I asked if Matt Wynia could be present [for telephone consultation].13 My request wasn’t denied; it was completely ignored.


ZONANA:  Well, how the politics work in your organization and what you’ve got to do to get things done, those are always — There are formal and informal way to do things, and I certainly have no idea what works in your APA.  If have a better idea what works in ours, but that’s not helpful to you.


LONG:  I’m not sure that it wouldn’t be helpful.  I’d be very interested in some ways in which it does work in yours. 


ZONANA:  From an ethical point of view, I’ve always felt that it makes a great deal of difference what the ethos of the organization is.  It’s sort of like, if the head of the department or the chief resident is not interested in this, then it’s harder to get it on the front burner.  If they are interested, then there are ways to have messages go up.  Some institutions have put ombudsmen in that allow people just to come in and say:  “I think this is going on.  I think something needs to be done about it.”  There are lots of ways you can have big institutions develop mechanisms to allow people who are concerned about certain activities to get them on the table without jeopardizing their own careers and things like that. 


ARRIGO:  Could you imagine, for instance, how the ApA and APA could have negotiated around this before —


ZONANA:  We spent a lot of time with people on the APA, so I don’t know whether —  At that time, as I mentioned, there were a number of people who were involved in our discussions.  And your group just came out with a different policy. 


ARRIGO:  If the people who were involved in the discussion were Michael Gelles and Steven Behnke, they were basically in complete support of the policy we came out with.


ZONANA:  Right.  So that depends on more than how you get set up and who gets put on committees.  I know there was a backlash about that and some concern for a number of people.  But these are complicated questions.  There are arguments to be made on both sides.  It’s not a simple process.  And it does take a process to come up with a policy.

Once a group like that presents a policy, a board has to approve it.  Whether you also have anything like an assembly, like we do, that also reviews it, I just don’t know how your organization works.


ARRIGO:  It was supposed to go through the assembly, which we call the Council of Representatives, but the Board [of Directors] actually approved it on an emergency basis.  It never went to the Council of Representatives.  The PR [public relations] people for APA published twice that it had [S Soldz, REF needed].  So there was a little, we would say, sleight of hand there, of not following our process.  I think our process looks pretty good on paper, but we didn’t follow it. 

But I am interested to know whether there is any kind of opening through which the two associations could —


ZONANA:  Well, I’m not comfortable getting into tactical questions for your organization.


ARRIGO:  Okay.  That’s fine.

I think we’re coming to the close now.  Can we have last questions?  Let’s go in this order:  Jancis, Ted. me.


LONG:  I would like to ask two questions.  One of them is, I was wondering if you have any reactions particularly to Steven Miles’s book, Oath Betrayed,14 talking about the doctors not reporting from the field matters that were clearly involved in the doing of harm?


ZONANA:  He’s come and spoke here and I’ve talked with him about some of this stuff.  All I’m saying is that in a bureaucracy like that it’s very difficult to get whistle blowers.  You put your career on the line and it’s—


LONG:  Well, this, I think, is absolutely key to our issue, what can happen.  If we’re going to reform any piece of this, finding a way to allow to whistle blowing without damage to the whistle blower.


ZONANA:  It’s always difficult, whether it’s reporting an individual doc, who you know—


LONG:  It’s very difficult in domestic prisons.  There’s very much a sense of protecting the people who are having a very hard life on the job in deprived places.


STRAUSS:  The Gottfried legislation in New York State has specific whistle blower protection provisions.  So I’ll just throw that out.


ZONANA:  But even if there’s protection, it’s psychologically difficult.  You know, you’re trying to get your friends to resign or something else if they’re incapacitated or getting into trouble. 

Why do you guys think that the [APA] Ethics Committee has not acted?


LONG:  I have one answer, but I don’t think it’s the whole answer.  I think the APA has a very sensitive and important relationship to the military and would much rather leave things not spelled out clearly so as to allow for loopholes.  Now this is a hypothesis.  But that is my answer to your question about the ethical guidelines.  It doesn’t go on completely to this business of whistle blowing.  Why they haven’t acted in three or four years to make Casebook, which they’ve been promising for three or four years —


ZONANA:  Well, I know that politically it’s difficult.  You read the front page of the New York Times and  [Attorney General] Eric Holder is having to deal with the same issue, whether to prosecute CIA or other people for doing this, and the tensions and the pressures that he’s under.  It sounds very similar to me in some ways.


ARRIGO:  Our history is a big part of this.  Psychology really grew up with the U.S. military, in World War I, when we did testing of millions of recruits, and in World War II, when we were able to handle group dynamics and morale —


ZONANA:  and all the guidelines around training that came from that.


ARRIGO:  Yes.  And then following World War II, psychology just went on ahead doing lots of research, setting up research institutes and so on.  So the military and APA are very tightly hand-in-hand.  Another thing is that when clinical psychologists are trained they have to do 2000 or some huge number of hours of supervised practice.  Most of these positions are unpaid.  A very large percentage of these people go into the VA or the military for their internships.  And a lot of people of are hired — the Iraq War has been an absolute bonanza for psychologists.  I think we have more of a financial relationship with the military, maybe more like medicine experiences with the drug companies.  One thing that clinicians want very much is prescription privileges, and the military ran a first pilot program on psychologists having prescription privileges, and is sort of a friend of psychologists having prescription privileges.  So our financial well being is very much integrated with military activities. 


ZONANA:  It’s not clear, especially if there have been specific complaints filed.  As our guidelines say, you’d have to say you’re not going to take or you are going to hear the case, or for some reason, or you go ahead and investigate.


ARRIGO:  But, as you said, there wasn’t any timeline on yours either.   Ted, they haven’t actually said they aren’t going to investigate anything, have they? 


STRAUSS:  They’ve said that they’ve accepted the complaints as valid and they will then follow them according to their guidelines.  The guidelines also say that once the complaint’s been accepted that everything is confidential.


ZONANA:  Confidential, right. 


STRAUSS:  So whether they even are investigating would be confidential.  And whether they’re even holding an adjudication, that would also be confidential. 


ZONANA:  And if they make a finding, does that become public then?


STRAUSS:  The specifics, no.  If somebody is censured or expelled, that becomes known, but the details of the case are always confidential.  But there’s an annual summary of the number of cases that were accepted and reviewed and adjudicated.  That much is public.


ARRIGO:  Well, we are at the end of our time now unless someone has some closing remark. 


STRAUSS:  I had just a brief question.  In the meetings during which Steven Behnke and Michael Gelles were present, do you have a general impressions about what their roles were and their general positions in those meetings? 


ZONANA:  I’m not sure, at this point, I can recall well enough from four or five years ago.  I think they were mostly doing at that point civilian stuff, and that did not seem to be fraught with the same kind of stuff that later came out with the detainees.


STRAUSS:  Thank you. 


ARRIGO:   Dr. Zonana, we’re enormously grateful for this insight into ApA process.


[Thanks and farewells.]



--------------------------

1 Zonana, Howard V.  (1997).   Legal regulation of psychiatric practice in the military.  In G.R. Lane & D.T. Armitage, Principles and practice of military forensic psychiatry, Chapter 18.  Springfield, IL:  Thomas.

2 The matter of espionage:  Intelligence in the modern world.  (1999, February 26-27).  Whitney Humanities Center, Yale University, New Haven, CT.— Symposium sponsored by Yale University, with many speakers from the CIA, including former Director of Central Intelligence John M. Deutch.

3 SERE (Survival, Evasion, Resistance, and Escape) training for U.S. military personnel with sensitive information who are vulnerable to enemy capture, such as pilots and Special Forces.  Various forms of torture are realistically simulated to train personnel in resistance and counterinterrogation techniques.

4 North Carolina Dept. of Correction; v. North Carolina Medical Board, 675 S.E.2d 641 (2008).

5 American Psychiatric Association.  (2009).  Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry (Revised edition).  [Available:  http://www.psych.org/MainMenu/PsychiatricPractice/Ethics/ResourcesStandards/PrinciplesofMedicalEthics.aspx].  Author.

6 American Psychological Association.  (2009).  Timeline of APA Policies & Actions
Related to Detainee Welfare and Professional Ethics
in the Context of Interrogation and National Security.  Media information.  APA Online. [Available:  http://www.apa.org/releases/timeline.html].

7 American Psychological Association Board of Directors.  (2009, June 18).  An open letter from the Board of Directors.  [Available at the APA website: http://www.apa.org/releases/open-letter-membership.pdf].

8 American Medical Association.  (2006).  Opinion 2.068, Physician participation in interrogation.

Code of Medical Ethics. Chicago, IL: American Medical Association.  [Available:  http://www.amaassn.org/ama1/pub/upload/mm/475/cejo4i06.doc].

9 Transcriptionist’s further question to Dr. Zonana:   “Did the military physicians bring any arguments for participation other than analogues to the forensic and interrogator-training arguments you mentioned above?”  Reply:   “I don’t recall any.”

10 New York State Assembly Bill A06665B:  Prohibits participation in torture and improper treatment of prisoners by health care professional; prohibits a health care professional from engaging, assisting, planning the torture or improper treatment of a prisoner; requires health care professionals to report torture and improper treatment.  [Available August 15, 2009, at http://assembly.state.ny.us/leg/?bn=A06665].

11 California State Resolution on Health Professionals’ Participation in Torture (SJR 19).  (2008).   Official California Legislative Information [On-line.  http://www.leginfo.ca.gov/cgi-bin/postquery]. 

12 At an earlier hearing, Stephen Behnke, Director of the APA Ethics Office, largely represented the California Psychological Association, which led to a weakening of the original bill, according to Jean Maria Arrigo, who also testified at the hearing. —

Arrigo, J.M. (2008, January 14). Testimony to the California State Senate Committee on Business Professions and Economic Development Committee Hearing on the Ridley-Thomas Resolution on Health Professionals Participation in Torture, SJR 19.

13 Arrigo, J.M. (2005, June 6).   E-mail message in:  Arrigo, J.M.  (2006).  APA PENS listserv correspondence, April 2005 – March 2006.  Records of the APA PENS Debate, Intelligence Ethics Collection,  Hoover Institution Archives, Stanford University.

14 Miles, Steven H.  (2005).  Oath betrayed:  Military medicine and the war on terror.  New York:  Random House.

 


Appendix A


The American Psychiatric Association • 1000 Wilson Blvd., Suite 1925 • Arlington, VA 22209-3901

Telephone: (703) 907-7300 • Fax: (703) 907-1085 • Email: apa@psych.org


Psychiatric Participation in Interrogation* of Detainees


POSITION STATEMENT

Approved by the Board of Trustees, May 2006

Approved by the Assembly of District Branches, May 2006

"Policy documents are approved by the APA Assembly and

Board of Trustees… These are …position statements that

define APA official policy on specific subjects…" – APA


Operations Manual.

1. The American Psychiatric Association reiterates its position that

psychiatrists should not participate in, or otherwise assist or facilitate,

the commission of torture of any person. Psychiatrists who become

aware that torture has occurred, is occurring, or has been planned must

report it promptly to a person or persons in a position to take corrective

action.

2. a) Every person in military or civilian detention, whether in the United

States or elsewhere, is entitled to appropriate medical care under

domestic and international humanitarian law. b) Psychiatrists providing

medical care to individual detainees owe their primary obligation to the

well-being of their patients, including advocating for their patients, and

should not participate or assist in any way, whether directly or indirectly,

overtly or covertly, in the interrogation of their patients on behalf of

military or civilian agencies or law enforcement authorities. c)

Psychiatrists should not disclose any part of the medical records of any

patient, or information derived from the treatment relationship, to

persons conducting interrogation of the detainee. d) This paragraph is

not meant to preclude treating psychiatrists who become aware that the

detainee may pose a significant threat of harm to him/herself or to others

from ascertaining the nature and the seriousness of the threat or from

notifying appropriate authorities of that threat, consistent with the

obligations applicable to other treatment relationships.

3. No psychiatrist should participate directly in the interrogation of

persons held in custody by military or civilian investigative or law

enforcement authorities, whether in the United States or elsewhere.

Direct participation includes being present in the interrogation room,

asking or suggesting questions, or advising authorities on the use of

specific techniques of interrogation with particular detainees. However,

psychiatrists may provide training to military or civilian investigative or

law enforcement personnel on recognizing and responding to persons

with mental illnesses, on the possible medical and psychological effects

of particular techniques and conditions of interrogation, and on other

areas within their professional expertise.

__________

*As used in this statement, “interrogation” refers to a deliberate attempt

to elicit information from a detainee for the purposes of incriminating the

detainee, identifying other persons who have committed or may be

planning to commit acts of violence or other crimes, or otherwise

obtaining information that is believed to be of value for criminal justice or

national security purposes. It does not include interviews or other

interactions with a detainee that have been appropriately authorized by a

court or by counsel for the detainee or that are conducted by or on

behalf of correctional authorities with a prisoner serving a criminal

sentence.


See also the September 12, 2008, letter from ApA President Nada  L. Stotland to Secretary of Defense Robert Gates at

http://www.jlc.org/files/briefs/khadr/APALetterSecGates.pdf


Appendix B


Excerpt from


American Psychological Association Ethics Office.   (2009).  Provisions in the APA Ethics Codes that address conflicts between ethics and law:  A history.  APA Online [http://www.apa.org/ethics/standard-102/provisions-codes.html].



2002 Ethics Code


Introduction and Applicability (paragraph 7) (aspirational)


"If this Ethics Code establishes a higher standard of conduct than is required by law, psychologists must meet the higher ethical standard. If psychologists' ethical responsibilities conflict with law, regulations, or other governing legal authority, psychologists make known their commitment to this Ethics Code and take steps to resolve the conflict in a responsible manner. If the conflict is unresolvable via such means, psychologists may adhere to the requirements of the law, regulations, or other governing authority in keeping with basic principles of human rights."


1.02 Conflicts Between Ethics and Law, Regulations, or Other Governing Legal Authority (enforceable)


"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. If the conflict is unresolvable via such means, psychologists may adhere to the requirements of the law, regulations, or other governing authority."


Appendix C


American Psychological Association.  (2008, February 22).  Amendment to the 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."  APA Online [http://www.apa.org/governance/resolutions/amend022208.html].



Resolution Adopted by APA on

February 22, 2008


Amendment to the 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"


Council voted to rescind the following paragraph of the Resolution on the 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" previously passed at its August 2007 meeting:


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 voted to replace the rescinded paragraph with the following 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 techniques at any time and may not enlist others to employ these techniques in order to circumvent this resolution's prohibition.