Index Manuals REPORT TO THE SPECIAL COMMITTEE OF THE BOARD OF DIRECTORS OF THE AMERICAN PSYCHOLOGICAL ASSOCIATION (2015)
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“research should be designed to minimize risks to research participants,” even if the
research was observational or to examine archived data.1255
Second email draft language:
Psychologists support research to evaluate the efficacy of methods for gathering
accurate and reliable information relevant to national security. Such research
should be designed to minimize the risk/benefit ratio and emotional/physical harm
to the research participants consistent with existing standards of human subjects
research and APA ethics code.
Because disclosing the results of such research could compromise the
development of enhanced sources and methods, it may not always serve the
national interest to explain deception used in the research design or to include the
debriefing standards contained in 8.07 and 8.08.1256
x
The new paragraph suggests that debriefing could be discarded if the “national interest”
was strong enough. The final report does not make this claim, but in its conclusion
section, it does note the “tension between conducting research that is classified or whose
success could be compromised if the research purpose and/or methodology become
known and ethical standards that require debriefing after participation in a study as a
research subject.”1257
The new paragraph also makes note of “enhanced sources and
methods” without any explanation of what those are.
o Breckler told Sidley that this paragraph in the final report, though poorly
worded, likely related to research being conducted at Department of
Homeland Security Centers of Excellence and having psychologists involved
in those studies that included research on deception and interrogations. He
added that the issue of debriefing in classified settings was subject of much
debate, so that was why the “tension” language was added here.1258
x
Mumford thought that the new paragraph came from someone with a “national security
interest” and speculated that Fein may have suggested this since he was the research
expert. Mumford also told Sidley that he interacted most with Shumate at the time, but
thought it unlikely that Shumate would have offered this language.1259
o But Mumford may have had more of a direct role in drafting these two
paragraphs based on a message he sent earlier to Behnke, Breckler, and Kelly.
1255 Behnke interview (June 8, 2015).
1256 APA_0029691; APA_0029692.
1257 PENS Report.
1258 Breckler interview (June 18, 2015).
1259 Mumford interview (May 18, 2015).
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On May 23, 2005, Mumford emailed the three and used the “risk/benefit”
language and queried whether “all coercive techniques should be discredited,”
or if there were techniques available “that would pass some risk/benefit
test?”1260
Mumford then stated that “behavioral scientists get away with using
deception/coercion all the time in research with the understanding that
participants are later debriefed as to the true nature of the research. . . couldn't
it be argued that the application of those techniques (sans debriefing) in
national security settings are justified?”1261
x
This paragraph in particular suggests that research on detainees could have been
envisioned at some point by someone associated with the task force. It is hard to explain
why the “national interest” would be a factor in research conducted in a lab or other
closed setting; the language seems more likely to relate to questioning people and not
revealing what one’s research intentions were.
o Mumford later suggested to Sidley that the research paragraph may have
envisioned something like the Transportation Security Authority’s Screening
Passengers by Observation Techniques (“SPOT”) program,1262 a type of
behavioral detection program that has been met with controversy.1263 The
TSA SPOT program, however, did not exist until January 2006;1264 it is
possible that a program like that was envisioned at the time, however. Also,
as mentioned above, Breckler suggested that DHS Centers of Excellence were
envisioned when discussing research opportunities for psychologists in
national security settings.
x
Brandon told Sidley that the new paragraph appeared to have come from someone
involved in the counterintelligence community, perhaps Shumate or Gravitz.1265 She
stated that it sounded like a clinician without much experience in research wrote the
language since a psychologist always needed to debrief a research subject.1266
1260 APA_0025671.
1261 Id. (ellipses in original).
1262 Privacy Impact Assessment Update for the Screening of Passengers by Observation Techniques
Program, Department of Homeland Security (Aug. 5, 2011), available at
Mumford to Sidley (May 20, 2015).
1263 Josh Hicks, ACLU Sues for Details of TSA’s Controversial ‘Behavioral Detection’ Program,
eye/wp/2015/03/20/aclu-sues-for-details-of-tsas-controversial-behavioral-detection-program/.
1264 Sharon Weinberger, Airport security: Intent to Deceive?, Nature (May 26, 2010), available at
1265 Brandon interview (May 26, 2015).
1266 Id.
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Third email draft language (email subject notes that Gravitz and Newman provided input):
Psychologists have the obligation to utilize psychological knowledge derived from
recognized authoritative sources ( e.g. research, experience to inform
professional judgement [sic]) in the furtherance of their scientific and
professional activities. (e.g. efficacy of using positive reinforcement vs. negative
reinforcement).
Psychologists support research to evaluate the efficacy of methods for gathering
accurate and reliable information. Such research should be designed to minimize
the risk/benefit ratio and emotional/physical distress to research participants
consistent with existing standards of human subjects research protections and
APA ethics code.
Because disclosing the results of such research in certain contexts could
compromise the development of enhanced sources and methods, it may not always
serve the interests of national security to explain deception used in the research
design or to include the debriefing standards contained in 8.07 and 8.08.1267
x
The new introductory paragraph underscores the “obligation” psychologists have to use
all “authoritative sources” to further their activities. This paragraph does not appear in
the final report, though a conclusion paragraph under Statement Twelve contains
language states psychologists “should encourage and engage in further research to
evaluate and enhance the efficacy and effectiveness of the application of psychological
science to issues, concerns and operations relevant to national security.”1268 Mumford
remarked to Sidley that this draft paragraph reflected the emphasis the practice
community (as opposed to the research community) placed on professional judgment.1269
x
The final report paragraph also states the need to be aware of cultural differences and its
impact on what information-gathering methods were cruel, inhuman, or degrading
(“CID”) treatment (Statement Twelve, fourth bullet). This sentence could be read as
weighing cultural differences in defining what might be “cruel, inhuman, or degrading”
in one culture versus another. For example, if it was believed that a detainee from Saudi
Arabia would consider only a ‘high-level” of harsh techniques degrading, then an
interrogator would be permitted to use other “low-level” harsh techniques for that Saudi
detainee.
o Brandon believed she may helped write the full paragraph but that the cultural
differences point was poorly worded in retrospect.1270 The sentence was
supposed to convey the need to be respectful to other cultural backgrounds,
1267 Mumford Notes (June 25, 2006) (on file with Sidley).
1268 PENS Report.
1269 Mumford interview (May 18, 2015).
1270 Brandon interview (May 26, 2015).
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not imply that what was considered cruel was relative to a detainee’s cultural
background.1271
o Behnke told Sidley that wished he would have included a clause to clarify that
cultural differences in “cruel, inhuman, or degrading” meant a technique was
not cruel in either the detainee’s or the interrogator’s culture.1272
He
explained that any potential concern, however, would be removed when
reading the second bullet point under Statement Seven of the report, which
links safety and efficacy to cultural understanding (“How failures to
understand aspects of individuals’ culture and ethnicity may generate
misunderstandings, compromise the efficacy and hence the safety of
investigatory processes, and result in significant mental and physical harm.”).
Behnke argued that safety and efficacy were linked, and that he relied on
Banks’s comments on the PENS listserv about how using SERE techniques
and gathering accurate information were “diametrically opposed” with one
another.1273
Brandon, Behnke, Breckler, Mumford and others at APA have told Sidley that, despite
these draft statements and ambiguous/poorly drafted PENS report language, research on
detainees were never discussed or pushed by task force members or outside entities.1274 Brandon
also stated that when she first joined the High-Value Interrogation Group (“HIG”) in 2009, one
of the first things she inquired about was whether any government agencies had conduced
research on detainees; she found no records.1275
Yet in one of Behnke’s handwritten set of notes, likely from the second day of the PENS
meetings,1276 he noted two instances of detainee research—on the first page of notes, Behnke
wrote “detainees as research subjects;” on the last page, Behnke wrote “research a
detainees?”1277
The second note is crossed out by two dotted “X” marks. These notes do not
appear in either Arrigo’s or Brandon’s set of notes, implying that these thoughts arose from side-
conversations Behnke had or thoughts he had himself. Behnke could not recall why he wrote
those notes but insisted that these topics were not discussed during the PENS meetings.1278 In
addition, interviews with government officials revealed a strong awareness after September 11
1271 Id.
1272 Behnke interview (June 8, 2015).
1273 PENS listserv (May 23, 2005).
1274 Brandon interview (May 26, 2015).
1275 Id.
1276 HC00017705. The notes are undated, but they are not from the first day since we located Behnke’s
typed set of notes from that day. Some of the comments in this handwritten set also appear on Arrigo’s
set of notes from the second day leading us to conclude they are at least, in part, from the second day of
PENS meetings.
1277 Id.
1278 Behnke interviews (May 22, 2015 & May 29, 2015).
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about the possibility of gathering data on detainees and the debates that ensued in the years
after.1279
None of the interviewees were aware whether research on detainees ever occurred, but
the topic was discussed in government circles—where researchers could observe detainees and
the interrogation tactics that were used, be it in real-time or with archived data, without any
involvement in the interrogation itself. The PENS report’s research language, which is limited,
appears to leave space for these kinds of efforts to occur. But we were unable to conclude that
this, in fact, was what was envisioned by anyone at the time.
2.
PENS second draft report
Behnke distributed a second draft of the task force report at the start of the second day of
PENS meetings. Behnke’s hard copy files from the PENS meeting contains his copy of the
second draft along with his notes in the margins. A copy of this draft is appended to this
report.1280
Twelve statements appear in this draft and , save for Statement Seven, each appear in
the final version of the report, albeit in a slightly different order and with wording changes. But
the vast majority of this draft comprises the final report. So after one day of task force
deliberations, Behnke drafted a document that would largely become the final PENS report’s
twelve statements.
Statement seven in this draft, which is excluded from the next draft version, is the one
statement in any draft version that offered more specifics on when and what “techniques” to use.
The statement reads as follows:
[P]sychologists do not consult on techniques that would cause psychological
distress except for a clear, legitimate purpose, such as to prevent future acts of
violence. Punishment and obtaining a confession do not constitute legitimate
purposes. If psychologists consult on activities that would cause psychological
distress, they follow the restrictions on psychological distress set forth in Ethical
Standard 8.07, Deception in Research, which places boundaries on the degree of
psychological distress researchers may impose upon research subjects.
The statement outlined a “legitimate purpose test” to determine when a psychologist
could consult on techniques that cause “psychological distress.” This potentially large loophole
on using techniques that cause psychological distress is limited by the next sentence, which
specifies that punishment and obtaining a confession are not legitimate purpose. This language
incorporates a portion of the U.N. Convention Against Torture’s definition of torture, which
states that for an act to be considered torture, it must be done for one of several purposes,
including obtaining “information or a confession,” “punishing him,” or “intimidating or coercing
him or a third person.” Behnke’s used the “confession” and “punishment” limitations, but left
out the “obtaining information,” “intimidating,” and “coercing” limitations.1281 Thus, Behnke’s
1279 Banks, Gelles, and Andy Morgan all mentioned to Sidley the vigorous debates taking place within the
military and government about the unique opportunities that researchers had to observe interrogations.
1280 HC00017699.
1281 U.N. Convention Against Torture (Dec. 10, 1984), available at
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draft allowed psychologists to recommend an interrogation technique that would cause
psychological distress as long as their purpose was to get information in order to prevent future
acts of violence, and was not to punish or obtain a “confession.” Behnke’s draft also created a
novel second limitation—that psychologists in these situations needed to follow the restrictions
set out in a research provision of the Ethics Code Standard 8.07, which provides that
psychologists do not deceive prospective research participants about research that is reasonably
expected to cause “physical pain or severe emotional distress.” Behnke said he could not recall
why he included this provision as a type of limitation.
Arrigo’s notes from the second day onward are much less comprehensive since the group
voted on confidentiality and Shumate insisted that she cease note-taking the day before. She
wrote notes on the margins of the draft reports, which were then transcribed. But the notes
appear to corroborate the notion that there was some discussion about the draft statement and
also specific techniques more broadly. It also appears that Banks was against the language:
[Anton] Psychologist as advisor to induce stress.
[Banks] Thinks confession is legitimate purpose [for consultation with a
psychologist].
[unattributed] Psychologists do not conduct interrogation except possibly in
emergency field condition.
[Banks] Often we do try to exploit psychological distress. We need the
boundaries.
[Gelles] Creating conflict in a person is the way to move towards confession.
[Wessells] The disorientation techniques remain. Our reputation in this
profession depends on this document.
[Wessells] Still worried about the gray areas.
[unattributed] the point on the dial. Do we need to address this? We will be
asked. E.g., sleep deprivation.1282
Wessells recalled a longer discussion about whether “psychological distress,” as noted in
the Statement Seven draft language, was an appropriate dividing line for lawful or unlawful
interrogations. People like Gelles and Shumate, Wessells believed, thought the line was
inappropriate since it could encompass lawful domestic interrogations that involved plea
1282 Arrigo PENS Meeting Notes (June 25, 2005).
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bargaining, which could involve a certain level of distress. Wessells also recalled “evasive”
discussions with Banks, who opposed this new language, about specific interrogation techniques.
On sleep deprivation, for example, Wessells inquired to Banks how sleep deprivation was used.
Banks remarked that having someone sleep three or four hours the night before an interrogation
could be useful. Wessells then asked whether the techniques could be used on successive nights
and, if so, how many and whether it could be used in combination with our techniques. He did
not receive a direct answer. As discussed more below in his resignation from the task force,
Wessells believed that the DoD members did not wish to discuss these issues because it opened
the possibility of challenging existing military regulations.1283
The topic of waterboarding may
have been discussed informally between Wessells and Lefever, too, though not likely with the
larger group.1284
Behnke told Sidley that he believed that the statement was removed at Breckler’s behest.
Behnke recalled that Breckler wanted to remove the reference to research. Breckler said it was
possible that he asked Behnke to remove the language, but was unsure. In analyzing the draft
report language anew with us, however, he stated that the 8.07 language was inconsistent with
the draft statement’s first sentence about psychological distress, since Standard 8.07 specifically
dealt with deception in research only and not with various types of psychological
consultations.1285
When asked why he removed the full paragraph instead of only the statement citing
Standard 8.07 (or refine the “legitimate purpose test” another way), Behnke responded that he
likely viewed the paragraph as one unit; once the research sentence was gone, then he thought to
remove the full paragraph. Behnke also said the provision could be read broadly, where people
could justify harmful acts in the name of preventing future acts of violence. Behnke was not sure
why he did not refine the test—perhaps outlining a rule that always barred psychological
1283 Wessells interview (June 11, 2015).
1284 Wessells noted that he and Lefever had a conversation about waterboarding during one of the meeting
breaks. He recalled that Lefever was waterboarded during his Navy SERE training (Lefever confirmed
this with Sidley) and thought Lefever thought the sensation was terrible (Lefever told Sidley he thought
he was going to die). But ultimately, Lefever stated, the experience was bearable for him. Wessells
thought waterboarding was mentioned in passing during the meeting, but neither he nor other task force
members could recall a specific discussion about that technique.
1285 Breckler interview (June 18, 2015). Brandon’s notes from the second day of the PENS meetings also
appear to corroborate Breckler’s thoughts on the use of Standard 8.07. At the top of the fourth page of
her notes, she wrote “Disingenuous paragraph ‘7th’—distress in [research] [does not equal] stress in
interrogation.” Brandon Notes (undated) (on file with Sidley). The note may suggest that the Standard
8.07 standard—which bars psychologists from deceiving research participants about research that could
“cause physical pain or severe emotional distress”—is not the same as stress caused during an
interrogation. Brandon later added to Sidley that the note was “an assertion that we have no research on
interrogation methods that use abusive methods since research can't use such on subjects.” Email from
Brandon to Sidley (June 21, 2015).
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distress, allowing it in limited circumstances, making it broader, or perhaps using guidelines in
the Geneva Conventions1286—and instead removed it from the next draft entirely.1287
The statement was ultimately replaced by an unrelated issue about reminding
psychologists that the individual being interrogated “may not have engaged in untoward
behavior” and may not have useful information.1288 In analyzing a series of handwritten notes
from members,1289 Banks was the one who recommended this new statement.1290 Arrigo told
Sidley that she had originally raised a concern about interrogating detainees who were innocent
and that Banks drafted the wording for Behnke’s consideration.1291 Given that Banks was
against the draft statement’s minimal restriction on causing psychological distress, and given his
overarching goal to keep the PENS report in concert with military guidance, it is likely that
Banks appropriated Arrigo’s concerns both to curry favor with Arrigo and to block the use of any
language in the report that assessed the validity of certain techniques. This assertion is further
supported by later conversations between Behnke and Banks after the report was finalized about
how the key issue that people will ask about that is not addressed in the report is the amount of
psychological distress that is acceptable (discussed in the PENS Aftermath section).
The third draft of the report still included a reference to “psychological distress,” but that
was removed entirely by the fourth version of the draft report:1292
Third draft report (circulated at the start of June 26):
[P]sychologists who consult on interrogation techniques are mindful that the
individual being interrogated may not have engaged in untoward behavior and
may not have information of interest to the interrogator. When psychologists
serve as consultants to interrogation, and especially when such consultation
concerns techniques that potentially generate psychological distress, psychologists
1286 Article 17 of the Third Geneva Convention, for example, provides readily-adaptable language on the
590022?OpenDocument (“No physical or mental torture, nor any other form of coercion, may be inflicted
on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to
answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any
kind.”).
1287 Behnke interview (May 29, 2005).
1288 PENS Report.
1289 HC00017712. We identified each PENS member’s handwriting (either in person or by asking for a
handwriting sample) and matched them to this set of handwritten notes. Banks informed Sidley that the
second and last pages of the notes came from him.
1290 Id. (see last page).
1291 Arrigo interview (June 5, 2015).
1292 See PENS Drafts #3 & #4 (on file with Sidley) (emphasis added). Arrigo archived all versions of the
PENS drafts and final reports as part of the PENS Archives housed at the University of Colorado-
Boulder. We append a full set of drafts from Arrigo, which include her notes in the margins of these
drafts. Please note that there are two copies of the fourth draft of the PENS report in these files.
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consider whether the techniques consulted upon would be deemed ethically
appropriate should such determinations related to guilt and relevance ultimately
be made. At all times psychologists remain mindful of the prohibitions against
engaging in or facilitating torture and other cruel, inhuman, or degrading
treatment. Psychologists inform themselves about research regarding the most
effective and humane methods of obtaining information and become familiar with
how culture may interact with the techniques consulted upon. (Ethical Standards
2.01, Boundaries of Competence; 2.03, Maintaining Competence; and 3.01,
Unfair Discrimination)
x It appeared that Gilfoyle flagged the language in the third draft as confusing.1293 After
the bold section above, she wrote “I’m not sure it’s clear what you mean here -if they are
innocent or had no info , would the tactics used stand up to scrutiny? . . . It also sort of
raises the specter that they may just be detained indefinitely and never have such a
determination made.” Behnke responded to Gilfoyle that this statement represented an
“extremely complicated issue,” that was “one of the most challenging ethical issues in
this whole area.”1294
This exchange may have led to the changes in the fourth draft,
which avoided using the term “psychological distress” at all.
Fourth draft report (circulated at the end of June 26):
[P]sychologists who consult on interrogation techniques are mindful that the
individual being interrogated may not have engaged in untoward behavior and
may not have information of interest to the interrogator. This ethical obligation is
not diminished by the nature of an individual’s acts prior to detainment or the
likelihood of the individual having relevant information. At all times
psychologists remain mindful of the prohibitions against engaging in or
facilitating torture and other cruel, inhuman, or degrading treatment.
Psychologists inform themselves about research regarding the most effective and
humane methods of obtaining information and become familiar with how culture
may interact with the techniques consulted upon. (Principle E, Respect for
Peoples’ Rights and Dignity; Ethical Standards 2.01, Boundaries of Competence;
2.03, Maintaining Competence; and 3.01, Unfair Discrimination)
This draft statement seven was the one instance across any of the drafts that aimed more
specifically at the techniques that may or may not be used in an interrogation. No version of it
survived the later drafts and final report. To be sure, it does not appear in anyone’s notes that
this statement impassioned as much debate as the issues of international law. But the dynamics
of the room—the number of DoD members, Newman’s role as leader of several discussions,
Behnke’s role as lead drafter, members admonishing Arrigo on the first day, the promise of the
meetings and report being an initial step in the process—likely stifled talks on this and other
statements in the report.
1293 APA_0040786; APA_0040787.
1294 APA_0048590.
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3.
Other day two conversations
The conversations from the second day of PENS meetings largely followed from the first
day. Some observations are listed below:1295
x
Gelles retained an absolute position on psychologist never conducting interrogations
while the military members of the task force disagreed.
x
Newman continued to lead conversations of the task force and reiterated the need to keep
the report’s message direct as possible (ex: Arrigo’s notes: “Don’t go too far in
discussing psychologists as interrogators so as not to expose ourselves and complicate the
issue.”).
x
Behnke, too, raised similar concerns as Newman (ex: Arrigo’s notes: “Attend to level of
specificity in document so as not to cause difficulties.”).
x
Wessells continued to press for international standards in the document or a discussion of
specific techniques. Behnke cited to some of the international legal standards in the
subsequent draft document as discussed below. Pointedly, Wessells was noted as saying
that “disorientation techniques remain,” and that psychology’s “reputation . . . depends on
this document.” Gelles was noted as saying that he “[w]ants to postpone” a further
discussion on these issues.
x
Lefever provided additional examples of what he believed were permissible interrogation
tactics.
x
Banks and others raised the issue of psychologists’ role in preventing behavioral drift.
This psychologist role was added in the next draft version of the report and part of the
final report.
x
Arrigo brought up the idea of a casebook with examples and received support from
several task members and observers about his idea, including Newman. As discussed
later, the idea was never realized within the task force.
x
Gravitz joined the group as an observer and offered a few comments during the meeting.
At one point, Wessells recalled to Sidley, that Gravitz offered comments on the use of
coercive methods. Wessells and Arrigo thought the methods would never work but
Gravitz disagreed, stating that some methods were needed under “certain
circumstances.”1296
Anton emailed Koocher after the second day of the meetings and provided a summary
that highlighted problems with Arrigo and his approval of the “DoD folks”:
1295 All observations come from the Arrigo PENS Meeting Notes (June 25, 2005), unless otherwise noted.
1296 Wessells interview (Mar. 11, 2015).
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Jean Maria got pretty loose today - e.g. questioning why the American
Psychological Association was called the American Psychological Association.
She did alot of splitting too, in my opinion, and was quite difficult. She continued
to take notes, writing on the margins of our in-progress papers in spite of
assurances yesterday that she wouldn't. I think she aliented [sic] everyone but
Mike Wessells [sic] and I'm not too sure about his feelings. I have to say that
DoD folks were gentle, respectful, and open to her, but also were able to express
their views. They are very interested in a continuing dialogue with APA and were
pleased to be there and look forward to collaborating on other projects.”1297
Behnke sent a revised draft of the report after midnight to Gilfoyle, Koocher, Anton,
Farberman, and Moorehead-Slaughter for comment ahead of the final task force meeting.1298
Notably, Farberman commented that the report include some kind of disclaimer so the statements
are not construed “as APA saying torture or inappropriate treatment has taken place.”1299 The
next version of the report (and final report) clarified at the beginning of the report that the task
force’s changes “did not include an investigative or adjudicatory role, and as a consequence
emphasized that it did not render any judgment concerning events that may or may not have
occurred in national security related settings.”1300
D.
Day Three: June 26, 2005
The task force met for half the day on Sunday, the final day of meetings. Behnke
distributed copies of a third draft version of the report.1301
Notably, the document added that
psychologists do no engage in torture as well as “cruel, inhuman, and degrading treatment,”
which tracked the U.N. Convention Against Torture that Wessells, Thomas, and Arrigo
championed. At some point, Arrigo’s notes indicate that Newman commented that if the
document had no new ethical principles, then APA governance could approve the report quicker.
Newman pronounced that if there were new principles within the document, then it could take up
to a year to approve the full document.1302 The third draft also added a point on how
psychologists could prevent behavioral drift (“How the combination of a setting’s ambiguity
with high stress may facilitate engaging in behaviors that cross the boundaries of competence
and ethical propriety.”). The remaining draft reports are appended to this report and come from
Arrigo’s collection of the draft reports. As such, they contain Arrigo’s handwritten notes on the
draft reports.
Farberman also joined the meeting by conference call to discuss talking points for the
report. Farberman told Sidley that it was very common for her join various task forces to discuss
1297 APA_0040795.
1298 APA_0040782.
1299 Id.
1300 PENS Report.
1301 See PENS Draft #3 (on file with Sidley).
1302 Arrigo PENS Meeting Notes (June 26, 2005).
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these issues.1303
Arrigo’s notes indicate Farberman made comments about not implying that
torture occurred at Abu Ghraib or Guantanamo Bay .1304
Banks also mentioned that he intended to personally brief the Army Surgeon General on
the report’s findings.1305
By the evening of June 26, Behnke revised the document a fourth time based on the task
force’s final comments and forwarded to Moorehead-Slaughter to circulate to the group.
Behnke, per conversations with Wessells, added a footnote citing to the Geneva Conventions and
the U.N. Convention Against Torture.1306 Each member approved of the final fourth draft
version of the report that evening.
Shortly thereafter, Shumate attended a meeting with William Winkenwerder, then-
Assistant Secretary of Defense for Health Affairs. Kelly sent an email on June 28 informing
Behnke, Mumford, Breckler, and Newman. She noted that Shumate described the “thrust” of the
PENS meetings and that Winkenwerder was “pleasantly astounded” that APA tackled the issue
and requested a copy of the report.1307
E.
PENS Report Analysis
The full PENS Report is appended to this report.1308 The final report contained an
overview and introduction to the report, followed by “Twelve Statements Concerning
Psychologists’ Ethical Obligations in National Security-Related Work and Commentary on the
Statements,” conclusion and non-consensus issues sections, and 10 recommendations. The
report said that psychologists could serve as consultants to national security interrogation
consistently with the Ethics Code, and articulated two high-level limitations on that activity,
without further significant definition: psychologists could not be involved in torture or cruel,
inhuman or degrading treatment, and psychologists attempted to ensure that interrogation
methods were safe, legal, ethical and effective. As the evidence shows, these high-level
limitiations were intentionally chosen by Behnke because they reflected what Banks wanted and,
by extension, reflected what key parts of DoD wanted.
1.
Psychologists as “safety officers”
A foundational question that underpins the PENS report, and stressed by Behnke and
Banks to us throughout our investigation, is the notion that having psychologists involved in
interrogations by observing the interrogators was of critical importance in ensuring the safety of
1303 Farberman interview (May 19, 2015).
1304 Arrigo PENS Meeting Notes (June 26, 2005).
1305 Id.
1306 See PENS Draft #4 (on file with Sidley). Wessells suggested adding the citations in one other section
of the report, which Behnke did.
1307 APA_0026757.
1308 PENS Report.
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the detainee. A psychologists’ training in human behavior, the argument goes made them
uniquely situated to watch for and stop “behavioral drift”—the phenomenon identified in Philip
Zimbardo famous Stanford prison experiment and elsewhere that those with physical power over
others who use that power to cause discomfort or pain to others will often tend to drift toward
greater and greater uses of that power unless stopped. Banks, along with Lefever and others who
taught at military SERE schools, say that this is a key and legitimate role for psychologists at
SERE, since without such a “safety monitor,” even SERE instructors pretending to be captors of
U.S. soldiers may go too far. In fact, when Air Force SERE were brought to Guantanamo Bay in
December 2002 to provide guidance about “employing ‘SERE’ techniques during detainee
interrogations,” their Standard Operating Procedure memo used the term “Watch Officer” as a
standard position within the SERE procedure (although the memo did not specify that it needed
to be a psychologist).1309
Psychologists ranging from the APA’s leading critics to PENS participants Brandon,
Gelles, and Shumate 1310 have expressed doubt that psychologists are uniquely or well situated
for this role, especially outside of a SERE training context. For purposes of our discussion here,
we assume that having someone monitor interrogators for behavioral drift would be an important
part of the interrogation process if the interrogator is intentionally inflicting some form of
physical coercion or psychological distress (as in SERE training), and it seems reasonable that
the training and experience of psychologists would make them among the best candidates for
playing the role of “safety monitor” or “watch officer” by watching the behavior of the
interrogators.
However, Banks, Dunivin, Behnke, and others who emphasize this role for psychologists
in interrogations and who tend to use it as the primary (and positive-sounding) justification for
including psychologists in the interrogation support process1311 are also quick to say that
psychologists should be included in interrogation support because they help make the
interrogations “effective.” This was one of the four pillars of the Banks/Dunivin “safe, legal,
ethical and effective” formula that the PENS report adopted, and the PENS report made it an
ethical obligation of psychologists working on interrogations to try to rely on methods that are
“effective.”
1309 JTF GTMO “SERE” Interrogation Standard Operating Procedure, Guidelines for Employing “SERE”
Techniques During Detainee Interrogations (Dec. 10, 2002), available at
1310 Brandon told Sidley that she questioned how true it was that psychologists were important to national
security efforts. She also made, as she put it, some “snide” remarks in her notes about the conversation
surrounding the utility of psychologists as monitors. Brandon Notes (undated) (on file with Sidley)
(“why are [psychologists] so wise? Informed?); Brandon interview (May 26, 2015). In addition, Arrigo’s
notes indicate that Gelles “disagrees strongly with the implication that [psychologists] should monitor” as
it was inconsistent with psychologists’ role in consulting on interrogations. Arrigo PENS Meeting Notes
(June 25, 2005). Shumate told Sidley that he “question[ed]” how much value psychologists brought to an
interrogation setting. He added, though, that with specific training for psychologists working in these
settings, interrogations could move in “the right direction” but that they did not serve a critical role.
Shumate interview (June 24, 2015).
1311 See PENS Report (“psychologists are in a unique position to assist in ensuring that [interrogation]
processes are safe and ethical for all participants”).
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Their theory is therefore that when psychologists are involved in an interrogation of a
non-cooperative foreign detainee considered an “unlawful combatant” suspected of knowing
important information, in an environment of intense pressure to produce actionable intelligence
to protect the American public and in which the protection of the criminal justice system do not
apply, psychologists should be playing two roles at the same time - (1) strict monitor of the
interrogator, including promptly telling the interrogator (or telling his supervisor or commander
to tell him) that he is going too far and needs to stop, and (2) partner of the interrogator in trying
to engage in interrogation techniques that will be effective in getting the detainee to be
cooperative and to tell the truth about what he knows.
This strikes us either as naïve or intentionally disingenuous. The pressures on the
psychologist in this situation not to stop the interrogator from becoming more aggressive are
very significant, both because of the dynamic that the interrogator and psychologist are working
together to make the interrogation effective and likely have a need to work together on an
ongoing basis on other interrogations, and because the psychologist likely would be utilizing his
subjective judgment in telling the interrogator that he has gone “too far” (a judgment that can
easily be subject to criticism and second guessing) rather than an objective judgment based on
clear lines drawn by external sources (e.g., DoD or APA guidelines). One would think that
mature, confident psychologists primarily committed to the role of “safety monitor” would be
able to overcome these pressures in most situations. But this would depend on the individual
psychologist, and the context of the individual situation. In other words, it might work or it
might not. As an ethics expert pointed out to us, an independent psychologist monitor outside
the chain of command would have a better chance at success with this responsibility.1312
Just as it makes little sense to say that SERE techniques can be “reverse engineered” for
detainee interrogations with little fear of lasting psychological damage because they are used
safely in controlled environments on informed, consenting U.S. soldiers, so too does it make
little sense to say that a “watch officer” will always be solely motivated to stop an aggressive
interrogator because it works successfully in SERE training when there is no actual concern that
public safety will actually be compromised if the “interrogators” do not actually get the
information from the pretend “detainee.” This is especially true when the “watch officer” is also
being asked to help make the interrogation as effective as possible.
If Banks and Behnke really believed that the only real reason a psychologist needed to be
involved in interrogations was to keep them safe by playing the role of “safety monitor,” they
could have written the PENS report to limit a psychologist’s role in interrogations to this
function. The report could have said that psychologists may support interrogations only by
playing the role of safety monitor to ensure the safety of the detainee, by watching the
interrogator to ensure that behavioral drift does not occur. But as Gelles pointed out, this would
mean that a psychologist could not consult in the way psychologists typically do in law
enforcement situations, by consulting on interrogations and investigations to make them
effective— in environments in which the protections of the criminal justice system apply. And
1312 Emails from Sveaass to Sidley (June 17, 2015 & June 18, 2015).
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Banks, Dunivin and DoD, and Behnke and APA, did not want to impose such a significant limit
on the involvement of psychologists in national security operations.1313
2.
Need for specificity and limits
We heard from APA defenders during the investigation that they only intended the PENS
task force report to allow psychologists to support interrogations by recommending rapport-
building techniques, not physical or aggressive ones. But the report does not say this, although it
could have. Given the public awareness of the Bush Administration’s narrow understanding of
key terms like “torture” and “inhumane” and its claim that the Geneva Conventions did not
apply, the widespread media reports about abusive interrogation techniques, and the explicit
discussions at the PENS meeting and the media about specific techniques like stress positions
and sleep deprivation, it was obvious to everyone involved in the PENS task force that national
security psychologists would be asked to advise on interrogation techniques that went well
beyond rapport-building. The PENS Task Force report could have said that psychologists may
support interrogations only by recommending techniques that constitute rapport building. But as
with the other limitation, this was not consistent with Banks’s and DoD’s preferences (and
therefore Behnke’s and APA’s) that the role of psychologists not be limited beyond whatever
constraints DoD itself had in place.
Our consternations with the the lack of specifity in the report were solidified through
conversations with three prominent academicians with broad experience in issues of ethics,
torture, and human rights: (1) Nancy Sherman, Philosophy Professor at Georgetown University
and consultant to the U.S. armed forces;1314 (2) Nora Sveaass, Psychology Professor at the
University of Olso and former member of the United Nations’ Committee Against Torture;1315
and (3) Janel Gauthier, President of the International Association of Applied Psychology and
primary drafter of the “Universal Declaration of Ethical Principles for Psychologists.”1316 At
bottom, all three raised concerns that key terms used in the PENS report—be it, “torture,” or
“cruel, inhuman, and degrading treatment,” or “safe, legal, ethical, and effective”—were not
1313 Some critics who have correctly alleged that some APA/government collusion was behind the PENS
Task Force result further allege that APA’s motive must have been based on the Justice-Department-
memo rationale, under which harsh interrogation techniques are not torture if a psychologist or other
relevant expert says the technique to be applied will not cause severe physical or psychological suffering.
We did not find evidence that this Justice-Department-memo rational was part of the thinking or motive
of APA officials though, again, we did not have deep access into various CIA or DoD-level interactions
during this period.
1314 For a full biography, see http://explore.georgetown.edu/people/shermann/.
1315 For a full biography, see http://www.sv.uio.no/psi/english/people/aca/norasv/.
1316 For a full biography, see http://www.ecp2015.it/international-scient/janel-gauthier-2/. For more on
the Universal Declaration, see http://www.iupsys.net/about/governance/universal-declaration-of-ethical-
principles-for-psychologists.html.
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well-defined and left an inordinate amount of flexibility for government entities to dictate what
was permissible.1317
Sherman thought the report was “peculiarly abstract,” and “evasive.”1318 Sveaass stated
it was “very sad” and “strange” that a specific definition of torture was not included in the report,
particularly since the United States ratified the U.N. Convention Against Torture and that its
definition of torture was “absolute.”1319
Gauthier believed that several terms in the report were
open to many interpretations and worried about the lack of specific human rights definitions in
the document. He believed that the document would have been better served if it plainly defined
what “torture” was and what specific techniques were permissible and under what
circumstances.1320
Both Sveaass and Sherman raised the point that, because of the known institutional
pressures and pronouncements at the time of the PENS process regarding interrogation tactics
and the lack of legal safeguards for detainees (at least when compared to prisoners in the U.S.
criminal justice system), it behooved APA to provide specific guidance to psychologists in these
settings to comprehend and combat techniques that were permitted and those that were not.1321
Sveeass emphasized that the report needed additional context—the state of detention centers at
Guantanamo Bay, the lack of legal rights for detainees, the reported abuses, the BSCT teams
used in these detainee interrogation settings—in order to better understand the roles and purposes
of psychologists in these settings in the first place. Instead, Sveaass asserted, the report included
a list of ill-defined things psychologists should not do in national security settings.1322
Sherman made the point that torture was not typically an individual-only activity, but
usually depended on the “corruption of the system” in which multiple actors, some of whom are
1317 Steve Kleinman, a military intelligence officer, also told Sidley that the “safe, legal, ethical, and
effective” framework was not useful, and that clinical psychologists in general were not the best kind of
psychologists to have on BSCTs in the first place. Kleinman interview (May 22, 2015).
1318 Sherman interview (June 5, 2015).
1319 Sveaass interview (June 11, 2015). Article I of the Convention Against Torture defines torture as
follows: “For the purposes of this Convention, the term ‘torture’ means any act by which severe pain or
suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining
from him or a third person information or a confession, punishing him for an act he or a third person has
committed or is suspected of having committed, or intimidating or coercing him or a third person, or for
any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the
instigation of or with the consent or acquiescence of a public official or other person acting in an official
capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful
sanctions.” Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
1320 Gauthier interview (June 15, 2015). Gauthier raised the point that having absolute statements in
ethical guidance could also be problematic since certain situations may call for different ethical
considerations. To Gauthier, the report would have been better served if it specified the ethical
considerations in various scenarios.
1321 Sherman interview (June 5, 2015); Emails from Sveaass to Sidley (June 17, 2015 & June 18, 2015).
1322 Emails from Sveaass to Sidley (June 17, 2015 & June 18, 2015).
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high-level, make decisions and take actions that allow it go forward.1323 The structural taint of
government polices was apparent by the time of the PENS report (ex: Rumsfeld Working Group,
OLC memos, Abu Ghraib and Guantanamo Bay abuses). In fact, APA regularly discussed
media reports about these issues. Thus, APA should have been on high alert that professionals—
like psychologists—participating in that system needed specific ethical constraints and
guidelines to operate in that system, because such a system was also typically accompanied by
intense pressure to conform and to follow orders to engage in abusive activity. These structural
pressures are not theoretical. It is the situation that Banks and James argued that John Leso
found himself in ahead of the Mohammad al-Qahtani interrogation in 2003.1324
Instead, the PENS report banned participation in torture and CID but avoided defining
these terms at a moment where precision and explanation were crucial for the psychologists
working in these interrogation settings.
Behnke contested the specifcity point with Sidley, noting that “prohibiting specific
techniques” was not “initially central to the work of APA, or several other associations, that
addressed the issue of member involvement in interrogations.”1325 Behnke went on to cite
relevant provisions from the American Medical Association (“AMA”), the American Psychiatric
Association (“ApA”) and the World Medical Association’s (“WMA”) Declaration of Tokyo as
examples where none of these provisions prohibited specific techniques.
Behnke’s assertions belie what happened at PENS and with other organizations,
including the military. For one, the background materials provided to each task force member
included descriptions of harsh techniques used at the time and the controversy surrounding them
(discussed earlier) , so there was an awareness that harsh techniques were occurring in detainee
settings. Second, specific techniques were not discussed during PENS because participants like
Newman, Banks, Koocher, and Behnke avoided addressing specifics during the PENS meetings.
Other DoD members, even if they expressed an interest in having boundaries or limits on what
psychologists could do, did not promote the need for specific language in the report. Wessells,
Thomas, and Arrigo’s quest to add international human rights standards within the PENS
report—one way to provide specific guidance for a psychologist—was met with stiff resistance
by the military majority. In addition, former Chief of Staff for the Assistant Secretary of
Defense for Health Affairs, Thom Kurmel, told Sidley that the “key” debate in 2005 among his
DoD colleagues was “how far” health professionals could go in interrogation settings and less
what professional associations said about their presence.1326 So the issue of specific techniques
and what was permissible was underscored by media reports, by task force members, and by the
military.
1323 Sherman interview (June 5, 2015).
1324 Both James and Banks explained to Sidley that Leso had been placed in an arduous situation where he
received pressure from his Command to concoct an interrogation plan with which he was not comfortable.
Leso is discussed further later in this report.
1325 Email from Behnke to Sidley (June 3, 2015) (emphasis in original).
1326 Kurmel interview (June 16, 2015).
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Regarding other organizations’ positions, a brief look at the AMA, ApA, and WMA
positions will explain why specific techniques were not listed. The AMA defined what a coerced
interrogation was in its analysis:
“threatening or causing harm through physical injury or mental
suffering.”1327
The ApA banned its professionals in those settings outright, so there was no need
to list prohibited techniques.1328
And the WMA’s Declaration of Tokyo defined torture at the
outset of the document:
For the purpose of this Declaration, torture is defined as the deliberate, systematic
or wanton infliction of physical or mental suffering by one or more persons acting
alone or on the orders of any authority, to force another person to yield
information, to make a confession, or for any other reason.1329
Another psychological association, the British Psychological Society, also came out with a
statement in February 2005 that condemned the use of torture and cruel, inhuman, and degrading
treatment in interrogations. Its definition of torture combined more general terms with examples
of specific techniques.1330
The PENS report did none of these things. It provided no definition of torture or CID,
provided no list of prohibited interrogation techniques, and did not ban psychologists from these
settings writ large.
Behnke also claimed that prohibiting specific techniques at the time would have raised
concerns that the group may unwittingly exclude a technique and, therefore, provided an explicit
loophole for interrogators to exploit. It was not until March 2007, Behnke argued, when he
attended an event at the Wright Institute with Professor Alfred McCoy, that he realized that there
was a fairly consistent list of techniques that interrogators used consistently and he incorporated
this thinking into what ultimately became the 2007 APA Resolution that banned the use of
specific techniques.1331
This assertion, too, is incorrect. Behnke and Banks engaged in a
1327 Opinion 2.068 - Physician Participation in Interrogation, American Medical Association (Nov.
2006), available at http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-
ethics/opinion2068.page?.
1328 Position Statement on Psychiatric Participation in Interrogation of Detainees, American Psychiatric
Association (May 2006), available at
006_Interrogation.pdf.
1329 Guidelines for Physicians Concerning Torture and other Cruel, Inhuman or Degrading Treatment or
Punishment in Relation to Detention and Imprisonment, World Medical Assembly (May 2006), available
1330 APA_0085552 (“For the purpose of this Declaration, torture is defined as the deliberate, systematic or
wanton infliction of physical or mental suffering by one or more persons acting alone or on the orders of
any authority, to force another person to yield information, to make a confession, or for any other reason.
This definition includes the use of threats, insults, sexual, religious or cultural degradation or degrading
treatment of any kind.”).
1331 Behnke interview (June 8, 2015); see also Historian Alfred McCoy Speaks on U.S. Torture Program,
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dialogue as early as October 2006 about adding specific techniques as part of a substitute motion
in response to Neil Altman’s moratorium resolution, discussed further in the next section of this
report. What is more, Behnke’s worry that a non-listed technique could be used had an easy
resolution—to insert language that the list was not exhaustive and that the underlying principle
was about not inflicting abuse or harm upon individuals.1332
From his perspective, Banks thought it was inappropriate for an ethics-related document
like the PENS report to contain guidance on specific techniques used in an interrogation. He told
Sidley that he believed a deeper discussion about sleep deprivation, for example—how long it
could be used for, what would constitute sleep deprivation, whether late night interrogation
settings were permissible—were best reserved for the military in some form in the Army Field
Manual or another DoD policy document. He contended that the report established clear
boundaries on other issues related to dual roles, the use of medical records, and the limits of
confidentiality.1333
James also welcomed specific guidance for psychologists, but stated that he did not need
the PENS report to provide this guidance for him. James spoke passionately to Sidley about how
the key question he asked when consulting on an interrogation was whether he would be
comfortable with those techniques being used on his wife or son. At the same time, he thought
the document should be aspirational as he believed other ethical guidelines were. He did not
want the report to make military interrogations “too restrictive” because the “military guys” were
worried that the report’s limitations could transfer to psychologists working in non-military
interrogation settings and unnecessarily limit what techniques were used. He posited that some
critics may argue for a ban on raising one’s voice or swearing at a prisoner in any interrogation.
James admitted, however, that having an aspirational document with few specifics likely did not
answer all the questions psychologists in the field may have had about the ethical duties in
specific settings.1334
Shumate explained to Sidley that the task force should not have gotten “bogged down” in
the “granular” details of the topic at first and, instead, try and understand the “forest” from a
“30,000 foot view.” Thereafter, Shumate declared, additional steps could be taken to address
specifics, but he thought that neither APA or psychologists were in a position to properly address
the various legal issues that may arise with interrogation practices.1335
Mixing metaphors aside,
Shumate’s explanation makes little sense in the context of providing ethical guidance to
Speaks-on-U-S-Torture-Program-video#. After the March 10 event, Behnke had drafted a statement on
behalf of the Ethics Committee on March 19 that listed specific techniques. APA_0064480.
1332 This is exactly what the Ethics Committee did in a March 2007 statement leading up to the 2007 APA
Resolution. APA_0064480.
1333 Banks interview (May 21, 2015).
1334 James interview (June 1, 2015).
1335 Shumate interview (June 24, 2015).
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psychologists in national security settings and, instead, sounds like a pretextual reason about why
the task force report was not more specific.
Implicit in both Banks’s, James’s, and Shumate’s comments is a belief that the DoD was
better-positioned to handle the specifics of interrogation techniques. These same beliefs
permeated Dunivin’s thinking at the beginning of the task force selection process, which
Newman espoused during the PENS meetings. Behnke, too, made comments related to avoiding
the specifics during the meetings. In the end, the report was general enough that it gave the DoD
the flexibility to make more specific calls on what was permissible despite troubling institutional
pronouncements on what constituted torture and what protections detainees ought to receive.
A vivid example of how little guidance the PENS report provided was presented during
our interviews with Banks and Behnke. Sidley separately posed to both Behnke and Banks
whether interrogations involving certain kinds of stress positions would run afoul of the “safe,
legal, ethical, and effective” analytical framework or the PENS report in general. Neither could
provide a clear answer based on these two sources alone.1336 Behnke struggled to respond to
which types of stress positions, each with varying levels of pain to the detainee, would be
considered “safe.” His response shifted to the effectiveness point—technically an incorrect
approach since a psychologist was supposed to have gone the four terms in order—where he
noted that, even if a particular position was safe, it likely was not effective. When asked how he
knew that, Behnke believed that studies about interrogations would dictate that rapport-building
was the best way to interrogate a detainee.1337 If this was true and others agreed, then the PENS
report could have explicitly mentioned that rapport-building was the best way to handle detainee
interrogations—it did not.
Banks explained that, for him, the dividing line of the “safe” prong of the analysis was
whether the detainee was put in significant increased risk of harm with a technique. Assuming a
particular stress position was safe, Banks conceded that the legality point was also open to
interpretation depending on what pronouncements were in effect at the time. In 2003, for
example, there was Army Regulation 190-8 that governed military personnel, but there were also
pronouncements from the Secretary of Defense that supposedly trumped 190-8 declaring that
detainees were not covered under the Geneva Conventions and that certain interrogation methods
were permissible. Assuming a stress position technique was also legal, Banks perused the Ethics
Code to determine whether the techniques were “ethical” under the third prong. Banks thought
that the technique violated the principles of the Ethics Code but not necessarily any of the
specific rules. At this point, Bank said he would turn to the PENS report for the answer. When
he did, he pointed to statement one of the PENS report and said that this particular kinds of stress
position were “degrading” (he speculated placing a detainee in a “push-up” position might be
permissible, but not hanging a detainee from a ceiling). When asked how he knew this, Banks
admitted that this conclusion was from his experience and viewpoint, not necessarily from a
definition in the report.1338
Banks later stated that the PENS report “was not remotely sufficient”
1336 Behnke interview (May 29, 2015); Banks interview (May 21, 2015).
1337 Behnke interview (May 29, 2015).
1338 Banks interview (May 21, 2015).
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but that it helped establish the training standards in place today for all BSCTs.1339 This
training—Banks noted before that it lasted six weeks—would solidify answers to these and other
questions.1340
Banks’s response begs the question—how useful can a report be when you need
six additional weeks of training to understand what you can and cannot do?
3.
Other report issues: do no harm, medical records, mixing roles,
confidentiality, enforceability
There is other questionable language in the report as well:
Introduction: “Do No Harm” omission
Notably, the quoted portion of Principle A: Beneficence and Nonmaleficence in the
report excludes the opening sentence involving “do no harm.” Instead, the Principle A’s second
sentence is quoted first: “In their professional actions, psychologists seek to safeguard the
welfare and rights of those with whom they interact professionally and other affected persons.”
Behnke told us he could not recall why he did not include the “do no harm” sentence but
did not think its exclusion had much significance. Our conclusion is that because of the
ambivalence within the DoD task force members about how to define “harm” as it relates to
physical pain and distress, and the desire by Behnke and Banks not to take a hard-and-fast
position that psychologists in interrogation situations can never “do harm” (despite the Ethics
Code principle), Behnke intentionally left out the “do no harm” language.
Addressing this issue specifically would have been feasible in a wide variety of ways, for
instance by providing a non-exclusive list of prohibited specific techniques, or by describing
what was prohibited by using words such as “abuse,” “physically coercive,” or “intentionally
inflicting physical pain or mental suffering other than mental suffering incidental to lawful
sanctions.” The decision not to do so reflects a desire to keep the PENS report at a high level of
generality at Banks’s request.
Statement Two: Ethical responsibility to report inappropriate acts
A secondary portion of the the second statement cites to ethics Standard 3.04, Avoiding
Harm, to support the claim that psychologists “guard against the names of individual
psychologists being disseminated to the public,” since it could expose a psychologist. Standard
3.04 cites to minimizing harm to third parties, research participants, and organizational clients,
but makes no mention of peers or colleagues. Behnke explained that the issue of safety was top
of mind for several participants and that is how this statement took shape.1341
Statements Three and Six: Not using medical information to detainee’s deteriment and multiple
relationships
1339 Email from Banks to Sidley (June 1, 2015).
1340 Banks interview (May 21, 2015).
1341 Behnke interview (May 29, 2015).
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Critics have argued that Statement Three contains a loophole: while the rule states that
psychologists in interrogation support roles cannot use an individual’s medical record “to the
detriment of the individual’s safety and well-being,” it does not explicitly bar access to medical
records or explicitly bar other ways the records could be used, such as for creating an
interrogation strategy.1342
Banks, and to a lesser extent James, pushed to include this carve out
language so that a psychologist would have the necessary insight to determine whether a
legitimate interrogation technique (such as providing a cooperative detainee with a candy bar)
might cause health problems (by seeing that the detainee was diabetic, for instance). Because of
these requrests, the PENS report allowed this access.
Behnke admitted that some people could have circumvented the statement’s
restrictions.1343
Statement Six, in theory, may provide a stop gap when it demands psychologists
refrain from “mixing potentially inconsistent roles such as health care provider and consultant to
an interrogation.”1344
Yet a later correspondence in October 2006 between Banks and Behnke
casts doubt upon whether these two rules were ever envisioned to work together in this way.
In the October 2006 correspondence, BSCT Carrie Kennedy informed Behnke that
BSCTs were “upset” after being excluded from a Command meeting that discussed medical and
mental health information on detainees.1345 Behnke immediately informed Kennedy and Banks
that sitting in on these meetings and receiving this information would violate the PENS report’s
Statement Six. Kennedy responded that BSCTs could argue that sitting in on meetings was
permitted under PENS report Statement three since no BSCT would use the medical information
against the detainee.1346
After underscoring to Kennedy the “absolute demarcation” between
these two roles and the “GREAT stir” if it was publically known that BSCTs were present in
such meetings, Behnke forwarded the exchange to Banks and noted that this mindset would
confirm the critique of BSCT teams:
People like Neil Lewis, Bloche, and Marks would claim that this proves their
point: These roles are inevitably commingled. They would argue 1) If
psychologist/consultants aren't going to use the information, why do they need to
be present when the information is discussed? 2) Once the information is in their
heads, is it realistic to expect that they won't use it, even if inadvertently? 3) If the
purpose of communicating information is to keep the interrogation safe, can't the
medical people simply communicate behavioral restrictions to the interrogators?
4) The psychologist/consultant's presence in the room inevitably blurs the
1342 This is the exact criticism that Gregg Bloche later raised with Behnke in late August, as discussed
further below. APA_0042240.
1343 Behnke interview (May 29, 2015).
1344 Id.
1345 APA_0088797.
1346 Id.
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distinction between the two roles, and that “blurring” will likely be felt in other
parts of the interrogation process and/or with interrogation personnel.1347
Banks’s response to Behnke is telling: “We worded the [PENS] report so that this would
not be precluded
I have access to information that I can misuse all the time, why is this
different?” Banks thought it might make sense to separate the BSCTs because of the “PR risk,”
but not because he thought the PENS report prevented this blurring of relationships to occur.1348
Behnke and the APA’s position on this issue therefore fit the pattern we saw in this investigation
regarding PENS—positions were taken to please DoD based on confidential behind-the-scenes
discussion and an eye toward PR strategy.
Notably, one way to avoid having these multiple relationships would be if BSCTs were
somehow stripped of their clinical privileges while deployed. In fact, this very possibility was
discussed within the Army Surgeon General’s office ahead of finalizing their BSCT MEDCOM
policy in 2006.1349 The PENS report, however, nipped that possibility in the bud, and retained
much of what BSCTs were already doing without adding obstacles to their deployments. It is
possible that Banks or Dunivin, the leaders in drafting the 2006 MEDCOM policy, were aware
of these discussions and sought to forestall this issue with a positive outcome in PENS that did
not permit this option.
Statements Three and Nine: medical records and the limits of confidentiality
Another possible loophole with Statement Three is its relationship with Statement Nine
regarding the limits of confidentiality. While Statement Three does not permit the use of an
individual’s medical record to their detriment, Statement Nine reminds psychologists that there
are limits to confidentiality and the “minimum amount of information necessary” can be shared
with someone who has a “clear professional purpose of obtaining the information.” The report
does not explain what a “clear professional purpose” may be, but a June 2005 memorandum
regarding the medical treatment of detainees from William Winkenwerder, then-Assistant
Secretary of Defense for Health Affairs provides several “permissible purposes” of confidential
information: “to prevent harm to any person, to maintain public health and order in detention
facilities, and any lawful law enforcement, intelligence, or national security related activity.”1350
Several of these permissible purposes could ultimately harm the detainee’s well-being, contrary
to Statement Three.
Statement Four: Barring violations of U.S. law
This statement may raise another loophole with its language that psychologists “do not
engage in behaviors that violate the laws of the United States.” At the time, narrower definitions
1347 Id.
1348 Id.
1349 Crow interview (June 22, 2015).
1350 Memorandum for Secretaries of the Military Departments et al., Medical Program Principles and
Procedures for the Protection and Treatment of Detainees in the Custody of the Armed Forces of the
United States, (June 3, 2005), available at http://www.defense.gov/news/Jun2005/d20050627policy.pdf.
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of torture prevailed through pronouncements from the OLC. The head of the OLC at the time of
PENS, Steven Bradbury, had written a series of memos in May 2005 to the CIA permitting the
continued use of waterboarding and other harsh techniques.1351 Thus, psychologists could
arguably participate in waterboarding sessions since they did not violate the way the law was
interpreted at the time.
Both Behnke and Banks contended that the statement referred to all U.S. civil and
criminal laws as well. So while slapping or waterboarding may have been permitted under
certain OLC pronouncements at the time, it would violate assault provisions in the U.S. Code,
the Uniform Code of Military Justice, or Army Regulation 190-8.1352 The report does not make
this point immediately obvious, however.
The statement also makes reference to, at Wessells’s behest, the Geneva Convention
Relative to the Treatment of Prisoners of War and the U.N. Convention Against Torture. But as
discussed earlier, these provisions are not made binding on psychologists in these detainee
settings.
Enforceability of the document
There is also confusion within APA about the enforceability of the PENS report—that is,
could a psychologist have been brought on ethics charges if they violated one of the twelve
statements in the report? Behnke told Sidley that he saw the statements in PENS as
independently enforceable ethical obligations on which a disciplinary case could be brought.1353
On the other hand, Gilfoyle told Sidley that a complaint would still need to specifically cite the
ethical standard and not the PENS report alone.1354 We found it very notable that, 10 years after
PENS, the APA Ethics Director had a view about the legal enforceability of PENS that was at
odds with the view of the APA General Counsel.
Research
1351 Memorandum from Steven G. Bradbury, Principal Deputy Assistant Attorney General, to John A.
Rizzo, Senior Deputy General Counsel, CIA, Application of 18 U.S.C. §§ 2340-2340A to Certain
Techniques That May Be Used in the Interrogation of a High Value al Qaeda Detainee (May 10, 2005),
available at http://media.luxmedia.com/aclu/olc_05102005_bradbury46pg.pdf; Memorandum from
Steven G. Bradbury, Principal Deputy Assistant Attorney General, to John A. Rizzo, Senior Deputy
General Counsel, CIA, Application of U.S. Obligations Under Article 16 of the Convention Against
Torture to Certain Techniques That May Be Used in the Interrogation of a High Value al Qaeda Detainee
from Steven G. Bradbury, Principal Deputy Assistant Attorney General, to John A. Rizzo, Senior Deputy
General Counsel, CIA, Application of 18 U.S.C. §§ 2340-2340A to the Combined Use of Certain
Techniques in the Interrogation of High Value al Qaeda Detainees (May 10, 2005), available at
1352 Behnke interview (May 22, 2015); Banks interview (May 21, 2015).
1353 Behnke interviews (May 22, 2015 & May 29, 2015).
1354 Gilfoyle interview (May 20, 2015).
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The PENS Task Report contained several recommendations that further research be
conducted in this area. This include a paragraph “encourag[ing] . . . further research to . . .
examine the efficacy and effectiveness of information-gathering techniques, with an emphasis on
the quality of information obtained
Also valuable will be research on cultural differences in
the psychological impact of particular information-gathering methods and what constitutes cruel,
inhuman, or degrading treatment.” A subsequent section recommended that APA encourage
psychologists to engage in research into “methods for gathering information that is accurate,
relevant, and reliable. Such research should be designed to minimize risks to research
participants such as emotional distress, and should be consistent with standards of human subject
research protection and the APA Ethics Code.” The evidence shows that Mumford, Brandon,
Newman, and Gravitz made drafting suggestions regarding the research recommendations, and at
least some of Brandon’s drafting suggestions made it into the final version.
Critics have pointed to some of this language as an indication that APA was intentionally
attempting to provide ethical support for research by the CIA or DoD on detainees at
Guantanamo or elsewhere, or was otherwise attempting to allow for research that involved harsh
interrogation techniques without the proper human-subject-research protections.
We found this a topic on which it was difficult to draw clear conclusions, and our
discussion and analysis of the evidence is discussed earlier in our summary of the second day of
PENS meetings above.
4.
Positive aspects of the report
Application of Ethics Code
At the July 2004 meeting at APA with CIA, DoD and FBI psychologists that was the
precursor to the PENS meetings, CIA psychologist argued that the APA Ethics Code should not
apply to work by psychologist in national security operations, such as interrogations, because a
code written for the ethical treatment of patients was not a good fit for this different situation.1355
The PENS report explicitly rejected this argument and noted in its introduction that the Ethics
Code binds psychologists whenever they take actions as a psychologist and therefore applies to
work on national security interrogations. The report also made it clear in one of its 12 ethical
guidelines that the Ethics Code provision prohibiting “multiple relationships” meant it was
unethical for a psychologist to both consult on a detainee’s interrogation on behalf of the
government and be the detainee’s health care provider.
These were positive points in the PENS report, and the first one constituted a refusal to
go along with a position previously advanced by the APA’s lead contact at the CIA (although the
CIA appeared be effectively absent at the PENS task force, with the likely exception of Melvin
Gravitz). On the other hand, Behnke described these as clear and easy points to make, and we
note that DoD officials were not opposed to them.
1355 Former CIA colleagues of Hubbard’s, Kennedy and Morgan, told us that prior to this meeting,
Hubbard had given them the opposite impression—that he believed the APA Ethics Code did apply and
should be applied to the involvement of psychologists in interrogations. That Hubbard’s belief was the
one he described during the July 2004 meeting surprised and disappointed them, they said.
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Ethical obligation to detainee
Statement Eleven in the PENS report says that psychologists have “ethical obligations to
individuals” who are not their clients, including “to ensure that their activities in relation to the
individual are safe, legal, and ethical.” In making this statement, the PENS report cites Ethics
Code standard 3.04 (“Avoiding Harm”), which says that “[p]sychologists take reasonable steps
to avoid harming . . . others with whom they work, and to minimize harm where it is foreseeable
and unavoidable.” The PENS report statement does not specifically mention interrogations, but
it implies that psychologists consulting on interrogations have an obligation to follow standard
3.04 with regard to detainees. It does not seem a given that detainees would be considered
“others with whom [psychologists] work,” so this statement can be seen as a significant one.
However, if physical pain and psychological distress do not automatically equate to
“harm,” as discussions with the DoD psychologists indicate, then the failure to provide any
specificity about how to determine whether interrogation techniques that intentionally cause pain
or distress constitute harm means that standard 3.04 may not provide substantial protection. For
instance, Banks’s view was that some stress positions were “safe” and therefore might be
properly used as interrogation techniques. (He cited the “push up” stress position to us as an
example.) Similar, the PENS report refused to take a position on sleep deprivation despite being
asked to do so. In addition, section 3.04 does not prohibit harm—it simply requires
psychologists to take “reasonable steps” to “avoid harming” the individual.
5.
Need for robust ethics analysis
The fact that a robust ethics analysis was not part of this ethics process led by the Ethics
Director was surprising to us but is consistent with two additional observations revealed by our
investigation.
First, Ethics Director Behnke often acted as APA’s chief of staff on this issue, taking the
lead in recommending and drafting virtually all APA decisions and statements on this issue,
whether relating to Board strategy, PR, Capitol Hill lobbying, and APA Council of
Representatives management and strategy, among others. As we have learned in this
investigation, Behnke is a brilliant and highly educated psychologist and lawyer, a nice and
charming person, a highly gifted and fast writer, and a very sophisticated and nuanced strategist
and communicator. Whatever organizational or personality dynamic led to APA allowing him
to play this remarkably expansive role, well beyond the expected duties of APA Ethics Director,
the result was a highly permissive APA ethics policy based on strategy and PR, not ethics
analysis.
Second, APA leaders had decided in the 1990s (before Behnke’s arrival at APA in 2000)
that APA’s ethics policies and practices had been too aggressive against psychologists, and that a
more supportive and protective and less antagonistic ethics program was appropriate. They
wanted a greater focus on ethics education and consultation, and much less of an emphasis on
strict rules and robust enforcement of disciplinary complaints. Revisions to the Ethics Code
focused in part on making its rules more precise to ensure that psychologists had proper notice
about what behavior was considered unethical, and to minimize APA’s litigation risk from
lawsuits by sanctioned psychologists. A provision about how to handle conflicts between legal
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and ethical obligations was expanded so that psychologists could follow court orders or military
orders requiring them to engage in conduct otherwise prohibited by the Ethics Code as long as
they attempted to resolve the conflict first. Behnke was hired specifically to pursue an ethics
program that was more “educative” and fulfilled these goals. During his tenure, APA
disciplinary adjudications plummeted, and the focus was on supporting psychologists, not getting
them in trouble—a strategy consistent with an ultimate mission of growing psychology.1356
Thus, when the time became ripe to consider what ethical constraints to put on an
important group of psychologists, two factors that could conceivably have created internal
pressure in APA for those ethical constraints to be strong—an Ethics Director focused
exclusively on ethics analysis and perhaps guided by inquiry into systems in which torture
occurred and issues of psychological distress by those in captivity, and an ethics approach that
had a robust focus on the integrity of the profession and the protection of the public—were not
present.
IV.
REPORT APPROVAL
The unusual speed1357 and Board approval of the PENS report was motivated principally
by the desire of APA Board members Levant and Koocher to (1) create a PR message that would
be perceived as backed not just by a public statement but by actual substance (a new APA ethics
policy) and that could be used to a fluid PR situation perceived as negative, and (2) curry favor
with DoD which communicated that it too wanted a prompt release of the report so it could use
the report for its own purposes (which were both PR and policy purposes).1358
1356 More about this point is discussed in our findings related to APA’s adjudications process, discussed
later in this report.
1357 As a point of comparison, the American Anthropological Association tasked a Commission in 2007
and 2009 to review various national security-related issues for anthropologists. Commission member
Carolyn Fluehr-Lobban told us that the 2009 report, which expressed disapproval of anthropologists’
presence in DoD’s Human Terrain System program, was completed after the Commission met three or
four separate times over the course of a year for one and two all-day sessions of debate and discussion of
the issues. The report was also completed in response to 2007 media reports of anthropologists’ roles in
this DoD program. Fluehr-Lobban interview (May 15, 2015); see also Final Report on the Army’s
Human Terrain System Proof of Concept Program, American Anthropological Association (Oct. 14,
2009), available at
1358 In addition to the intensive press coverage on issues of potential abuse of detainees during this time,
the Commander of the Joint Task Force - Guantanamo was testifying before the House Armed Services
Committee during the week of June 27 on the issue of detention conditions at Guantanamo. Reports of
the hearing make it clear that the Pentagon was attempting to provide positive answers in response to
concerns about abuse and improper conditions at Guantanamo. A report from a third party (APA) saying
that psychologists could ethically be involved in interrogations at Guantanamo had the great potential to
be a positive story for DoD, from its perspective, and the emails show that DoD was thrilled with the
content of the PENS report. Aside from the PR issues, the Army Surgeon General’s Office was in the
midst of developing its policy for the involvement of psychologists and psychiatrists in interrogations,
based on Banks and Dunivin’s draft policy document, and this closely-aligned, highly supportive report
from APA was of great assistance to that effort, as the emails between Banks, Dunivin and Behnke show.
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A.
Internal discussions and military pressures
Before the PENS meetings, on June 14, Behnke mentioned that Moorehead-Slaughter
would “very much like the Task Force to complete a report during the course of the meeting, or
very shortly there after, setting forth whatever positions the Task Force feels prepared to take at
that point.”1359
Behnke continued to highlight the great interest in the issue from the
government and the media:
Given the interest that the US Government has shown in APA's analysis of these
questions, and recent media reports, we will need to consider to what extent any
Task Force product will be made available to groups outside of APA.1360
As mentioned before, the New York Times had run an article on Friday, June 24, the first
day of the Task Force meeting, reporting that “[m]ilitary doctors at Guantanamo have aided
interrogators in conducting and refining coercive interrogations of detainees, including providing
advice about how to increase stress levels and exploit fears.”1361 The article quoted both Behnke
and the ethics committee chairman of the American Psychiatric Association and compared the
positions of the two organizations:
While the American Psychiatric Association has guidelines that specifically
prohibit the kinds of behaviors described by the former interrogators for their
members who are medical doctors, the rules for psychologists are less clear
[I]n a statement issued in December, the American Psychological Association
said the issue of involvement of its members in ‘national security endeavors’ was
new.1362
APA President Levant later worried that the article made APA look bad because it
“portrayed APA as unsure of where the ethical boundaries lie.”1363 To Levant and Koocher,
managing APA’s image required it to show that the task force report was more than simply a set
of high-level, “loose” statements that might be justified as a tentative “initial step” as part of a
more thorough, long-term examination of the issue, but was instead a clear and “strict” statement
of the actual ethical boundaries, as discussed further below. The fact that the PENS report was
nothing of the sort did not stand in the way of the their strategic attempt to create the best
possible media response.
1359 APA_0048757. There is no other evidence that Moorehead-Slaughter requested the report be
completed that weekend, aside from Behnke’s email. We are highly skeptical that Moorehead-Slaughter
would have come to this conclusion on her own, especially with Behnke’s strong handling of her in other
facets of the PENS process.
1360 Id.
1361 Neil Lewis, Interrogators Cite Doctors’ Aid at Guantanamo, New York Times (June 24, 2005),
available at
1362 Id.
1363 APA_0040505.
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By the evening of June 26, the task force members approved a final draft version of the
report. Anton then emailed the Board informing them that they would receive the report for their
review and approval.1364 Thereafter, a debate began within APA about what next steps were
needed to publicize the report.
Gilfoyle first responded to Anton (and included Behnke, Newman, Breckler, and
Farberman) and flagged the issue of having the Ethics Committee review the report before it
went to the Board for approval, regardless of whether the document was viewed as interpretative
of the existing Ethics Code or as new guidelines.1365 She also added that in either case, “some
degree of public comment would also be in keeping with the way APA has gone about adopting
standards.”1366
Behnke responded that the Board could also make the report public “asap” without
formally adopting it, and noted that the “military people are asking for the report soon—Morgan
has a meeting with the Surgeon General on Wednesday.”1367 In addition to Banks, James told
Sidley that he implored Behnke, Koocher, and Levant to expedite the review process for the
report since there were captains in the “field right now that were getting their asses kicked and
needed guidance.”1368 He believed a normal review process could have taken many years to
finalize the report. Koocher also told Sidley that press reports added to the pressure of releasing
the report soon.1369
He also believed that Division 19 (Military Psychology) members wanted
the report issued as soon as possible.1370
Gilfoyle later suggested that the Board could conditionally approve the report subject to
Ethics Committee review and comment. “If you want to say clear of public comment,” Gilfoyle
continued, “we definitely want to stay away from calling anything the [B]oard does
guidelines.”1371
She intimated that the group had more “latitude” if the report was thought of as
interpretative guidelines where public comment was not formally required. Behnke later
reiterated the “eagerness” among the military to have the report quickly made public, especially
with the pending publication of a New Yorker story.1372
Newman believed the document was interpretative and that he “would be reluctant to put
this out widely for public comment,” but that the Ethics Committee should review the document.
He later inquired whether the Ethics Committee review could be “expedited.”1373 Farberman
1364 APA_0040750.
1365 Id.
1366 Id.
1367 Id.
1368 James interview (May 2, 2015).
1369 Koocher interview (June 12, 2015).
1370 Koocher interview (Mar. 20, 2015).
1371 Id.
1372 APA_0048500.
1373 APA_0040740.
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raised the concern of “piss[ing] off” the Ethics Committee by publically releasing the document
before they fully reviewed it.1374
She offered an alternative plan where the Ethics Committee
would quickly review and approve of the full report before it was released to Council and the
media. Ultimately, the group decided to seek the Ethics Committee’s approval of the report as
appropriate interpretative standards over a conference call and then immediately send to the
Board for approval and make the report public.1375
B.
Ethics Committee and Task Force Re-Approval
On June 27, 2005, Behnke sent APA Ethics Committee an email about reviewing the
final draft of the PENS report to determine “whether the twelve bolded statements are
appropriate interpretations and applications of the Code.”1376 The Board was sent a final draft
copy at this time for their review as well.1377 A conference call was held on June 29, 2005 with
the Ethics Committee. Sidley was unable to locate any notes from this meeting and relevant
interviewees did not recall the substance of this conference call.1378 Behnke informed Levant,
Koocher, and Anton that the committee had “unanimously passed” the motion that the PENS
report included appropriate interpretations and applications of APA Ethics Code.1379 After this
conference call, Behnke drafted Moorehead-Slaughter another email, which she then sent to the
PENS listserv, that identified the minor changes in the report.1380 The most substantive change
was that the Committee recommended that statement three in the report (medical records) add
the language “from the individual’s medical record.” Notably, Behnke sent the draft report to
Banks for review after the Ethics Committee had provided their changes.1381 Banks told Behnke
he approved of the changes and mentioned that he met with the “[Army] Surgeon General, and
he will bein front of the Senate soon, on this issue. (He is very supportive.) Having APA's
support will mean a lot.”1382 Behnke explained to Sidley that he sent the document to Banks
because there were no military people on the Ethics Committee and, as he had on other
occasions, he wanted Banks to review the changes to ensure he Behnke was made aware of any
unknown issues to him and the Ethics Committee. Behnke did not recall whether he sent the
1374 APA_0040730.
1375 APA_0040652.
1376 APA_0051102.
1377 APA_0040582.
1378 One of the Ethics Committee members, Neil Massoth, was unable to join in person and sent his
thoughts over email. Massoth believed the PENS report was an appropriate interpretive statement of the
Ethics Code and that prohibiting specific techniques was unnecessary. As Massoth wrote: “We do not
need incorporated in our current Code or any code a list of prohibited activities (e.g., one must not give
the Rorschach, conduct EMD, etc.). The prohibition regarding sexual intimacies with clients is the only
prohibition that we need.” APA_0040635.
1379 APA_0051202.
1380 APA_0048478.
1381 APA_0040580.
1382 Id.
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draft to anyone else besides Banks.1383 Sidley did not locate an instance where Behnke sent a
draft version of the report ex parte to another task force member.
The PENS task force members approved a revised fifth draft version of the report by June
30, 2005. Behnke sent an update to Levant and suggested that it would be “more efficient and
less cumbersome” if the Board made the report public with the “weight of the Ethics Committee
behind it,” as opposed to adopting/endorsing/accepting the report.1384
Kelly emailed Behnke, Farberman, Mumford, Breckler, and Gilfoyle separately to inform
them that Secretary of Defense Donald Rumsfeld’s “exec assistant will apparently waiting by the
fax for this! His super secret direct access fax line. They’re just a tad interested.”1385
Gilfoyle
cautioned Kelly that it made her “very nervous that Rumsfeld’s office is eager for this,” and that
it would be a “nightmare” if the DoD relied on the report to conclude that abuses did not take
place at Guantanamo Bay or Abu Ghraib.1386 Farberman agreed and stated that APA’s response
to questions about psychologist or psychiatrists abuses in both settings is that “we don’t know
because we don’t know the facts . . .the report [makes] clear statements about which activities
would be ethical and which would not.”1387
C.
Board takes emergency action
On June 30, Behnke emailed Koocher and Anton to remind them that a pertinent New
Yorker article was forthcoming, likely by July 4, and that the task force could not convene again
before then, based on what the Board’s actions were.1388 Farberman underscored Behnke’s
worry about the New Yorker article and APA’s need for a “strong position”:
While I recognize that the Board has a critical role in this process and will need
the time it needs to respond I also feel I have to let you know that I'm worried that
if this New Yorker article does hit the streets on Monday will we (sic) be facing
lots of questions about the ethics of psychologists working in national security
interrogations on Tuesday. My hope is that we will have the report fully approved
by that juncture -- with it we have very strong talking points. Without it we're not
in as strong a position.1389
Behnke told Sidley that he was not sure how he was made aware of Jane Mayer’s New
Yorker article, “The Experiment,” which was ultimately released on July 11,1390 but speculated
1383 Behnke interview (May 29, 2015).
1384 APA_0051204.
1385 APA_0040495.
1386 Id.
1387 Id.
1388 APA_0040518.
1389 Id.
1390 Jane Mayer, The Experiment, The New Yorker (July 11, 2005), available at
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that Banks or Gelles may have provided him details.1391 A final draft of the PENS report in
Behnke’s files contains his handwritten notes with several mentions to the New Yorker
article.1392
The notes include comments like “New Yorker,” “Jim Mitchell,” “SERE,” and
“Church Documents,” all of which are mentioned and discussed in Mayer’s article from July 11.
The notes also include the names “Ali Soufan” and “Bob McFadden,” an FBI agent and NCIS
officer, respectively, who oversaw other interrogations but were not discussed in the Mayer
article.1393
Behnke was unsure when he took these notes.1394
Later on June 30, Anton was made aware of the Board draft resolution options, including
one that contemplated the Board “adopting the report as policy,” and emailed Behnke with a
“concern”: “I’m not sure it can go out as policy without [Council of Representatives] approval.
The [Board] can certainly accept the report.”1395 It is likely that the plan to declare an
“emergency” was in response to Anton’s concern that the Board could not normally adopt
something as APA policy, since this was the Council’s function. But under APA’s Bylaws, the
Board could take emergency action and adopt policy in Council’s stead.1396
On the morning of July 1, 2005, Levant asked the Board over email to take emergency
action to either approve of the report and review its recommendations at its August 2005 meeting
(what he called “option 1”) or to adopt the report as APA policy and review its recommendations
thereafter (what he called “option 2”).1397
Levant’s email declared that psychology was being
“well trashed in the media” and that “situations like this are the very reason to have a Board that
acts as Executive Committee of Council, to act in timely manner to pressing events.”1398
The Board approved of the report over email the same day with every board member who
offered an opinion choosing Levant’s second option of adopting the report.1399 There was no
1391 Behnke interview (May 29, 2015). Both Banks and Gelles were interviewed for the article.
1392 HC00010682.
1393 For more on these two individuals’ actions, see Lawrence Wright, The Agent, The New Yorker (July
1394 Behnke interview (May 29, 2015).
1395 APA_0040508.
1396 Article VII:Board of Directors, Bylaws of the APA, available at
http://www.apa.org/about/governance/bylaws/article-7.aspx (“If an emergency is declared by a majority
of the Board of Directors, the Board shall have power to take actions as though such action were taken by
Council. The Board of Directors shall make a report of such emergency actions not later than the next
meeting of the Council. It shall furnish a report of all such transactions at each Business Meeting of
Council held in conjunction with the Annual Convention.”).
1397 APA_0040505.
1398 Id.
1399 Thomas DeMaio and Paul Craig did not formally choose option one or option two over email, but
they indicated their support of the Board moving ahead without Council. The only Board member whose
email vote Sidley has note located during this time was Jessica Henderson Daniel. It is unclear whether
she offered a vote on the report at all or did so over the phone or in-person. Daniel did offer thoughts on
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documented conference call or meeting to discuss the emergency vote. It appears that the entire
vote was conducted over email on July 1. Behnke separately emailed Koocher to inform him
that there may be “some confusion” about the two options Levant laid out in his email.1400 In
particular, Behnke noted that Levant’s second option “commits the Board to endorsing the
Report. While I believe the Report is very strong and represents APA very well . . . only a very
limited number of people have seen it.” Behnke added that if the report received “negative
reaction,” then “option 2 would have inextricably tied the Board to the Report.”1401 Internal
APA emails do not indicate this issue was discussed with other Board members at the time.
Levant stated in his interview with Sidley that it would have been “wimpy” for the Board to
approve his first option since it only expressed hope that the report would be approved.1402
Some board members offered brief thoughts over email in their vote. Ruth Ullman Paige,
the night before the vote, praised the reports “ethics focus versus a political focused” and
suggested that a vote be held over email because of “time urgency.”1403 Sandra Shullman stated
that a “timely and immediate response, all other things being equal, is in the best interest of
APA.”1404 Thomas DeMaio stated that he “wish[ed] we could wait for Council, but we probably
do need to move forward quickly.”1405 Behnke stated at the end of the day on July 1 that “the
Board has endorsed. The Report will be released.”1406 None of Sidley’s interviews with Board
members at this time yielded additional information about any further discussions during this
emergency vote beyond what was found over email.
At one point before the emergency vote, Board Member and 2004 APA President Diane
Halpern (“Halpern”) had a “very strong recommendation” of adding a note or data point about
how “torture is ineffective in obtaining good information.”1407 Halpern’s comment was met
with opposition by several within APA leadership. Koocher responded to Halpern by declaring
the point “goes beyond the mission/mandate of the task force and makes a claim not in
evidence.”1408
Gilfoyle began a separate conversation with Behnke and Farberman about this
issue and how “linking our condemnation of torture in any way with the fact that it is ineffective
should be avoided at all costs
I guess you could say [Halpern’s point] but is that true? And I
the report on June 29, but that predated Levant’s emergency vote email. APA_0040582. Daniel could
not recall the details during an interview with Sidley. Daniel interview (Apr. 21, 2015).
1400 APA_0040497.
1401 Id.
1402 Levant interview (May 13, 2015).
1403 APA_0040503.
1404 APA_0040502.
1405 APA_0040491.
1406 APA_0026862.
1407 APA_0040500.
1408 APA_0040504.
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guess more to your point, do you want to start down the path of line edits.”1409 Farberman
agreed and hoped that Halpern’s suggestion was “dead in the water.”1410 Behnke separately
emailed Koocher and Anton about Halpern’s recommendation and again showed that his primary
goal was to stay completely aligned with DoD. After citing to Statement Ten of the report on
effectiveness, Behnke concluded, “which means that if a technique or method is not effective,
PSYCHOLOGISTS SHOULD NOT BE DOING IT.”1411 Behnke then stated he was “concerned
about making an absolute empirical statements,” especially since the task force “may not have
felt entirely comfortable” making such a “clear, blanket, statement.”1412
In other words, because
at least some of the DoD members were not ready to agree that torture was effective (e.g.,
Lefever told the group that his experience with SERE was that waterboarding was often effective
at getting U.S. soldiers in the program to reveal accurate information that was supposed to be
secret),1413 Behnke wanted to block this Board member’s suggestion.
Anton later emailed Halpern to note that statements eight and ten in the report “embraces
your point entirely.”1414
Halpern responded that those were “[g]ood points” and stated that “the
only deterrent [to using torture] is that it doesn’t work and that there are data on this.” Behnke
sent a response to Halpern after Anton and noted that her comments captured “many of the
attitudes toward coercion that I’ve gleaned from individuals working in this area.” Behnke then
strongly stated the ineffectiveness of “coercion”:
Your message captures many of the attitudes toward coercion that I've gleaned
from individuals working in this area: It doesn't work. It's counterproductive. It
generates bad information. It besmirches our reputation. It puts our soldiers who
are captured at greater risk.
I have not done a thorough enough review of the literature to know how and
where the data come down, and my sense is that relevant data may be classified.
But I am looking, and will let you know what I am finding.1415
Halpern did not pursue the issue further after Anton’s and Behnke’s responses.1416
Ultimately, Council and the PENS Task Force members received an embargoed copy of
the report on July 4. The report was then released to other groups on July 5—first to the
1409 APA_0040500.
1410 Id.
1411 APA_0051185 (emphasis in orginal).
1412 Id.
1413 Lefever interview (May 3, 2015).
1414 APA_0040478.
1415 APA_0051170.
1416 In her interview with Sidley, Halpern did not recall many of the details of the PENS process. As the
outgoing APA president, she was not privy to many discussions at the time. Still, Halpern thought that
critics had unfairly targeted Behnke for his role in PENS. Halpern interview (May 8, 2015).
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Division and State listservs and APA staff at 9 a.m. ET, then to government and military contacts
at 10 a.m. ET, and finally to the media at 11 a.m. ET.1417
Sidley received varying insights from Board members and APA leadership about the use
of the emergency action. Levant believed taking emergency action was “not extremely unusual;”
though he admitted it was more unusual to adopt a report or policy email.1418 Levant explained
that he considered passing the report an emergency since he was sensitive to psychology’s public
reputation and felt a great deal of urgency in responding to negative press.1419 Gilfoyle also
believed that responding to the media onslaught was an appropriate reason to exercise
emergency powers.1420
On the other hand, Honaker told Sidley that taking emergency action was very unusual
and that it was advisable for the Board to wait since the next Council meeting was set to take
place in August.1421 Judy Strassburger Fox, a forty-year APA employee until her retirement as
the Executive Director of Governance Affairs in 2009, commented to Sidley that she only ever
recalled emergency Board actions being taken to appoint high-level Board positions and not for
adopting a report.1422
Anton remarked to Sidley that this was the only time he had seen in his
seventeen years of APA governance emergency action used to set APA policy.1423 Koocher
professed that other than emergency actions relating to financial situations requiring immediate
action (such as a refinancing situation), or one situation 20 years earlier when immediate action
was required to avoid a negative government regulatory action, he did not believe the Board had
ever declared an emergency in order to take a specific action.1424
Board member Sandra Shullman also provided additional context to Sidley. She said that
while it was unusual for the Board to take emergency action in general, it was less so in the
context of that year’s board. That Board had previously taken emergency action in early 2005 on
assisting efforts related to the Southeast Asian tsunami, and so APA was in “an environment
where [the Board] acted swiftly.”1425 Shullman thought there were two reasons the Board took
quicker action with the PENS report: (1) the “awful things happening in front of our eyes on TV”
that were “devastating” to APA’s principles, and (2) psychologists’ concerns about their roles
where they could not publicize their concerns.1426
1417 APA_0040485; APA_0051169.
1418 Levant interview (May 13, 2005).
1419 Id.
1420 Gilfoyle interview (May 20, 2015).
1421 Honaker interview (Dec. 11, 2014).
1422 Strassburger Fox interview (Apr. 3, 2015) .
1423 Anton interview (May 8, 2015).
1424 Koocher interview (May 20, 2015).
1425 Shullman interview (Apr. 20, 2015).
1426 Id.
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These diverse opinions on the emergency action, however, illustrate that APA did not
have a clear policy on what constituted an appropriate emergency action. Even more troubling,
the entire vote was conducted over email without any real substantive discussions about the
statements made in the PENS Report.
Further, the manner in which the emergency vote was taken may also raise concerns
under Washington, D.C. non-profit law. D.C. law permits a Board of Directors to take action
without a formal meeting “if each director signs a consent in the form of a record describing the
action to be taken and delivers it to the nonprofit corporation.”1427 This unanimous consent
requirement, however, may not have been met during the emergency vote. We have not located
any email record of Board member Jessica Henderson Daniel’s vote on Levant’s proposal. APA
does have not record of this emergency vote either. Without this unanimous consent, then, the
entire emergency action would be invalid. It will be important for APA, Daniel, and others to
redouble their efforts to confirm that Daniel’s formal vote was given on the emergency action.
Other corporate legal issues may arise as well, which fall beyond the scope of this review—
namely, whether only two voting options (which excluded any option to reject the report) and an
email vote without any attached consent form or formal gathering of signatures were valid
actions under Washington, D.C. law.
V.
PENS INITIAL AFTERMATH AND RELATED ISSUES
A.
Immediate Aftermath: July 2005-September 2005
1.
Banks-Behnke exchange on answering psychological distress
APA’s initial press release about the PENS report summarized the findings of the report
and made clear that psychologists could “serve in consultative roles to interrogation- or
information-gathering processes for national security-related purposes.”1428 The statement, as a
whole, was exactly the message that was pleasing to DoD.
The day before this press release, Behnke and Banks continued an exchange about
communications efforts surrounding the PENS report.1429 Behnke outlined two key questions he
thought APA would receive about the report: “What roles or functions may psychologists
ethically take in assisting interrogations, and is it permissible for psychologists to suggest or
recommend techniques that would cause psychological duress.”1430 Behnke told Banks that he
1427 Code of the District of Columbia § 29-406.21. Action without meeting, available at
1428 Report of the APA Presidential Task Force on Psychological Ethics and National Security (July 5,
1429 Prior to these communications, on July 2, a Washington Post opinion piece that criticized medical
personnel’s roles in abuse. Behnke instructed Moorehead-Slaughter to forward the article and inquire
within the task force about the military’s “new guidelines” that the article mentioned. James believed this
passage was referring to the Army Surgeon General’s recent guidelines, but that they “in no way say
torture by health professionals is perfectly ok.” PENS listserv (July 2, 2005); APA_0051158.
1430 APA_0051149.
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would also like to offer an example to elucidate these questions to questioners. Banks responded
that Behnke’s questions were the “real issue”:
What is the level of psychological distress that moves it into abuse . . . ? This is
the one that will foster the greatest legitimate controversy. Some will feel that
any psychological distress is too much for psychologist involvement, regardless
of the purpose. Obviously, I disagree, but it is a legitimate view point.1431
Behnke thanked Banks for his thoughts and that he would need to think further about
“how best to package some of these ideas.”1432 Behnke then commented on the “distress” point
and the media issues with commenting on it:
I'll need to think more about what you (no doubt correctly) identify as the key
issue, that of distress. The reality, if one thinks about it, is that psychologists
cause distress ALL the time, for treatment and non treatment reasons, at times to
benefit an individual, at times not. (The ethical standards on research clearly
allow some degree of psychological distress in conducting research, which is
rarely to the research subject's benefit.) The challenge is to convey that idea to
the media in a manner that does not convey “anything goes.”1433
This key question was not addressed in the PENS report, despite two of the most
influential participants’ understanding its importance. As noted earlier, the draft language that
referenced “psychological distress” was removed, as was a serious discussion about what kinds
of interrogation techniques may be unethical. This exchange adds further support to the idea that
Banks, Behnke, and others wanted to avoid addressing thornier issues in the PENS report itself
and instead defer to existing DoD policies and practices at the time.
2.
Another Neil Lewis article, overstating the utility of the PENS report
What is more, this omission of specifics was immediately at issue in an exchange with
Neil Lewis who planned to write an article about the report. After Behnke sent him a link to the
task force report on July 5, Lewis emailed Behnke with questions about the report. He inquired
about several issues, including his confusion over whether a psychologist could “advise but
cannot advise as to increasing duress or distress? [Q]uite unclear. [C]an they advise about
increasing stress or duress as long as it is not coming from medical records? ”1434 Lewis also
asked whether it was permissible for a psychologist to take part in an interrogation that played on
a “detainee’s fear of darkness or longing for a family member.” Behnke forwarded Lewis’s
message to Banks and noted that Lewis had “put his finger right on one of the central issues, as I
imagined he would.”1435
1431 Id.
1432 Id.
1433 Id.
1434 APA_0051124.
1435 Id.
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Banks offered Behnke his thoughts to Lewis’s questions later on July 5. He stated that
medical records cannot be used against a detainee and that there was a “separation between
interrogation and medical care.”1436 Banks conceded that the report did not bar a psychologist
from assisting in “causing some level of distress, as long as it does not rise to the level of cruel,
inhuman, or degrading treatment.” He believed that “most of us would agree that” exploiting
someone’s phobia would violate this principle but that discussions about family would not.
Behnke thanked Banks for the response and added that he could quote language from the U.N.
Convention Against Torture that also made it clear that mental suffering that was “severe” is
forbidden. Banks cautioned that citing to this language in the Convention Against Torture might
be interpreted as “we will do everything up to, but not including, severe mental suffering. I think
that the standard is much more humane than that.”1437 Behnke and Lewis appeared to have
spoken on the phone about Lewis’s question later in the afternoon on July 5.
By the evening of July 5, Lewis’s article was posted to the New York Times website and
was circulated across several APA listservs. Lewis criticized the PENS report, noting that it
appeared “to avoid explicit answers to questions as to whether psychologists may advise
interrogators on how to increase stress on detainees to make them more cooperative if the advice
is not based on medical files but only on observation of the detainees.”1438 Lewis also cited the
fear of darkness example that he posited to Behnke. Behnke began drafting a response to
Lewis’s article later that night and ultimately collaborated with Farberman to draft a statement
that Levant could send as a Letter to the Editor to the New York Times.1439 Behnke also sent the
letter for Banks’s approval,1440 to which Banks responded that Behnke was “doing great stuff for
psychology.”1441 The letter was published on July 7 and claimed that the PENS report included
“strict ethical boundaries” for psychologists and refuted the use of phobias in interrogations,
adopting Banks’s conclusion on the issue:
In focusing on perceived shortcomings of an American Psychological Association
Task Force report, (Psychologists See Ethics Risks at Guantanamo, July 6), Neil
1436 Id.
1437 APA_0051124. Behnke also messaged Banks on July 5 on whether he believed the a section of the
U.N. Principle of Medical Ethics, which was cited in APA’s 1986 Resolution Against Torture, was
consistent with the PENS report. Specifically, Behnke cited language in Principle 4 of the United Nations
document about how it was a violation of medical ethics for a health professional to approve“the fitness
of prisoners or detainees for any form of treatment or punishment that may adversely affect their physical
or mental health and which is not in accordance with the relevant international instruments
” Banks
responded that he was unsure of the documents “legal standing for US citizens (This is one of those areas
that we agreed to disagree on.).” Id. After commenting that the principles were “VERY poorly written,”
Banks said it would depend on the “international instruments” referenced in the document.
APA_0040363 (emphasis in original).
1438 Neil Lewis, Psychologists Warned on Role in Detentions, New York Times (July 6, 2005), available
1439 APA_0051117. Notably, Farberman removed Behnke’s reference to the American Psychiatric
Association and noted that she wanted to avoid a media-led “turf battle” between the two organizations.
1440 APA_0051115; APA_0051116.
1441 APA_0040256.
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Lewis failed to report on the strict ethical boundaries the APA sets forth when its
members are involved in national security activities, and thus overlooked a critical
point: Professional codes of ethics are more than simple laundry lists. Lewis’
example--using a phobia to inflict severe psychological distress--is clearly
prohibited by the Task Force report. The report makes clear that psychologists
never: engage in, direct, support, or facilitate torture or cruel, inhuman, or
degrading treatment; use information from a medical record to the detriment of an
individual’s safety and well-being; mix treatment and consultant roles.
Psychologists have an ethical obligation to report such behaviors and are bound
by the APA Ethics Code in all their professional activities, regardless of whether
they identify themselves as “behavioral scientists” or some other term.1442
Behnke and Banks messaged privately once again on July 7, the same day as the London
bus bombings. Behnke queried whether anyone would question the ethical nature of
psychologists consulting on a police interrogation of a bombing suspect, even if “questioning
became stressful.”1443 Banks responded that the “use of force . . . is directly related to the
perceived importance of the threat,” so if a group believed that there was a “real risk of harm,”
the stress question is often “moot.” Banks found this troublesome and stated that it was of
“critical importance” to provide “clear guidance of the behavior of us all
[W[hat you and the
[task force] accomplished is far reaching.”1444 Behnke responded that he felt “privileged” to
have worked with Banks on this matter.1445
The Lewis article exchanges illuminate several points. First, one day after the PENS
report was released, the public’s call for specificity was apparent. Second, the PENS Report,
contrary to the Letter to the Editor statement, was not a document that provided “strict ethical
guidelines.”1446
The statement contradicted the belief among task force members that the report
was an “initial step,” especially the non-DoD members, who only signed off on the report
believing more steps were needed. It is inaccurate to call an “initial step” in a process a product
that provided “strict ethical guidelines” to psychologists in these settings. Though Banks
believed that using phobias would rise to the level of “cruel, inhuman, and degrading treatment,”
the report does not make clear that this is the case. In private conversations before and after the
Lewis article, Banks and Behnke recognized the ambiguity in the level of psychological distress
permitted. A statement about “strict ethical guidelines,” then, was misleading. Banks also noted
the need for clear guidance, but it appears he did not wish that guidance to come from the PENS
report.
Third, APA’s media strategy shifted and was clear from this point on: emphasize that
PENS said that psychologists could not engage in torture or cruel, inhuman or degrading
1442 APA_0040304.
1443 APA_0051056.
1444 Id.
1445 Id.
1446 Notably, Joseph Matarazzo emailed Behnke about the Lewis article to inform him that his “reading is
that DoD psychologists are not upset with the Task Force report.” APA_0040266.
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treatment and claim PENS as a strong, pro-human-rights document. The principal purpose of
PENS—to state that psychologists could in fact engage in interrogations consistent with the
Ethics Code—was relegated to the sidelines, since any message seen as pro-DoD or permissive
regarding the involvement of psychologists in interrogations was deemed bad media strategy in
light of the intense and quick criticism of PENS. And of course, the principal motivation for
Behnke and other APA officials in drafting PENS the way they did—pleasing DoD—remained
fully concealed. These were misleading public statements and this was a disingenuous media
strategy. A document that was intentionally very limited, non-specific, and evasive on the key
issue in order to, principally, please DoD, was now described principally as a strong anti-torture
and pro-human-rights document
For example, in response to an August 2005 Lancet article, APA wrote the following
response that refuted the article’s central claims:
[P]sychologists are always bound by the ethical responsibilities set forth in the
APA ethics code—regardless of the work setting and regardless of whether they
are referred to as psychologists, behavioral consultants or scientists, or some other
term. Our code of ethics always applies - no exceptions, including in settings
outside traditional therapeutic contexts
The APA Task Force report states
explicitly that psychologists have an ethical obligation to report evidence of
torture and other cruel, inhuman, or degrading treatment to appropriate
authorities, and that it is unethical for psychologists to use information from a
medical file to the detriment of an individual's safety and well-being.1447
In addition, APA sent a letter to Senator John McCain in support of his amendment to
ban torture or cruel, inhuman, and degrading treatment on detainees (more about the McCain
Amendment is discussed later in the report):
Our APA ethics code requires psychologists to respect the dignity and worth of all
individuals and to strive for the preservation and protection of fundamental
human rights
More recently, in June of 2005, the Council reaffirmed [APA’s
1986 Resolution Against Torture] and endorsed the [PENS report], again stating
that psychologists do not engage in, direct, support, facilitate or offer training in
torture or other cruel, inhuman, or degrading treatment. In fact, the Task Force
report further directed that psychologists have an ethical obligation to be alert to
and report any acts of torture or cruel or inhuman treatment to appropriate
authorities.1448
1447 Response from the APA to “A stain on medical ethics, Lancet (Aug. 6, 2005), available at
http://www.apa.org/news/press/statements/lancet-response.pdf (original article available at
4/fulltext?version=printerFriendly).
1448 Open letter from Anderson to McCain (Oct. 28, 2005), available at
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Also, in anticipation of a November 2005 Washington Post story regarding the various
professional organizations’ positions on interrogation settings, Behnke and Farberman drafted a
letter for Levant that touted APA’s strong stances against torture:
First, I want to emphasize that for over twenty years the American Psychological
Association's position on this issue has been clear and unwavering: It is unethical
for a psychologist to participate in torture or other cruel, inhuman, or degrading
treatment, under any circumstances, at any time, for any reason. There are no
exceptions. A state or threat of war, a national emergency, or a law, regulation or
order can never justify a psychologist's participation in any of these acts
Second, over and above not participating in torture or other, cruel, inhuman, or
degrading treatment, psychologists have an ethical responsibility to be alert to and
report these acts to the authorities. Third, consistent with both of these
statements, the American Psychological Association supports the McCain
Amendment.1449
APA also quelled members’ concerns with the PENS report by definitively stating that
certain techniques were banned in the report, though this was not the case. Take Farberman’s
reply letter to APA member (and future APA Petition Resolution leader) Ruth Fallenbaum in
November 2006:
It is our belief that there are two critical questions surrounding the interrogations
issue: (1) What is an ethical interrogation? and (2) What is the most effective
strategy to promote ethical interrogations? There is no disagreement within APA
regarding the first. All agree that ethical interrogations are based on building a
relationship and forming rapport, and that techniques that are abusive or coercive
(e.g., water boarding, sexual humiliation, use of phobias, temperature extremes,
stress positions) are inconsistent with this way of thinking and are both unethical
and largely ineffective. There is complete consensus within APA that these
techniques and techniques like them are never to be used.
Regarding the second issue, we believe there exists strong (but admittedly not
universal) support for a common goal: ethical interrogations that leave no room
for abusive or harmful techniques. Where there has been much debate is about the
best strategy to achieve this goal. APA has chosen a strategy of engagement
(unlike the psychiatrists, who have opted for a policy of disengagement).1450
1449 APA_0184298. The article was ultimately published without reference to this letter. Shankar
Vedantam, Medical Experts Debate Role in Facilitating Interrogations, Washington Post (Nov. 14,
dyn/content/article/2005/11/13/AR2005111300868.html. This language was also used in response to
another Neil Lewis article at the time as well as an article that Behnke authored in early 2006 for the
European Psychologist. See APA_0232260; APA_0232746; see also Neil Lewis, Guantanamo Tour
Focuses on Medical Ethics, New York Times (Nov. 13, 2005), available at
1450 APA_0088453.
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Farberman noted a “complete consensus” with the idea that certain techniques like stress
positions were always unethical. This is not true, as we saw in our interviews with Banks,
Behnke, and Shumate, who would not definitively bar the use of certain stress positions.1451
In addition, other public statements and member communications stressed that APA
could not be expected to be more detailed than it had been: APA needed to be respectful that the
issue was complicated, they did not have all the facts or context necessary to make ethical
judgments, that the issue needed more time to develop, and that the task force report was just
initial step.1452
At other times, APA said that they were just following the will of a diverse group
of task force members who had adopted the report in either a unanimous or consensus fashion,
and the diversity of the group (which included a minority of non-DoD members, some of whom
had lobbied strenuously and unsuccessfully for stronger human rights protections) proved how
reasonable the report and APA policy was.1453 Behnke often reached out to the six DoD
members of the task force as well to echo these talking points; he did not reach out to the non-
DoD members in the same way.1454 In all instances, this conciliatory language from APA
appeared to diffuse any potential criticism rather than address issues head-on in the aftermath of
PENS.
3.
Listserv discussions
The non-DoD PENS members raised additional concerns about the report in the days
after its release. Behnke tried, through himself and Moorehead-Slaughter, to alleviate these
concerns in an effort to salvage the report and task force as a whole.
Thomas raised to the task force listserv on July 7 the additional internal chatter with APA
groups critical of the PENS report.1455 On July 8, Behnke sent Moorehead-Slaughter a draft set
of talking points for task force members regarding responses to criticism.1456 Moorehead-
Slaughter forwarded the points to the PENS listserv. The note outlined six different points to
1451 Behnke and Banks’s “safe, legal, ethical, and effective” analysis of stress positions are discussed
earlier. When asked whether sleep deprivation or stress positions were unethical, Shumate did not
directly answer the question. We asked Shumate if his opinion would change if everyone on the task
force, including the DoD members, thought that sleep deprivation were unethical. Shumate responded
that he would be willing to “have a discussion” about it but did not commit to an answer. Shumate
interview (June 24, 2015).
1452 See, e.g., APA_0060614 (June 2006 exchange between Behnke and Phil Zimbardo regarding
Zimbardo’s thoughts on the PENS Report where Behnke underscores the need to be deliberate with these
complicated topics).
1453 See, e.g., APA_0051064; see also PENS listserv (July 8, 2005) (draft message from Behnke to
Moorehead-Slaughter, and a message from Behnke himself on the PENS listserv, underscoring the
diversity of the task force, among other issues).
1454 See, e.g., APA_0087216 (Behnke emailing six DoD members with talking points for upcoming
Salon.com article).
1455 PENS listserv (July 7, 2005). See, e.g., APA_0040293 (Leonard Rubenstein’s letter on behalf of
Physicians for Human Rights).
1456 APA_0051064.
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combat critiques: (1) encourage people to read the report; (2) note the report was a document
produced in “good faith” by people from diverse perspectives; (3) explain that the report, “like a
good ethics code—is not a list of prohibited activities;” (4) compare the statement with the draft
position of the American Psychiatric Association; (5) dismiss supposed first-hand observations
on the listserv since task force discussions were private; (6) clarify that the report was the
“beginning of the process.”1457 Thomas summarized APA members’ concerns on July 8—
namely, that the document offered “too much wiggle room” for unethical behavior in the
national security context.1458
Thomas also alluded to the just-published Jane Mayer New Yorker
article and increased concern of psychologists being present in abusive interrogation settings.
Thomas added that it was “ a troubling article to read and I find it difficult to dismiss as
exaggerations, misrepresentations, or some such. I am sure there will be further calls to address
these issues from Council and the membership.”1459 Banks later emailed that the article
misquoted him several times and left him “dumbfounded.”1460
Thereafter, Behnke also responded on the listserv on July 8—as himself, not through
Moorehead-Slaughter—and reiterated the good work of the task force and the nature of ethics
codes that do not normally list specific acts as prohibited. He also noted the process an “initial
step” and that this “continuing” process would be “written about for many years to come.”1461
Behnke separately emailed Levant, Koocher, Anton, and Farberman on July 10 about these
critiques. He mentioned that writing the casebook “will be very important and serve useful
political purposes as well.”1462
Arrigo emailed the group on July 9 and highlighted her concerns about the composition
of the task force.1463
In particular, she noted her concerns with the majority DoD members of the
task force. Koocher challenged each of Arrigo’s points on July 10—yet another example of
Koocher retorting Arrigo’s comments on the listserv.1464
On July 16, James tried to quell additional concerns Thomas raised on the listserv from
Bloche and Marks’s latest New England Journal of Medicine article regarding the use of medical
records. James remarked that medical records were “strictly off limits” for anyone involved in
interrogations,1465 although the PENS report explicitly allowed access to detainee medical
records (although not for improper uses), Banks had made it clear that he wanted psychologists
to retain that access (to help protect the detainee’s health, he said) . This was not always the
reality at Guantanamo Bay, where BSCT psychologists apparently had access to the records until
1457 Id.; see also PENS listserv (July 8, 2005).
1458 PENS listerv (July 8, 2005).
1459 Id.
1460 PENS listserv (July 11, 2005).
1461 PENS listserv (July 8, 2005).
1462 APA_0040171.
1463 PENS listserv (July 9, 2005).
1464 PENS listserv (July 10, 2005).
1465 PENS listserv (July 16, 2005).
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at least October 2006., as discussed earlier in the exchange between Behnke and BSCT member
Carrie Kennedy.Arrigo asked for an update on July 18 on whether a casebook, as discussed
during the PENS meeting, was still being planned. Moorehead-Slaughter, at Behnke’s behest,
confirmed that the casebook was agreed on in the recommendations section of the PENS
report.1466
As discussed later, the work of the casebook shifted to the Ethics Committee and then
died.
On July 26, 2005, off of the listserv, Behnke sent a response to Bloche after he inquired
about speaking with Fein and Shumate. Behnke noted Bloche’s voicemail to him regarding the
PENS report and stated that the report located itself as an “initial step” in a “continuing process.”
Bloche responded back and said that the report takes some “well-defined stands on a number of
issues.”1467
Behnke responded that the process was still moving forward:
[F]ar from attempting to cut off debate or discussion, or attempting to locate
expertise as residing solely within itself--the task force has handed its work over
to a broader audience and invited (recommended) authoritative commentary from
groups that very likely will be composed of psychologists with no military
background. I think that's an interesting move. . . most such groups work to limit
what input other bodies have, in an effort to retain control over their work, and
resist any attempts by others to assert their expertise. This task force did exactly
the opposite (and built in a mechanism to ensure that would happen). It will be
very interesting to see what the Board of Directors does.1468
By July 29, Thomas sent her strongest email yet about her disappointment over the PENS
Task Force. After another Lewis article in the New York Times detailed how the military’s own
lawyers raised concerns over the use of harsh interrogation tactics and the need for human rights
standards, Thomas that she was “all the more sad” that neither she, Arrigo, or Wessells were
unable to insert a more “stringent standard for holding psychologists to account” in the PENS
report.1469
She lamented that the media reports have made her unable to “feel sanguine about our
work as having adequately addressed the concerns of our members (or my own for that
matter).”1470
Moorehead-Slaughter responded, likely with Behnke’s input,1471 to Thomas’s email by
explicitly stating the military’s clear opposition to adding human rights standards in the PENS
report:
1466 APA_0050805; see also PENS listserv (July 25, 2005).
1467 APA_0050842.
1468 Id.
1469 PENS listserv (July 29, 2005).
1470 Id.
1471 We did not locate a specific draft email from Behnke to Moorehead-Slaughter in this instance. But
the wording of the message, coupled with Behnke’s near-universal drafting of Moorehead-Slaughter’s
other messages, make it highly likely that Behnke also drafted this message.
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[O]ur colleagues from the military were clear that including [human rights]
standards in the document would likely (perhaps definitely) put the document at
odds with United States law and military regulations. The effect of such a
conflict, it seems to me, would be that the military would simply have ignored the
document--thus, the community that we would most want to reach would have
been prevented from using the report. Of course the document is a compromise--
but it's a compromise that has ensured that our voice is present to and heard by the
psychologists doing the work and their superiors.1472
James separately emailed the group on July 29 and stated that he was “proud of the
document” and that he felt “better in [his] heart about the work that psychologists did at GITMO
and Abu Ghraib.”1473
On July 30, Koocher weighed in on the recent media reports and Thomas’s points on
human rights standards. Koocher does not mince words about his disdain for documents such as
the Geneva Conventions and the U.N. Convention Against Torture, noting that he had “zero
interest in entangling APA with the nebulous, toothless, contradictory, and obfuscatory treaties
that comprise ‘international law.’”1474
Likewise, Shumate emailed the PENS listserv on August 11 to express support for
Behnke and Koocher on behalf of the DoD:
There will no doubt be counter claims that you unabashedly support the military
psychologists, yet I believe that what you are truly supporting is the profession and the
psychologists that adhere to the ethical guidelines that are at the basis of our profession. We in
the Department of Defense applaud your support of the profession and in turn us.1475
4.
Notable military/government conversations
Elsewhere, Mumford sent Hubbard and a group of government officials an email on July
5 about the PENS Task Force.1476 The email included several other government officials that
Hubbard had messaged in mid-June about his retirement from the CIA and his new job
consulting for Mitchell Jessen & Associates. Mumford stated that he “wanted to semi-publicly
acknowledge [Hubbard’s] personal contribution as well as those of [Kirk Kennedy] and Andy
Morgan in getting this effort off the ground over a year ago,” alluding to the July 2004 meeting
that all three attended.1477
Mumford continued to say that “your views were well represented by
very carefully selected Task Force members (Scott Shumate among them).”1478 Mumford added
1472 PENS listserv (July 29, 2005).
1473 Id.
1474 PENS listserv (July 30, 2005).
1475 PENS listserv (Aug. 11, 2005).
1476 APA_0221161.
1477 Id.
1478 Id.
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that Brandon “helped craft language related to research.”1479 Hubbard speculated to Sidley that
Mumford’s “well represented” comment referred to Hubbard’s view that it was appropriate for
psychologists to be in interrogation settings.1480
Shumate implied to Sidley that he and Hubbard
knew that they did not share the same views on this, saying that Hubbard was probably doing the
equivalent of “turning over in his grave” when he saw this.1481
Behnke reiterated to Sidley that his message to Board member Jessica Henderson Daniel
on August 8 encapsulated his thinking immediately after the PENS report’s release.1482 In that
message, Behnke expressed gratitude for Daniel’s supportive words on the report and his view
that psychologists had an ethical role to play in national security settings:
It's important that we move forward with an understanding of the issues in their
complexity and nuance. I continue to feel strongly that we have a solid,
thoughtful, and balanced report, and that APA should be PROUD of the very
important contributions psychologists have to make in these difficult and
challenging times, when we work within clear ethical guidelines.
I've made this point before, but--should our country suffer another attack, could
we really imagine APA taking the position that psychologists, even though
experts in human behavior, have no ethical role to play in contributing to the
information-gathering processes, to assist in preventing further loss of innocent
life?1483
We note that Behnke framed the issue based on the concern about public safety and the
potential for another attack. Banks later in 2006 emailed Behnke that framing one’s position
based on public safety was the key to winning the argument, because it was very difficult for
anyone to be against protecting public safety (“All those against safety please stand up”).1484
On August 9, Dunivin praised Behnke and Newman for their leadership on PENS. After
discussing the “potential landmine” of an ethics and national security panel at APA Convention,
Dunivin gives a “HUGE THANKS” to them on the PENS Report. Dunivin wrote of the positive
effect the report had with the Army Surgeon General:
Confidentially - The report of the PENS Task Force has enabled the Army
Surgeon General to move forward with interim guidance and doctrine on
functioning of the behavioral science consultants to this process. Until that's
released, it's close hold, even that it's being don[e], but I wanted you to know
1479 Id.
1480 Hubbard interview (May 15, 2015).
1481 Shumate interview (June 24, 2015).
1482 Behnke interview (June 8, 2015).
1483 APA_0041516.
1484 APA_0088369.
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what an important contribution your timely intervention has made already. It will
be well-worth the heat coming up at convention, and beyond.1485
Banks emailed the PENS listserv on August 12 with a similar note, explaining that he,
James, Dunivin, and others met with Army Surgeon General Kiley for a full day to try “to
establish the doctrinal guidelines and training model for psychologists performing this job. The
TF report provided, again, a solid anchor to use in our deliberations.”1486
Ultimately, the full PENS report was appended to the first MEDCOM BSCT policy
memorandum in October 2006.1487 The report itself stated that a BSCT’s purpose was to “assist
the command in conducting safe, legal, ethical, and effective detention operations, intelligence
interrogations, and detainee debriefing operations.”1488
This language has appeared in all
subsequent BSCT MEDCOM memoranda, including the most recent one issued in 2013.1489
Kiley told Sidley that he was not sure what the military would have done if APA had fully
barred psychologists in BSCT settings.1490 To Kiley, the BSCT psychologists kept interrogations
safe; he expressed these views to people at APA and believed APA understood the role of BSCT
psychologists.1491
Newman emailed Behnke on August 12 with his thoughts on the PENS report and his
general view on the utility of psychologists in interrogation settings.1492
Newman remarked that
1485 APA_0050474. Behnke responded with his agreement that the convention panel could be a "festival
of mischief" and commented that getting “to know and work with Morgan [Banks] has really made it all
worth it--what a great guy.”
1486 PENS listserv (Aug. 12, 2005). We interviewed Kily, Banks, and Dunivin about this August 2005
meeting in the Surgeon General’s Office, which some described as an internal “summit” on the issue.
Banks said that Kiley had convened an informal gathering of people in early 2005 on the need to provide
formal guidance from the U.S Army Medical Command (“MEDCOM”), which Kiley headed as Army
Surgeon General, to BSCTs in the field. The August 2005 meeting was an opportunity to spend several
hours with Kiley and his team and understand the kind of guidance that was needed. Dunivin told Sidley
that there was a debate during the meeting about the differences between military ethics and medical and
pychological ethics and that she advocated the need for more formalized trainings. Banks interview (May
21, 2015); Dunivin interview (May 20, 2015).
1487 Previous Standard Operating Procedures for BSCTs existed after 9/11, but this was the first official,
unified policy from MEDCOM.
1488 Behavioral Science Consultation Policy, OTSG/MEDCOM Policy Memo (Oct. 20, 2006), available
1489 Behavioral Science Consultation Policy, OTSG/MEDCOM Policy Memo (May 8, 2013) (on file with
Sidley). Another broader DoD Directive first included the mention of Behavioral Science Consultants in
November 2005. A member of the Joint Personnel Recovery Agency messaged Behnke, Banks,
Shumate, Gary Percival and Carroll Green and stated the following: “Thanks to all for your hard work,
we are now in an official [DoD Directive].” APA_0046024; APA_0046025.
1490 Kiley interview (June 4, 2015).
1491 Id.
1492 APA_0050376.
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one of “my interests” in having psychologists present in national security settings was because he
believed “it is a very good example of psychologists as ‘experts in behavior’ (rather than simply
mental health or health professionals), bringing to the activities, skills and competencies that
other professionals just do not have.”1493 He explained further that BSCT psychologists had
“two very clear and specific unique contributions” that could make interrogations “safe, legal,
ethical, and effective”: (1) their role in preventing behavioral drift, and (2) their contributions to
“effective information-gathering,” such as rapport-building.1494
Whether Newman’s “interests” were his alone, or in concert with his wife, is of course
unclear. But Newman would have a clear interest in arguing for the presence of BSCTs and the
unique contributions they make since Dunivin was a BSCT psychologist. In addition, the
substance of Newman’s comments underscore the inherent conflict, as discuss previously, of the
role of a BSCT psychologist on one hand serving as a “safety officer,” but on the other hand
playing a key role in the “effectiveness” of an interrogation. Here and during the PENS
meetings, Newman did not hone in on this conflict since he wanted to maximize the role that
BSCT psychologists could play—both because of his wife and because of his general outlook at
growing the profession of psychology.
Behnke responded to say that he appreciated Newman’s comments and noted the need
to “move the debate from whether psychologists should be involved in interrogations to how
they may do so ethically.”1495 He cited language from both Division 48 and the Physicians from
Human Rights that suggested support for his position. Behnke described the same how/whether
framework for Levant on August 13 ahead of Levant’s APA presidential address at APA Annual
Convention.1496 Behnke engaged with Bloche about the PENS report in late August 2005 as
well. Before his scheduled joint appearance with Bloche on an NPR affiliate on August 25,1497
Behnke coordinated with Banks and James about what he should say.1498 Behnke specifically
raised Bloche’s critique of Statement Three in the PENS Report—namely, that the statement did
not bar the use of medical information for crafting an interrogation strategy for a detainee.
Behnke suggested that future commentary on the statement (presumably referring to the
casebook) could definitively bar this possibility. James stated that “regardless of what the task
force report” said, the current Army regulations “strictly prohibit[ed] the use of medical
information from medical records.”1499 Behnke later forwarded Bloche’s message after their
joint appearance to both Banks and Gelles.1500 Bloche’s message indicated how “disheartening”
the report was and he implored Behnke to withdraw the report. He recommended that APA
1493 Id.
1494 Id.
1495Id. (emphasis in original).
1496 APA_0041230.
1497 An active link to this interview is no longer available. But Behnke referenced the interview would
take place on August 25 in internal correspondence. See APA_0042319.
1498 Id.; APA_0042240.
1499 APA_0042240.
1500 See APA_0042319; APA_0050013.
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follow the model of the Institute of Medicine and seek “broad representation, public
presentations to the panel, public discussions, and a final document thoroughly vetted by an
independent review process.”1501 Gelles told Behnke that Bloche had “an agenda.”1502 Banks
rejected Bloche’s comments and thanked Behnke for his work: “thanks from lots of us for what
you are doing [] (Just remember to wash your hands when you are done.).”1503
5.
Responses to Physician for Human Rights and Division 48
On July 15, Leonard Rubenstein on behalf of Physicians for Human Rights (“PHR”) sent
Behnke and Levant a letter outlining the group’s concerns with the PENS report. The letter
specifically noted the report’s lack of prohibitions in participation in “highly coercive
interrogations,” lack of adherence to international law “regardless of the interpretation of that
law by military authorities,” and its lack of adequate protections on confidentiality.1504 Behnke
sent Rubenstein a formal response on August 12, as discussed below.
By July 24, the Executive Committee of APA’s Division 48 released their “Statement
Concerning the Use of Torture with Prisoners.”1505 The statement was forwarded to Levant and
APA Board by July 26. The statement identified five specific calls to action:
1. Issue a clear statement against the use of inhumane, degrading, or coercive
interrogations and the use of torture either physical or mental in the interrogation of
prisoners.
2. Acknowledge, based on the U.N. Convention Against Torture, 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.
3. Publicize both within and outside of APA the 1986 resolution concerning human
rights and torture.
4. Issue a clear statement against the direct or indirect involvement of psychologists in
inhumane, degrading, or coercive interrogations including interrogations involving
the use of either physical or mental torture.
5. Finally, in light of the evidence implicating psychologists in the use of coercive
interrogations and torture at Guantanamo Bay , the Executive Committee of Division
48 calls on the leadership of APA to pursue through whatever organizational and
legal means possible an investigation of these charges.1506
Koocher asked then-Division 48 President Eileen Borris what the group meant by
“coercive interrogation,” since certain evaluations or interrogations, Koocher explained, might
1501 APA_0042319; APA_0050013.
1502 APA_0050013.
1503 APA_0042319.
1504 APA_0232100.
1505 APA_0039817; APA_0039818.
1506 APA_0039818.
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be permissible but have elements of coercion to them. Koocher clarified that he was “obviously
referring ONLY to verbal questioning that does not involve threat of physical harm, etc., but
where non-cooperation will have adverse effects (e.g., prolonged detention, denial of parole,
etc.).”1507
Behnke wrote Levant and Farberman that Division 48’s statement showed a
“remarkable degree of overlap with the PENS report” and that, save for the call to investigate
wrongdoers, the two could be read “almost as companion documents.”1508 Behnke later told
Kelly that the statement could be “to our benefit.”1509
On August 10, 2005, Shumate provided thoughts to Kelly on the term “coercive” (likely
in response to Division 48’s and PHR’s letters that use the term). Behnke and Mumford used a
response from Shumate (which Kelly forwarded to them) to form a potential response for
Division 48 and others within APA. The draft statement used Shumate’s language to make the
point that interrogations by its “very nature is coercive . . . The important point . . . is that the
more coercive the approach, the less confidence one can place in the information gathered. And
the point of interrogation is to gather information one can place a high degree of confidence
in.”1510
In a separate communication on August 11, also likely in light of Division 48’s and
PHR’s letters to APA, Behnke emailed Shumate about “to what extent” the Geneva Conventions
and Convention Against Torture conventions “now govern detainee interrogations.”1511 Shumate
responded that “all interrogators are trained and reminded that they have to adhere to the Geneva
Conventions and the Torture Convention.” Behnke then responded that others believe the
conventions do not apply and inquired whether Shumate had authority that cites the “obligatory
nature” of Shumate’s statement.1512 Shumate responded that there may open source documents
available as well statements from Secretary Rumsfeld himself about this. During a separate
conversation on the same issue between Kelly and Banks, Banks sent Kelly (who later forwarded
to Behnke) a copy of Army Regulations 190-8, which governed the treatment of detainees.1513
Also on August 12, Behnke sent a response to the mid-July letter from the PHR regarding
their concerns with the PENS report, but only after coordinating and pre-clearing the response
with Banks.1514 After Banks noted Behnke’s “thoughtful response to an unfair attack,” the two
sang each other’s praises. Banks noted that, after a recent media appearance with Behnke that
1507 APA_0178933. The Division ultimately did respond to Koocher’s request with its understanding of
coercive interrogation and what techniques could be “coercive.” HC00011901.
1508 APA_0050851.
1509 APA_0027847.
1510 APA_0128827.
1511 APA_0041376.
1512 Id.
1513 APA_0027787.
1514 APA_0041304.
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Banks perceived as unfair, Behnke was his “hero” and to not “let the bastards get you down.”
Behnke responded that if he was “ever in a foxhole, I hope you’re in there with me!”1515
Behnke also sent the letter to Gilfoyle, Farberman, and Levant at APA.1516 Echoing his
comments to Newman the same day, Behnke wrote that PHR believed the “issue is not whether
psychologists may participate in interrogation processes, but rather how they may do so in an
ethical manner.”1517
Behnke rejected PHR’s concerns that the report (1) did not directly address
the permissibility of interrogation techniques that caused severe harm, and (2) did not bar the
military’s views of permissible techniques from trumping international law. To the first point,
Behnke stated that the report “speaks directly to and prohibits psychologists' involvement in any
activity that can cause severe and long-lasting harm.” To PHR’s second point, Behnke stated
that the report “prohibits psychologists’ involvement in any activity that constitutes torture or
that violates domestic law, and that a military authority indicating that such activities are legal
would not thereby make participation for a psychologist ethical.”1518 As discussed previously,
however, the report does leave open the issues PHR raised because of the lack of specificity in
the document and the use of Standard 1.02 that could permit a psychologist to follow an
otherwise-unethical military command.
After Levant sent Division 48 a response to their initial letter in late July, Division 48
sent another letter on August 13 that reiterated their action items, including the need to
investigate psychologists involved in wrongdoings at Guantanamo Bay where possible.1519
Behnke thought that “98%” of the document aligned with PENS.1520 His biggest concern was
with the term “coercive,” which he explained could include many legitimate interrogations. He
raised these concerns with Shumate before, as discussed above. Behnke thought APA should ask
Division 48 for their own definition of coercive or offer one, such as “the intentional use of any
technique that would cause severe or lasting pain, suffering, or distress.”1521 He sent this
message to Levant, Newman, Farberman, Gilfoyle, and Judy Strassburger (now Judy
Strassburger Fox).
On August 13 and 14, Behnke also exchanged separate emails with Banks and Gilfoyle
about his draft response to Levant on Division 48’s statement on torture and its definition of
“coercive.”1522
Behnke’s email to Banks suggested that the two conversed on the telephone
about whether Banks had any concerns with Behnke’s draft response to Division 48. Banks later
messaged Behnke that he would be “uncomfortable” with the use of coercion in any final
resolution since many police and military interrogations have some level of coercion to it; he
1515 APA_0041338.
1516 APA_0041304.
1517 APA_0232095.
1518 Id.
1519 APA_0041208; APA_0041209.
1520 APA_0050331.
1521 Id.
1522 APA_0050314.
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added that “most of the folks I work with would be VERY uncomfortable with using the term
coercion.”1523
Gilfoyle worried about setting definitions now and the potential fallout from it.
Referencing Behnke’s proposed definition of “coercion,” she wrote, “I worry about that
definition in terms of giving those who think any discomfort is unethical something to shoot at
and thus would rather save that for the commentary.”1524 She added that having Division 48
offer their own definition could also raise problems if it was a “very wide definition that we will
then have to try to scale back.”1525 Behnke agreed but thought that supporting Division 48’s calls
to action would be beneficial; he noted the “(substantial) upside to having Council do
something—if the ‘something’ doesn’t create problems.”1526
Behnke claimed in his interview with Sidley that he believed it was positive for Council
“to be involved and active,” and that his comments started a “theme” for him where he thought
increased Council involvement on national security issues was a “good thing.”1527 In light of his
extensive efforts to manipulate and obstruct Council actions and his behind-the-scenes
commentary and coordination with DoD officials about this, detailed below, we found this
statement not credible.
Gilfoyle later raised the potential conflict with Division 48’s “coercive” definition and
the PENS Report statements. As she noted, if the “coercive” standard was a “lower threshold”
than what is outlined in the PENS Report, then that term would need to undergo review by the
Ethics Committee.1528 She suggested it might be better not to have Council act specifically on
any of Division 48 statement’s for now.1529 Behnke incorporated Gilfoyle’s edits and sent his
draft response again to both Gilfoyle and Banks for review the evening of August 14.1530
Behnke sent his statement to Levant and Farberman, who both cautioned against posting
the statement ahead of the Council meetings, particularly since it was not clear whether the
Division wanted to submit their calls for actions as New Business Items.1531 The group agreed
that they would monitor how discussions would arise during Council meetings.1532
1523 APA_0050307.
1524 APA_0515918.
1525 APA_0041207.
1526 APA_0050314.
1527 Behnke interview (June 8, 2015).
1528 APA_0041205.
1529 APA_0041203.
1530 APA_0050302; APA_0050303.
1531 See APA_0050286; APA_0042635.
1532 See APA_0050286.
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6.
Council actions and Standard 1.02
In the end, Council was formally presented with the PENS report and passed eleven
motions related to it during its August 17 and 21, 2005 meetings1533 at APA’s annual
convention.1534
The first seven motions arose from the report’s Recommendations section,
which included the need for the Board to allocate funds for a casebook (which the Board did in
February 2006) and a call for comments on the report through the end of 2005 before the
casebook project began.1535 In addition, Council passed four additional motions: (1) an
instruction to the Ethics Committee to explore adding human rights language in to APA Ethics
Code Standard 1.02 (which the Ethics Committee completed by late September 2005 and
recommended not to add the language, as discussed below);1536 (2) a statement that there are “no
exceptional circumstances whatsoever” to justify torture, included the “invocation of laws,
regulations, or orders;” (3) publication of APA’s 1986 resolution against torture; and (4) referral
to the Ethics Committee of any specific allegations of abuse from psychologists at Guantanamo
Bay and elsewhere.1537
Behnke separately messaged Banks an update on the Council's motions and noted that
“[g]iven what looked possible Tuesday night/Wednesday am, I'm very pleased with Council's
final action, which left both the Report and the commentary-writing process completely
intact.”1538
Dunivin messaged Behnke separately and praised his efforts during the Council
meetings as well.1539 Farberman told Sidley that Dunivin called her during the APA Convention
to discuss media-related issues. Dunivin conveyed to Farberman the need to stay the course and
place BSCTs in a “positive light” in APA’s communications efforts, Farberman said. She said
she found the communication uncomfortable and speculated that Newman shared her cell phone
number with Dunivin since few people were aware of her number.1540
By September 1, Moorehead-Slaughter declared the group would reconvene in early 2006
once the call for comments on the PENS report was completed by the end of 2005.1541 On
1533 Approved Minutes of the Council (Aug. 17 & 21, 2005) (on file with Sidley).
1534 The 2005 APA Convention also featured a panel led by Robert Kinscherff titled, “Ethics on the
Frontlines: Psychology, Behavioral Science, and National Security.” The panelists included Kinscherff,
Gelles, Andy Morgan, and Behnke. See APA_0041612. Behnke began planning the panel in late 2004
after the July 2004 meeting among APA and government and intelligence participants. The panel was
briefly discussed on the PENS listserv, and noted that there were strong opinions from many in the
audience and that Behnke resisted calls to reveal the names of the task force members at that time. See
PENS listserv (Aug. 22, 2005).
1535 Approved Minutes of the Council (Aug. 17 & 21, 2005) (on file with Sidley).
1536 APA_0049824; APA_0049825.
1537 Approved Minutes of the Council (Aug. 17 & 21, 2005) (on file with Sidley).
1538 APA_0050228.
1539 APA_0050224.
1540 Farberman interview (May 19, 2015).
1541 PENS Listserv (Sept. 1, 2005).
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September 8, the Council listserv received a call for questions and comments on the PENS
report.1542
On September 6, 2005, Shumate emailed Behnke to schedule a time to meet on the PENS
report about issues that “potentially concern[ed]” him related to the Council’s motions.1543
Alluding to Council’s call to review and amend Standard 1.02 to possibly include human rights
language, Shumate specified in his message about the “broad inclusion about human rights”
being confined only to issues of DoD or Guantanamo Bay , as well as the issue of following
“orders.” Behnke and Shumate met on September 8, 2005 to discuss these issues.1544 Behnke
and Shumate said they could not recall the substance of the meeting.1545
On September 27, less than three weeks after Behnke’s meeting with Shumate, Behnke
and the Ethics Committee circulated a two-page document to Gilfoyle and Childress-Beatty
rejecting the suggestion that APA incorporate human rights standards within Standard 1.02, per
one of Council’s August 2005 motions.1546 The Ethics Committee document concluded that
APA’s current policies and pronouncements “provide[d] sufficient guidance to members at the
immediate present time.”1547 The document then recommended, in several rhetorical lines, that
the Ethics Committee be given more time to review the proposal:
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.1548
1542 APA_0081374.
1543 APA_0081254. Previously, Shumate had messaged Kelly who suggested he reach out to Behnke with
his concerns. See APA_0128752. Council passed a motion instructing the Ethics Committee to explore
adding language to Ethical Standard 1.02 to ensure that that provision could only be used in a manner
“consistent with basic principles of human rights.” That provision (as revised in 2002) provided if there
was a conflict between a psychologist’s ethical obligations and her obligations under the “law,
regulations, or other governing legal authority” (which included military orders), she had to try to resolve
the conflict, but if she could not, she could follow the “law, regulations, or other governing legal
authority” without committing an ethical violation. The Introduction to the APA Ethics Code (which was
not binding) repeated this language of 1.02 and added the phrase, “consistent with basic principles of
human rights.” Council’s motion required the Ethics Committee to make a recommendation about
whether to revise 1.02 by adding the language in the Introduction.
1544 APA_0081254.
1545 Behnke interview (June 8, 2015); Shumate interview (June 24, 2015).
1546 APA_0049824; APA_0232905.
1547 APA_0232905.
1548 Id.
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The document then cited to the casebook project as an another reason to delay any
finding from the Ethics Committee. And it further stated that there were “several provisions in
the Ethics Code to sanction psychologists” who engaged in abusive actions, without ever citing
any standards in the PENS Report (perhaps the document thought of Standard 3.04, but as
discussed before, there is flexibility in how this standard is interpreted). These assurances of
deeper analysis in to amending Standard 1.02, however, were hollow. There is little evidence
that Behnke or the Ethics Committee ever took concrete steps to fully address these concerns
over the standard until the entire Ethics Code was revised by 2010. In fact, Behnke engaged in
various delay tactics for years after to obstruct efforts to amend Standard 1.02, discussed in a
later section of this report.
B.
Casebook failure: January 2006-February 2006
1.
Wessells’s resignation from task force
Moorehead-Slaughter (again, through a previously-drafted Behnke message) emailed the
PENS listserv on January 11, 2006 to reconvene the group to start work on a casebook and
commentary in conjunction with the Ethics Committee.1549 The message also noted that APA
had extended the deadline to accept comments on the PENS report through the end of June 2006.
On January 16, Wessells messaged the listserv to resign from the task force out of
“ethical concerns”:
I have decided to step down from the PENS Task Force because continuing work
with the Task Force tacitly legitimates the wider silence and inaction of the APA
on the crucial issues at hand. At the highest levels, the APA has not made a
strong, concerted, comprehensive, public and internal response of the kind
warranted by the severe human rights violations at Abu Ghraib and Guantánamo
Bay. The PENS Task Force had a very limited mandate and was not structured in
a manner that would provide the kind of comprehensive response or
representative process needed.1550
Wessells resignation, as discussed below, spurred discussions of bringing non-task force
members into the casebook process and opened the door for Shumate, in particular, to raise
concerns over DoD review of a potential casebook.
Several of the PENS listserv participants, notably from first-time listserv participants
Levant and Kelly, urged Wessells to reconsider his decision and outlined APA’s future steps in
this area.1551
Behnke also emailed Wessells separately to reevaluate his decision.1552 Wessells
said he appreciated APA’s efforts but remained unmoved.1553 In an email conversation among
1549 APA_0053624; APA_0082271; PENS listserv (Jan. 11, 2006).
1550 Id. (Jan. 15, 2006).
1551 PENS listserv (Jan. 16, 2006).
1552 APA_0053503.
1553 PENS listserv (Jan. 17, 2006).
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Anderson, Behnke, Gilfoyle, and Farberman on January 17, both Gilfoyle and Farberman raised
the PR concerns that APA might face with Wessells’s resignation. Farberman also raised the
need to bring in other voices in the casebook process:
I strongly agree that this could be a big PR problem for us, especially in light of Nina's
agreement with Mike's thinking. (Hopefully she won't also abandon the process)
I see it as
even more critical now that additional players be brought into the case book process. Mike's
resignation will clearly add fuel to the demands of the social justice coalition that more voices be
added to the process. I fear that the remaining PENS group will have no credibility with a vocal
segment of our membership.1554
Wessells further explained his thoughts on the PENS process and his ultimate resignation
to Sidley. To Wessells, the key issue during the PENS process was defining the appropriate
limits of psychologists’ roles in detainee interrogation settings. While all the members were
“horrified” by the abuses at Abu Ghraib, Wessells noted, the majority of members wished to
defer to what techniques were permitted in the existing military regulations without further
discussions.1555
Only the most extreme techniques were deplored by everyone at the table,
Wessells said, such as extreme beatings or extreme freezing of prisoners, but other methods were
not fully discussed. Wessells sensed that Banks, with significant agreement from others in the
room, wanted to have the flexibility to conduct actions that were permissible under military
regulations but that might be viewed as unethical in Wessells’s mind.1556 For example, Wessells
recalled that he had inquired about permissible techniques like sleep deprivation and whether and
how the technique was used in concert with other techniques and over certain periods of time; he
recalled never receiving a direct answer to these questions.
To alleviate his concerns, however, Behnke and others told Wessells that a casebook
would specifically address these outstanding issues immediately after the PENS report was
released—within six months, in fact. By August, however, Council had passed a resolution
related to the PENS report that there would be an open call for comments on the report through
the end of 2005 before the casebook process started. But Wessells described it as “foot-
dragging” that Moorehead-Slaughter did not send her email until January 2006 and noting that
comments to the report were extended until June. Taken together, Wessells decided to resign
because he believed APA and the task force was ultimately content with having the PENS report
serve as a standalone document without serious consideration of specific examples.1557
2.
Shumate’s casebook concerns, other DoD members follow
Soon after Wessells resignation, several DoD task force members raised bureaucratic and
confidentiality concerns that could preclude the use of publishing interrogation case examples.
Shumate first raised the issue with Behnke on January 19 and how Wessells’s resignation
afforded an opportunity to “gracefully shift gears”:
1554 APA_0082171.
1555 Wessells interview (June 11, 2015).
1556 Id.
1557 Id..
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[A]ny product like a case review book would have to undergo a security and
Counterintelligence review throughout the Department
The process would be
long and difficult, not impossible, but there would be serious redacting of the
manuscript in fear of publishing Source and Methods
At the time of the
PENS, I wish I would have thought about this when the topic came up (case
book), but I was so excited and pleased by the PENS process, I lost sight of the
review process. My guess, is that APA would not be willing to allow DoD to
review such a product. In fact, as a psychologist and APA card carrying member,
I would question how objective the case book was if it had undergone a security
and CI review by the Department
We have before us, if I am seeing this
correctly, an opportunity to gracefully shift gears here
I have split loyalties, I
need to protect the Department while I also want to protect APA and most
importantly the wonderful work that the PENS task force has been able to
accomplish to date.1558
Shumate later summarized his concerns, with Behnke’s drafting help,1559 on the PENS
listserv on January 23 and recommended that the Ethics Committee lead the case book
process.1560
Shumate’s listserv message did not mention the “split loyalties” he had mentioned
to Behnke between the DoD and APA. On the eve of sending this message to the listserv,
Shumate speculated to Behnke that Wessells may have tried to deliberately undermine the PENS
process. But, Shumate added, “it also works well for us.”1561 Shumate also alluded to pressures
Wessells and others may face in writing the case book: “The pressure he may or may not be
feeling from various sectors is the exact reason why I am concerned about the case book, while
also recognizing that DoD will tolerate only a certain amount of public release.”1562
In addition, Shumate told Behnke that he would alert Banks of his message on the listserv
in order “to get his second so that he can come up on air immediately upon my sending this,”
which Shumate acknowledged to Sidley was a reference to lining up a coordinated response from
Banks.1563 True to Shumate’s wishes, two days later on January 25, Banks posted on the listserv
with his concerns of examples that were classified: “All of my examples and commentary [for
1558 APA_0082161.
1559 Shumate drafted a note for Behnke on January 20 to send to Moorehead-Slaughter about how
Wessells’s resignation may demand the need for a new task force or the need for the Ethics Committee to
lead the project. There was no mention of the DoD review concerns that Shumate raised and Behnke
encouraged Shumate to add those remarks. Behnke then suggested that Shumate add this point on the
Ethics Committee to his earlier message to him (quoted above) and post on the listserv. See
APA_0028703; APA_0053460. Shumate did not wish to post his message to the listserv but suggested to
reframe his message and Behnke offered additional suggestions. APA_ 0053458. Shumate sent a revised
draft, which Behnke edited; Shumate largely posted this version on the PENS listserv on January 23. See
APA_0053444.
1560 PENS listserv (Jan. 23, 2006).
1561 APA_0082047.
1562Id.
1563 Id.
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Army psychologists] are classified, and cannot be shared outside of the DoD community. I have
tried to figure a way around this, but without success.”1564
On January 26, Moorehead-Slaughter called for other opinions on the issue but noted that
“[m]oving forward at this point with a Commentary from PENS is seeming less and less feasible.
It is certainly possible that the Task Force has made its contribution to this process and that now
it is best for the Ethics Committee to complete this work.”1565 Koocher interjected his thoughts
later the same day, stating that the Ethics Committee, per APA’s bylaws, is the “only group
charged . . . to interpret the ethics code.”1566
Arrigo pushed back on the idea of passing the casebook solely to the Ethics Committee:
The Task Force was appointed because the Ethics Committee lacked the
background and expertise to address the PENS issues by itself. The Ethics
Committee similarly cannot produce a valid and relevant casebook for the PENS
report. Without such a casebook, the PENS report could be considered a list of
platitudes
I think it is time for the military members to justify their
predominance on the Task Force by helping to produce the casebook.1567
Levant emailed Koocher and Behnke about “how to handle” Arrigo’s response.1568
Behnke noted there was “NO impediment” to the Ethics Committee’s handling the casebook
since the committee could draw from the expertise and comments of PENS and non-PENS
members alike.1569 Koocher also offered an outline of a response, which he sent to the listserv
on January 27. In it, Koocher rejected Arrigo’s assertions, stating that “APA Ethics Committee
has much broader expertise in application and interpretation of psychological ethics across a
wide range of settings and contexts than the more narrowly formed PENS task force.”1570
James and Fein also said they agreed that the Ethics Committee should lead the casebook
development without any analysis as to why.1571 It is possible that both would have consulted
with Behnke or Shumate, however, to agree with Shumate and Banks’s earlier statements.1572
1564PENS listserv (Jan. 25, 2006); Shumate interview (June 24, 2015).
1565 PENS listserv (Jan. 26, 2006).
1566 Id.
1567 Id.
1568 APA_0053351.
1569 APA_0081856 (emphasis in original).
1570 PENS listserv (Jan. 27, 2006).
1571 PENS listserv (Jan. 31, 2006).
1572 Fein worked for Shumate, so it is likely that both of them would have been in contact about
supporting Shumate’s position. James sent an email after his listserv posting to Behnke informing him
that he had posted his position on the listserv, thereby suggesting the two of them had agreed that James
would offer his opinion on the listserv. APA_0053315.
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Gelles said he agreed with this conclusion as well, but noted that “techniques and themes” of a
case could be published.1573
In contrast, Lefever did not express a preference but thought that thought a casebook with
disclaimers could be published with relevant DoD examples. Lefever also noted the “political
process” of PENS and how his suggestions on “what is harm . . . fell on deaf ears.”1574
On January 31, Behnke drafted a message for Moorehead-Slaughter, which she posted
verbatim on the PENS listserv, that concluded the “Ethics Committee should take responsibility
for this project.”1575
Behnke drafted a letter about the task force’s decision that Moorehead-
Slaughter later sent to the PENS listserv for review before it went to Levant and Koocher.
Notably, Behnke sent the letter to Banks beforehand. Behnke told Banks that “[d]iscretion about
prior review is essential.”1576
Behnke’s discretion comment is revealing. It implies that he asked Banks to keep secret
Behnke’s practice of pre-clearing issues and statements with Banks (a practice that continued in
the years ahead, as discussed in later sections of this report). The message shows an
understanding that these kinds of missives to Banks were atypical compared to messages with
others —that he was using Banks in a unique way different from other task force members. The
joint venture relationship between Banks, a key DoD official, and Behnke is presented plainly
here (and amplified more in subsequent years, as discussed below).
Moorehead-Slaughter sent the letter—that Behnke had drafted—for task force review on
February 1. Arrigo wrote a minority statement for inclusion on February 12. In her note, Arrigo
wrote her concerns with the PENS process: (1) that the task force members had the appropriate
expertise to craft a casebook, not the Ethics Committee; (2) that the scope of the task force
should have been broader; (3) that the task force was not a completely independent body; and (4)
that there was a lack of transparency within the task force.1577
At the same time Arrigo drafted her minority statement, Behnke requested (through an
email from Kelly) that Shumate, Fein, or Banks also write a position statement praising the
report.1578
As Kelly wrote:
Steve is wondering whether you all, as DoD employees, would be able and
willing to write a short note to the tune of “we commend this Task Force for its
work on this important issue and are pleased that its report was supported by all
1573 PENS listserv (Jan. 30, 2006).
1574 PENS listserv (Jan. 31, 2006).
1575 APA_0053318; PENS listserv (Jan. 31, 2006).
1576 APA_0053295; APA_0053296.
1577 PENS listserv (Feb. 12, 2006).
1578 APA_0081628.
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members of the Task Force.” . . . There is some concern that having only Jean
Maria's attached letter could be problematic strategically.1579
On February 13, Behnke emailed Kelly, Shumate, Fein, and Banks with suggested points
for a potential statement.1580
Behnke also requested that, “given the complexity” of having
Banks write the letter, that either Fein or Shumate write it. On February 14, Fein sent a letter to
the PENS listserv for appending to Moorehead-Slaughter’s and Arrigo’s letters. The letter
praised the task force’s work.1581
It did not use any of Behnke’s suggested points.
Moorehead-Slaughter provided an update on the task force at the February 2006 Council
meeting. She noted on the PENS listserv on February 22, 2006 that Koocher informed Council
that the Task Force “fulfilled its function and actually no longer existed as an entity after
12/31/05.”1582
In an interview with Sidley, Koocher changed his thoughts about when exactly
the task force expired.1583
At first, he thought task forces lasted one year unless renewed. Then
he declared that task forces existed until the end of the calendar year after it was pointed out that
the task force was not approved until February 2005. He then stated that the task force ended
after the release of the PENS report in July 2005. None of these responses appear plausible,
particularly since this was never mentioned before as the casebook discussions began again in
January 2006. Instead, it appears that Koocher declared this on the PENS listserv to create the
disingenuous argument that “resign[ations]” were impossible and non-congizable.1584
On February 24, 2006, Arrigo asked whether APA would allow space for her and
Wessells to write a letter in a future Monitor magazine to express their views about the PENS
Task Force.1585 Everyone who offered an opinion on the listserv disapproved of Arrigo' actions.
The letters were ultimately published in the May 2006 Monitor magazine in response to an
earlier Koocher column on the PENS report in February 2006.1586
Ultimately, Behnke did virtually nothing to pursue a casebook for years, effectively
abandoning an essential element of his (disingenuous) claim that APA’s development of ethical
guidance on the issue would be a multi-step process. Behnke made the argument to us during his
interviews that a casebook was on hold because they lost the subject-matter experts from the
1579 Id.
1580 APA_0053132.
1581 PENS listserv (Feb. 14, 2006).
1582 PENS listserv (Feb. 22, 2006).
1583 Koocher interview (Mar. 20, 2015).
1584 See, e.g., APA_0081818. In this document, Koocher raised the possibility of the task force ceasing to
exist at the end of January after there is internal chatter from Council about Wessells’s resignation and
receiving an update at the February 2006 Council meeting.
1585 PENS listserv (Feb. 24, 2006).
1586 Jean Maria Arrigo & Michael Wessells, Letters, Monitor on Psychology (May 2006), available at
http://www.apa.org/monitor/may06/letters.aspx; see also G. Koocher, Speaking against torture, Monitor
drafting the President’s Column as early as December 2005.
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PENS Task Force and because the Council began passing resolutions in 2006 that provided more
specific guidance for psychologists.1587
We do not think this is true, since as set out below,
Behnke was the lead APA strategist in attempting to manipulate and water down Council
resolutions to minimize the effect on DoD. The real reason there was no casebook is that there
was never a real desire to create one, because it would necessarily create the same problems that
specificity within the PENS report would have had (as APA staff had identified as early as
December 2004)—drawing a line that allowed psychologists substantial latitude in supporting
interrogations, as DoD desired, created substantial PR problems. The only solution to this
dilemma was to keep the guidance non-specific.
That this was actually Behnke’s thinking is corroborated by the internal emails he sent in
January 2011, when he finally created a draft document that was something well short of a book
(a 30-page document) containing 25 “vignettes” and Ethics Committee responses on this
topic.1588
The document, a final version of which was posted on APA’s website in June 2011,
took no clear stands on whether certain techniques in the Army Field Manual could be unethical.
The document instead outlined analytical questions a psychologist could ask to conclude whether
a particular technique was ethical. In sending the draft document to Anderson, Honaker,
Gilfoyle, Farberman, and two others, he explained that “[o]ur primary focus was to write
responses that would not cause us any problems.” He expressed satisfaction that there had been
almost no discussion of “this piece of the interrogation issue for some time,” and said that his
plan was “to post this text, quietly, very quietly on the Ethics webpage.”1589 Thus, six years
after PENS, the great promise of a casebook as the proper means of providing specificity and
resolving the unavoidably (said Behnke) limited nature of the PENS report had shrunk to the
form of a 30-page document, intentionally created to avoid any “problems,” which was snuck
into a corner of the APA website with the fervent hope that it would be entirely ignored.
C.
Arrigo and Democracy Now! fallout: August-September 2007
A coda to Arrigo’s PENS-related interactions arose in the summer of 2007. On August
20, journalist Amy Goodman broadcast a story on her Democracy Now! program that aired
excerpts from a Town Hall meeting at the 2007 APA Convention in San Francisco. The story
heavily featured Arrigo’s speech from the Convention where she highlighted what she thought
were various problems with the PENS Task Force.1590 In response, Koocher wrote Goodman an
open letter in late August 2007 attempting to refute many of Arrigo’s claims. Koocher claimed
1587 Behnke interviews (May 22, 2015; May 29, 2015).
1588 Responses of the APA Ethics Committee to Questions, Comments, and Vignettes Regarding APA
Policy on the Role of Psychologists in National Security-Related Activities (June 2011), available at
1589APA_0079688.
1590 APA Interrogation Task Force Member Dr. Jean Maria Arrigo Exposes Group’s Ties to Military,
Democracy Now! (Aug. 20, 2007), available at
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in his letter that Arrigo disclosed her father had committed suicide and that her “troubled
upbringing” explained her actions after the PENS process was complete.1591
By September 5, also in response to the Democracy Now! story, then-APA President
Sharon Brehm (“Brehm”) posted to the Council listserv an open letter from Moorehead-
Slaughter that defended the work she and the task force members completed on the PENS Task
Force.1592
Behnke helped draft this letter for Moorehead-Slaughter in late August 2007.1593 It is
not clear how much of the letter was drafted by Behnke or by Moorehead-Slaughter. But using
the PENS process as a guide, it is likely that Behnke drafted much, if not all, of this letter as
well. Notably, both Behnke and Brehm placed final edits on Moorehead-Slaughter’s letter
before it was publicized.1594
Koocher was incorrect in his letter when he stated that Arrigo’s father had committed
suicide. Arrigo’s father was alive during the time of PENS. Koocher has insisted that Arrigo
lied during the meeting about this fact, and Arrigo has insisted she never stated her father was
deceased or that he committed suicide.
Our interviews on this issue strongly support Arrigo’s position. To be sure, all relevant
interviewees recalled that Arrigo, in a very personal way, had discussed portions of her father’s
background and her difficult relationship with him during the Task Force member introductions
at the PENS meetings: about his military experiences, his undercover work during World War II,
his mafia ties, and his involvement in torture with the CIA/OSS. But only two people we
interviewed believed with any certainty that Arrigo stated her father committed suicide at some
point during the meetings—Koocher and Kelly, although their memories about when and how
Arrigo made the statement differed significantly.1595 The remaining eleven participants who
commented on this issue either did not recall such a statement being made or were unsure
whether it was made.1596 The overwhelming evidence shows that Koocher’s assertion that
1591 Koocher’s original posting of his letter was on his website. That link is no longer active. Koocher
also forwarded his letter to Ken Pope, who then circulated the letter on his Psychology News listserv on
Aug. 30, 2007. APA_0095571.
1592 Letter from Moorehead-Slaughter to Brehm (Sept. 5, 2007) (on file with Sidley).
1593 APA_0067444; APA_0067445.
1594 APA_0095477; APA_0095478. Behnke also drafted a series of email exchanges Moorehead-
Slaughter had with Arrigo from December 2006 through May 2007. The emails were spurred by Arrigo
message to PENS Task Force members informing them that she had turned over her copy of the PENS
listserv correspondence to Steven Reisner for analysis. Arrigo provided a copy of these correspondence
to Sidley, and we were able to locate Behnke’s draft messages to Moorehead-Slaughter during this period.
Email from Arrigo to Sidley (June 16, 2015) (on file with Sidley).
1595 Kelly commented that Arrigo told people during a meeting break that her father had committed
suicide and that she commented during the meeting that he was alive. Kelly interview (Apr. 24, 2015).
No one else had this recollection, including Koocher.
1596 The following PENS participants commented on the matter and did not corroborate Koocher’s
assertion: Behnke, Newman, Anton, Mumford, Moorehead-Slaughter, Wessells, Thomas, Banks, James,
Lefever, and Shumate.
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Arrigo said her father had committed suicide—part of a highly personal attack on Arrrigo - was
unfounded and unsupported.
Arrigo’s experiences during PENS have led her to conclude that the process was part of a
larger counterintelligence operation that sought to ensure that the government, particularly the
CIA, could continue with its interrogation practices.1597 Arrigo told Sidley that the process for a
favorable PENS report was driven by its closed process and APA observers in the room,
especially Newman, and not the DoD members. She believed that the observers were present to
check on the DoD members and ensure they did not run afoul of what the government wanted in
the report. She cited as an example how certain DoD members in the meeting showed a
willingness to add specifics into the report and how Newman, Koocher, and Behnke avoided
these discussions. She was also complimentary of Banks since he supported her throughout the
meetings and appeared open to many discussion points; she admitted, however, that Banks may
have been trying to manipulate her.1598
Sidley could not fully confirm these suspicions with our limited power to examine
agencies like the CIA. While we observed several aspects that supported Arrigo’s theory—the
role of Newman, the closed nature of the meetings, and comments from military members about
international law or specific techniques—we also observed factors that did not. For one, we
have not unearthed any evidence to support the view that other APA staff in the room were
present to control the DoD members. The most vocal APA participants—Newman, Koocher,
and Behnke—supported the DoD members’ position and did not appear to “control” any of
them; as the evidence shows, Behnke was essentially following Banks’s lead regarding critical
portions of the PENS report, not vice versa. Second, Banks appeared to play a leading role in
ensuring the PENS report was not specific and did not contradict military policies. His role
contravenes the idea that he or other DoD members did not have an influential role during the
meetings.
D.
APA policy victories in 2006
As has been noted, one of the key benefits that APA sought from its close collaboration
with DoD was a positive outcome regarding the official policy DoD was developing on the issue
of interrogations and the involvement of psychologists, psychiatrists, and other “behavioral
science consultants.” And APA received exactly what it wished for, as DoD official doctrine
and Medical Command policy explicitly provided a large role for psychologists (and not as much
for psychiatrists) in the support of interrogation and detention operations—an outcome that
clearly was due in substantial part to what was seen by DoD as the very “supportive” position
taken by APA in the PENS report.
Spurred largely by the draft policy document that Morgan Banks (along with other SERE
psychologists in Army Special Operations Command and Debra Dunivin) drafted in and around
2004 to provide guidance and instructions to BSCT psychologists regarding interrogations and
detention operations, the Army Surgeon General’s Office started a formal effort in late 2004 and
1597 Arrigo interview (Apr. 27, 2015).
1598 Arrigo interview (Apr. 27, 2015).
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early 2005 to draft an official Medical Command policy which would apply to all behavioral
science consultants involved in interrogations. As the Executive Agent for the administration of
DoD detainee policy, the Army Surgeon General’s Office’s policy would cover the entire
military.1599
The draft document that Banks had drafted by the first half of 2005 (and which he
distributed at the PENS meetings) became the official Medical Command policy (almost
verbatim in all key respects) in October 2006.1600
APA had learned of this policy development effort in early January 2005 as it was
starting to configure the PENS task force, and it was clearly one of the lead motivating factors
for APA in selecting task force members and producing a task force report that would please
DoD. In effect, APA assured that its ethics policy would be completely aligned with DoD’s
policy by (1) taking the key framework in Banks’ draft policy document (“safe, legal, ethical,
and effective”) and using it as the key framework in the PENS report, and (2) following Banks’s
lead in all other important policy respects in the PENS report. Banks’s draft policy document
thus became the basis for both the PENS report and official DoD policy, making it a foregone
conclusion that APA and DoD policy were perfectly aligned. If fact, the most recent version of
this DoD policy (2013) still contains the full PENS report as a formal part of its policy
document.1601
While the Surgeon General’s Office was finalizing its Medical Command policy, based
on Banks’s document, and getting approval from various parts of DoD, higher-level DoD
doctrine documents were required before the Medical Command policy could be issued. The
highest-level of these doctrine documents was a “DoD Directive,” (or “DoDD”) and in
November 2005, the Acting Secretary of Defense issued one on “Intelligence Interrogations,
DoD Debriefings, and Tactical Questioning.” The eight-page document contained an explicit
mention of “behavioral science consultants” assisting interrogations, an inclusion that was seen
as a huge victory for SERE and other military psychologists. Right after it was issued, a SERE
psychologist with the DoD Joint Personnel Recovery Agency sent a congratulatory note to the
team that had helped make this a success—Behnke, Banks, and two Air Force SERE
psychologists: “Thanks to all for your hard work, we are now in an official DoDD.”1602
The next step in DoD doctrine was a “DoD Instruction” on the topic (“DoDI”). In June
2006, the Assistant Secretary of Defense for Health Affairs, William Winkenwerder, issued a
DoDI that explicitly prioritized psychologists over psychiatrists in the role of “behavioral science
consultants” who supported interrogations and related activities. The document provided that
“physicians [i.e., psychiatrists] are not ordinarily assigned duties as [behavior science
consultants], but may be so assigned, with the approval of [the Assistant Secretary of Defense],
in circumstances when qualified psychologists are unable or unavailable to meet critical mission
1599 The Department of Defense Detainee Program, DoD Directive No. 2310.01E (Sept. 5, 2006),
available at http://www.oaa.army.mil/FetchFile.ashx?DocID=446.
1600 Behavioral Science Consultation Policy, OTSG/MEDCOM Policy Memo (Oct. 20, 2006), available
1601 Behavioral Science Consultation Policy, OTSG/MEDCOM Policy Memo (May 8, 2013) (on file with
Sidley).
1602 APA_0046024; APA_0046025.
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PENS TASK FORCE, &INITIAL AFTERMATH
needs.”1603 And in comments to the media about the new DoDI, Winkenwerder explicitly
mentioned that the “clear[] support[]” from the APA regarding the role of psychologists in
interrogations (a reference to PENS) “influence[d] our thinking” because, he noted, the
American Psychiatric Association had not taken a similarly supportive position.1604
This was a very large victory for those who were focused on growing opportunities for
employment and influence for psychologists, especially compared to psychiatrists. By winning
the primary position with DoD regarding which mental health professionals would provide
support for DoD interrogations, APA cemented its position with DoD in a manner that is likely
to produce substantial employment and other financially-beneficial opportunities for psychology.
1603 See Medical Program Support for Detainee Operations, DoD Directive No. 2310.08E (June 6, 2006),
1604 James Risen, Pay Any Price, 195-96 (2014).
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POST-PENS PERIOD
THE POST-PENS PERIOD - LATE 2005 TO EARLY 2009
I.
GUANTANAMO BAY TRIP
Levant’s trip to Guantanamo Bay was an opportunity for APA to solidify the “good PR,”
as Newman put it, the organization had gained from the release of the PENS report. APA took
this trip very seriously and organized a series of meetings for Levant ahead of his trip, including
with Dunivin and Banks. The trip was another example of APA relying on the observations of
its key military contacts to educate their views on a particular issue and stay “on message” with
what those contacts told them.
A.
Beginnings of the Trip
On September 28, 2005, Col. Robert Ireland (“Ireland”) of the Office of the Assistant
Secretary of Defense, Health Affairs invited Levant to visit Guantanamo Bay on October 19 and
see first-hand the “detainee and medical operations areas.”1605
Levant noted to his colleagues at
the University of Akron that the offer was a “once in a lifetime opportunity and I should
accept.”1606
The University approved of his trip and Levant began coordinating meetings with
APA staff and military members to prepare for the trip.
Levant spoke with Banks on September 29 after Behnke suggested Levant reach out to
him.1607
Newman separately emailed APA leadership about the importance of a successful trip
for APA:
I happen to know that there are currently some prickly interprofessional issues
that are alive and well in terms of who is doing what at GTMO that will likely
surface during a trip of this sort. Handling them optimally will cement the good
PR we have gotten with the military and DoD as result of the PENS report;
handling them otherwise will potentially [sic] undo some of the Association's
good work.1608
Newman’s allusion to “prickly” issues referred to a conflict between psychology and
psychiatry. After Ireland confirmed with Levant that American Psychiatric Association
President Steven Sharfstein would attend the trip, Newman informed Levant on October 6 that
there were “difficult interprofessional issues with psychiatry” over the issue of BSCT teams that
Newman would describe further at a later time.1609
A tentative attendee list was sent to Levant on October 7, 2005, and included the
following names:
1605 APA_0043069.
1606 Id.
1607 Id.
1608 APA_0043106.
1609 Id.
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x Dr. William Winkenwerder, Jr., MD; Assistant Secretary of Defense (Health Affairs)
x VADM Richard Carmona; Surgeon General of the United States
x Lt Gen Kevin Kiley; Surgeon General of the Army
x Maj Gen Joseph Kelley; Joint Staff Surgeon
x Dr. Audiey Kao; AMA: Vice President, Ethics Group
x Dr. Ronald Levant; American Psychological Association, President
x Dr. Larry Mohr; Board of Regents, USUHS; Professor of Medicine, Med Un of So
Carolina
x Dr. Susan Okie; New England Journal of Medicine, Contributing Editor
x Dr. Steven Sharfstein; American Psychiatric Association, President
x Dr. Nancy Sherman; Annapolis Inaugural Ethics Chair, Prof of Philosophy,
Georgetown Univ.
x Dr. Priscilla Ray; AMA: Chair, Council on Ethical and Judicial Affairs
x Anthony Fortune, Col (ret), Detainee Affairs Escort1610
Levant and the attendees would be at Guantanamo Bay somewhere between four and five
hours.
1611 Levant informed Council of his trip to Guantanamo Bay on October 8, 2005. He
received a few messages that worried whether the trip would be a “publicity stunt” for the DoD
and that only superficial discussions would occur.1612 In a separate correspondence, Patrick
DeLeon emailed a contact in Surgeon General Kiley’s office to inform him that Levant, a “long
tine friend,” was attending the Guantanamo Bay trip. The contact informed DeLeon, who
forwarded her response to Levant, that it was “already done.”1613
Also during this time in mid-October, Behnke planned to meet with Dunivin and
Marshall Goby, an Army Colonel who oversaw training efforts at the time with BSCT teams.1614
1610 APA_0042913.
1611 APA_0049626.
1612 See, e.g., APA_0049721. Sidley interviewed Jack Smith, a Deputy Assistant Secretary of Defense
under William Winkenwerder, who contested the characterization that the trip focused on gaining good
PR for DoD. Smith contested that it was important for key stakeholders to have a better understanding of
the operations at Guantanamo, and that the best way to do that was for those individuals to see the
facilities in-person. DoD also wished to speak directly with representatives from various professional
organizations to understand their concerns as well. Smith interview (June 19, 2015).
1613 APA_0042789.
1614 APA_0042850.
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Neither Dunivin nor Behnke believed the meeting related to Levant’s Guantanamo Bay trip.1615
It seems likely, rather, that this meeting and Goby’s presence related to Behnke’s possible role in
helping train BSCT psychologists in the future. This assumption is further corroborated by the
fact that in about October 2005, Dunivin began acting as Consultant for the Army Surgeon
General’s BSCT Policy, Course and Ethics, which dealt with providing training to BSCTs in
interrogation and detainee operations.1616
More on Behnke’s BSCT trainings, which began in
2006, is discussed in later in this report.
Separately, on October 17 and 18, Behnke and Kelly discussed concerns raised by
Shumate and Fein about Levant’s Guantanamo Bay trip.1617 Shumate thought the visit could be
"manipulated duh like no one else is going to figure this out,” and added his concerns over how
the American Medical and American Psychiatric Associations were “unsupportive” of efforts at
Guantanamo Bay. Shumate added that, “[f]rom DoD perspective having APA president at
GTMO is a good thing, yet I am concerned that the perception and possible media handling of
this visit may turn into a concerning moment for psychologists.” Shumate further stated that the
DoD should have arranged for a “special visit” by APA since they have been supportive of
interrogation efforts.1618
Fein cryptically responded that there “have been more potentially
controversial psychologist activities involved with the island than just the ones in the
headlines.”1619
B.
Levant’s Meetings Before the Trip
Behnke scheduled a series of meetings for Levant on October 18,1620 the evening he was
scheduled to leave for Andrews Air Force Base (and to Guantanamo Bay thereafter).
Specifically, he organized separate meetings for Levant with Dunivin, Kelly, Banks, and APA
Staff that day.1621
Behnke also appended a copy of the American Psychiatric Association’s draft
position statement on psychiatrist participation in detainee interrogations for Levant’s review. In
a separate email with APA leadership, Behnke suggested that Farberman provide Levant with
talking points from the PENS report in case Levant was asked policy questions.1622 In addition,
Banks shared with Levant, Newman, and Behnke a draft BSCT policy memorandum—what
ultimately became Kiley’s 2006 MEDCOM/OSTG BSCT policy memorandum—for discussion
1615See Dunivin interview (May 27, 2015); Behnke interview (June 8, 2015).
1616 Email from Dunivin to Sidley (June 16, 2015).
1617 APA_0043765. Fein and Shumate’s comments first arose from a Brookings Institution event on
October 17 that would discuss U.S. interrogation practices and international law.
1618 Id.
1619 Id.
1620 Coincidentally, Behnke spoke that day at the “Special Applications of Psychology” conference a the
Naval War College in Newport, RI at the invitation of Gelles. The conference is a closed-off small
annual conference for national security psychologists with security clearances. Other speakers during the
event included Kirk Kennedy, Andy Morgan, Mel Gravitz, and Morgan Banks. See APA_0049631.
1621 APA_0049626.
1622 APA_0026545.
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during their meeting on October 18.1623 These meetings with Dunivin and Banks were
undoubtedly arranged to make sure that Levant remained “on message” during and after his trip.
Sidley collected from Levant six different sets of handwritten notes of his meetings
related to his Guantanamo Bay trip, full copies of which are attached to this report.1624 One set
of these notes described the meetings Levant had with Dunivin, Kelly, and Banks on October 18.
Several highlights from these meetings, along with additional insights from other documents and
interviews, are listed below:1625
x
Dunivin meeting: Dunivin’s meeting with Levant covered her thoughts about the
positive impacts various leaders had on BSCT teams at Guantanamo Bay . She also
described the role of BSCTs and named others that she had worked with and who
Levant may meet with at Guantanamo Bay .1626
o On Army Surgeon General Kevin Kiley (“Kiley”) and General Jay Hood:1627
“acknowledge [Army Surgeon General Kiley’s] support of BSCTs!”
On Hood: “Debra- it was a real pleasure to serve with him, really an
excellent leader, confident with vital insight, Doing a lot to empower
BSCT’s bring psychology to high level consultants”
o On BSCT teams:
“BSC Do not have access to med. records”
x Levant noted that this was a flash point in the public since there
were allegations that BSCTs were using records to advise on
interrogations.1628
“[Steve Rodriguez, Dunivin’s boss while at Guantanamo Bay ] has
helped move to another frontier of psychology”
x Levant stated that this comment appealed to him.1629
“Local policy of establishing confidentiality even where there was no
need nationally”
“Worked out how to share info. comfortable to a proper level” and
“Firewall between medical unit”
x Dunivin noted in an interview with Sidley that BSCTs would
only receive medical information to prevent harm to the
1623 APA_0049578; APA_0049579.
1624 LEVANT_HC_0000843; LEVANT_HC_0001361; LEVANT_HC_0001366;
LEVANT_HC_0001367; LEVANT_HC_0001376; LEVANT_HC_0001378. These notes include
Levant’s reflections on meetings and conversations he had during the trip with other participants and
military officials.
1625 LEVANT_HC_0001361. All discussions and quotes in this subsection arise from this document
unless otherwise noted.
1626 Levant interview (May 13, 2015).
1627 LEVANT_HC_0001361.
1628 Levant interview (May 13, 2015).
1629 Id.
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detainee. An example of this would be if an interrogator
thought to offer sweets to a detainee who was diabetic.
x
Kelly meeting: Levant’s notes on his meeting with Kelly are sparse. Kelly sent an
email after her talk with Levant, however, which described their conversation:
o
[W]e had a good conversation about the congressional atmosphere and
legislation regarding detainee issues. He had a good talk with Debra just
before ours, especially regarding DoD protocol. I'm attaching a written brief
that I went over with Ron and will hand him this afternoon. We also spent
some time discussing DoD's likely motivations for the trip and related things
to avoid.1630
o Kelly recalled in an interview with Sidley that she did not think it was
appropriate for Levant to attend this trip.1631
She stressed to Levant that he
only speak about the PENS report as APA’s policy and to not take positions
on other issues that may arise during the trip.1632
x
Banks meeting: Banks underscored the need for psychologists in these interrogation
settings to keep them safe, legal, ethical, and effective.
o
“coerced word used in a way that is not helpful. specific behavior not use that
word”
Levant believed the point in this note was that the word “coercion” is
too ambiguous and that one should talk about specific behaviors that
might be right or wrong.1633
o
“SERE training. Training for psychologists is that they be SERE qualified.”
Banks explained to Sidley that he thought it was important for
psychologists to receive SERE training in order to learn how to
prevent abuse.1634
o
“Whole Key—our participation—key phrases—safe legal ethical and
effective”
Banks stressed to Sidley that psychologists had to participate in
interrogations settings in order to make them safe, legal, ethical, and
effective. Banks noted that the rate of abuses greatly reduced when
psychologists were present in during an interrogation.1635
“by their knowledge of individual behavior they make us more effective”
To Banks, psychologists’ knowledge of human behavior allowed them not only to
prevent behavioral drift in an interrogator, but to make an interrogation more effective.1636 As
1630 APA_0026514; see also APA_0026515.
1631 Kelly interview (May 14, 2015).
1632 Id.
1633 Levant interview (May 13, 2015).
1634 Banks interview (May 21, 2015).
1635 Id.
1636 Banks interview (May 21, 2015).
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discussed, there is a conflict between a BSCTs role as a safety officer and their role in ensuring
that an interrogation is effective.
In an earlier message about Banks’s meeting, Behnke hoped that Banks could debrief
Levant on “on the four investigations regarding detainee treatment, in particular what the
investigations said about the role of psychologists.”1637
Banks told Sidley that he suspected
Behnke’s comment referred to four investigations that had been completed and in the public:1638
(1) the DAIG Detainee Operations Inspection Report (of which Banks was a member);1639 (2) the
Schlesinger Report;1640 (3) the 15-6 Investigation into the FBI Allegations of abuses at
Guantanamo Bay; (4) the Martinez-Lopez Report into detainee abuses.1641 Banks explained that
he wanted discuss these reports and combat the “misinformation” on detainee abuses and “to get
the facts out.”1642
Levant’s trip consisted of meetings with Guantanamo leaders who provided positive
information about the facility and detainee treatment. Assistant Secretary of Defense
Winkenwerder and Surgeon General Kiley also had a dinner with the group to discuss their
observations and any concerns.
On October 23, APA released a statement about Levant’s trip.1643 Following the PENS
report’s language, the release stated that APA “will continue to help advise DoD to ensure that
work by psychologists is safe, legal, ethical, and effective.”1644
The word “effective” was added
at Newman’s suggestion.1645 On October 25, Fein emailed Levant stating he had heard from
some DoD colleagues this Levant’s visit went well.1646 He also indicated his belief that
“psychologists have a lot [to] offer in the national security area, and this is a very complicated
time and political climate.”1647
Levant forwarded the message to Behnke, who responded
1637 APA_0026243 (Oct. 12, 2005). Behnke mentioned the same four investigations in an October 2005
letter to Sharon Gadberry about her ethics compliant against James Mitchell. More about Gadberry’s
Mitchell’s complaint is discussed later in this report.
1638 Banks email to Sidley (June 15, 2015).
1639 DAIG Detainee Operations Inspector Report (Aug. 25, 2006), available at
1640 Final Report of the Independent Panel to Review DOD Detention Operations (Aug. 2004), available
1641 Surgeon General Memorandum (May 24, 2005), available at
1642 Email from Banks to Sidley (June 15, 2015).
1643 APA President Ron Levant visits Naval Station at Guantanamo Bay (Oct. 23, 2005), available at
1644 Id.
1645 APA_0026518.
1646 APA_0043405.
1647 Id.
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positively: “Ron, this is a very good message. If we stay [on] our thoughtful and reasonable
course, I think APA, psychology, and society will benefit in the long run, even if there are a few
bumps in between.”
In 2007, Levant wrote an article about his Guantanamo Bay trip in the journal Military
Psychologist.1648
Levant wrote that his “goal” for the visit “was to create opportunities for APA
to advise DoD in setting up rules and procedures that allow psychologists to work in the national
security arena and do so in ways that are legal and ethical and that protect the safety of all
participants.”1649
In Sidley’s interview with Levant, he reiterated that he wanted to give a “good
impression” for psychology during his trip.1650 One of his goals as APA President, Levant
stated, was to expand the scope of the profession; having psychologists in non-healthcare
military roles fit that vision.1651
II.
APA SUPPORT OF THE MCCAIN AMENDMENT
APA has always touted its support of the McCain Amendment in 2005 as an example of
its independence from DoD efforts to reinforce its stance against torture and cruel, inhuman, or
degrading treatment. But APA’s support came only after it effectively received pre-clearance of
such support from DoD official, Morgan Banks.
The Physicians for Human Rights (“PHR”) approached APA for its support of the
McCain Amendment on October 19, 2005, pointing out that the AMA and ApA had already sent
letters to Congress expressing their support.1652
Behnke forwarded the message to Anderson,
Honaker, Gilfoyle, Farberman, Newman, and Henry Tomes—and later to Breckler, Kelly,
Mumford, and Garrison—and inquired whether APA had a position on the amendment. Behnke
saw this as an opportunity to give APA a strong talking point with its critics on the interrogations
issue, likely without causing any damage to DoD: “If APA endorsed, I think that could be
enormously helpful in addressing concerns of some of the individuals/groups who have been
intensely interested in the PENS report.”1653 Behnke added that based on his interactions at a
conference at the Naval War College (a confidential conference of national security
psychologists with security clearances), he believed that “our colleagues in the military would
not have serious objections to APA's doing so.”1654
On October 21, Behnke emailed Banks to make sure that APA’s support of the McCain
Amendment would not cause any problems for the military, asking whether he thought any part
of the amendment contradicted the PENS report. Behnke pointedly asked, “Is there any reason
1648 Ron Levant, Visit to the U.S. Joint Task Force Station at Guantanamo Bay : A First-Person Account,
1649 Id.
1650 Levant interview (May 15, 2015).
1651 Id.
1652 APA_0026458.
1653 Id. (emphasis in original).
1654 Id.
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we should be hesitant about the McCain Amendment?” On October 24, Banks responded to
Behnke and stated that he did “not see any inconsistency” between the McCain Amendment and
the PENS report, but added that because of the “political nature” of the amendment, he could not
comment on it further. Banks then offered to discuss it with Behnke “privately.”1655
At the same time, members of APA’s Education Directorate worried that support for the
McCain Amendment might anger the Chairman of the House Defense Appropriations
Subcommittee, who was opposed to the McCain Amendment,1656 and that this, in turn, might
cause the Chairman and the Subcommittee to not support a Defense Graduate Psychology
Education (“D-GPE”) Program that APA had worked hard to initiate and sponsor.1657 Internally,
Nina Levitt explained that the Education Directorate was sponsoring the D-GPE program for
training military psychologists and that it would be considered at an upcoming congressional
Defense Appropriations Subcommittees Conference.
Despite these concerns about how the subcommittee Chairman and other House
Republicans might react, APA supported the McCain Amendment by drafting letters to the
House and Senate Appropriations Committees.1658 However, APA’s internal communications
show that APA had no fear that this action would anger DoD, or create negative consequences
for APA with DoD, especially after Behnke’s communication with Banks.
Shortly after the McCain Amendment passed, Behnke received word from DoD of a
major achievement stemming from APA’s strategy of close collaboration with DoD. On
November 14, 2005, SERE psychologist, Kenneth Rollins, sent a congratulatory email to
Behnke, Banks, and two Air Force SERE psychologists to thank them for their work in getting
DoD psychologists explicitly included in a new DoD Directive on “DoD Intelligence
Interrogations, Detainee Debriefings, and Tactical Questioning”: “Thanks to all for your hard
work, we are now in an official DODD.” This Directive, 3155.09, dated November 3, 2005, was
a crucial, high-level policy document—the highest level of DoD doctrine—signed by the Acting
Secretary of Defense. It contained 11 paragraphs defining the “general principles of
interrogation operations.” One of them created a role for “behavioral science consultants” such
as psychologists, a huge victory for this group of military psychologists.1659
1655 APA_0026458.
1656 APA_0026461.
1657 APA_0026406. In explaining her concern that the subcommittee Chairman and other House
Republicans might react negatively to an APA letter taking a stance at odds with their position, Levitt
referenced a controversy that had deeply stung APA in 1999 when House Republicans, led by Majority
Whip Tom DeLay and Representative Matt Salmon, came close to passing a resolution censuring APA
because it had published an article suggesting that child abuse was not as harmful as some thought.
1658 Geoff Mumford, When legislative objectives are in conflict, Monitor on Psychology (Mar. 2006),
available at http://www.apa.org/monitor/mar06/ppup.aspx.
1659 APA_0046024; APA_0046025. The Directive states: “Behavioral science consultants are authorized
to make psychological assessments of the character, personality, social interactions, and other behavioral
characteristics of interrogation subjects, and to advise authorized personnel performing lawful
interrogations regarding such assessments. . . Those who provide such advice may not provide medical
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III.
FEBRUARY-AUGUST 2006: COUNCIL RESOLUTION AND APA’S PUBLIC
STATEMENTS
A.
February-April 2006: Proposed Council Resolution
On February 18, during the February 2006 Council meeting, Judith Van Hoorn and
Corann Okorodudu from Division 48 (the “movers”), submitted a new business item titled
“Torture and Cruel, Inhuman, or Degrading Treatment or Punishment.” During Sidley’s
interview with Linda Woolf, who also worked on the resolution, she explained that the resolution
arose mainly out of dissatisfaction with the PENS Task Force report and the fact that it did not
contain a clear statement about what psychologists could and could not participate in. The item
was co-sponsored by the Divisions for Social Justice, and approximately 60 Council
representatives co-signed the item.
The stated purpose of the resolution was to update the APA’s 1986 Resolution on
Torture, and to APA Council’s Actions regarding the PENS task force. The 1986 Resolution
stated simply that APA “condemns torture wherever it occurs” and supports the UN Convention
Against Torture and the UN Principles of Medical Ethics. The language of the resolution, as
originally submitted, contained four “be it resolved” paragraphs. The first paragraph provided
that it was unethical for “psychologists to apply their knowledge and skills in order to assist in
the interrogation of prisoners and detainees in a manner that may adversely affect the physical or
mental health or condition of such prisoners or detainees and which is not in accordance with the
relevant international instruments.” Thus, it would likely have barred psychologists from
participating in interrogations using anything other than regular questioning and rapport-building
techniques. The second paragraph, depending on how the term “professional relationship” was
interpreted, may have prohibited psychologists from participating in any interrogation in any
setting. The full text of the draft resolution was as follows:
WHEREAS, the American psychologists are bound by the Ethical Principles to
respect the inherent dignity and worth of the individual and strive for the
preservation and protection of fundamental human rights recognizing the equal
and inalienable rights of all members of the human family and;
WHEREAS, the existence of state-sponsored torture and other cruel, inhuman, or
degrading treatment or punishment has been documented in many nations around
the world and;
WHEREAS, no exceptional circumstances whatsoever, whether a state of war or
a threat of war, internal political instability or any other public emergency, serve
as a justification of torture, and other cruel, inhuman, or degrading treatment or
punishment and;
care for detainees except in an emergency when no other health care providers can respond adequately.”
3.4.3.3.
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WHEREAS, torture victims and victims of cruel, inhuman, or degrading
treatment or punishment may suffer from long-term, multiple psychological and
physical problems:
BE IT RESOLVED, that the American Psychological Association condemns
torture and cruel, inhuman, or degrading treatment or punishment wherever it
occurs, and
BE IT FURTHER RESOLVED, that the American Psychological Association
considers it is a contravention of professional ethics for psychologists 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
heath, and;
BE IT FURTHER RESOLVED, that the American Psychological Association
considers it is a contravention of professional ethics for psychologists to apply
their knowledge and skills in order to assist in the interrogation of prisoners and
detainees in a manner that may adversely affect the physical or mental health or
condition of such prisoners or detainees and which is not in accordance with the
relevant international instruments, and;
BE IT FURTHER RESOLVED, that the American Psychological Association
supports the United Nations (UN) Declaration and Convention Against Torture
and Other Cruel, or Degrading Treatment, 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, Basic Principles for the Treatment of Prisoners, and
Principles on the Effective Investigation and Documentation of Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, as well as the joint
congressional Resolution opposing torture that was signed into law by President
Reagan on October 4, 1984.
Behnke and the Ethics Committee were assigned as the lead committee and staff with
respect to the resolution. On March 17, 2006, Van Hoorn emailed Behnke to explain a small
change to the resolution and to send him supporting documents, including a 20-page justification
statement that included a lengthy bibliography and analyzed types of psychological torture
(including sleep deprivation), psychological effects of torture, and treatment of torture
survivors.1660
At a meeting in March, the Ethics Committee discussed the resolution, although the
minutes do not reflect the content of the discussion, other than to indicate that Behnke and
Committee Chair Moorehead-Slaughter would lead the Committee’s efforts.1661 Because the
Ethics Committee was unable to contact Van Hoorn and Okorodudu during the meeting,
Moorehead-Slaughter and Behnke agreed to call them to “convey the Ethics Committee’s
1660 APA_0082705; APA_0082706.
1661 Approved Minutes of the Ethics Committee (Mar. 17-19, 2006) (on file with Sidley).
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thoughts about specific language in the resolution that was potentially inconsistent” with the
Ethics Code.
On March 19, Behnke emailed Woolf, Van Hoorn, and Okorodudu and began efforts to
form a partnership with them for the purpose of influencing the language of their resolution.
Behnke stated that the Committee was in “complete agreement and full support” of the first
resolve in the resolution, but had “concerns” about the language in the second and third resolves.
Behnke asked if there was a possibility that Division 48 and the Ethics Committee could work
together to find language that “everyone could fully support in this important resolution.”1662
The movers of the resolution responded later that same day, welcoming the chance to work with
Behnke and Moorehead-Slaughter.1663
In emailing to schedule a meeting between the two groups, Okorodudu asked Behnke
about the Ethics Committee’s specific concerns. Instead of directly responding to Okorodudu,
and in line with his practice during the PENS Task Force, Behnke drafted a response for
Moorehead-Slaughter to send Okorodudu on March 21. In the response, Behnke wrote that the
Ethics Committee was interested in learning about the process of writing the resolution and how
the group crafted the three resolves, noting in particular, that the second resolve could be
“interpreted in a manner that would preclude a significant portion of current forensic
practice.”1664
On March 24, Moorehead-Slaughter sent the email Behnke had drafted for her,
verbatim, to the movers of the resolution.1665
The group held a conference call on March 27. At the end of the day, Behnke emailed
Maureen O’Brien, the Staff Liaison to the Council of Representatives, asking her to direct the
group to someone who could answer three outstanding questions from their call: (1) is a
resolution adopted by Council APA policy; (2) what does it mean that the 1986 APA resolution
states that APA “supports” the U.N. Convention Against Torture and the U.N. Principles of
Medical Ethics; and (3) what is the nature of the commitment by APA to uphold human rights
that is represented in the application to be recognized by the UN.1666 After consulting with Jim
McHugh, APA’s Senior Counsel at the time, O’Brien emailed Behnke three answers, which
Behnke forwarded to the group on March 29: (1) when Council votes on a resolution that is
intended to be policy, the language of the motion will normally state that “Council adopts the
resolution as APA policy”; (2) “supporting” a document is not the same as adopting a document
as APA policy; and (3) APA was looking into the details of APA being an NGO of the U.N.1667
Behnke intervened quickly when the movers of the resolution sought to expedite
consideration of their resolution by placing it on the August 2006 Council agenda, rather than
waiting one year for the February 2007 meeting. The proponents had contacted Andy Benjamin,
1662 APA_0059922.
1663 APA_0082700.
1664 APA_0059858.
1665 APA_0672722.
1666 APA_0059749.
1667 APA_0059662.
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the Council Parliamentarian, about the possibility of suspending the rules at the August 2006
Council meeting in order to vote on the resolution during that meeting. On April 7, Behnke
found out from Benjamin that the movers had discussed this with him. He emailed the group
that night, saying that Benjamin “seemed not to be aware of our extensive exchanges regarding
collaborating on the Resolution's language, in order to support the Resolution going through the
governance process,” and suggested that they have a call to discuss the matter.1668 Although
Behnke apparently stressed the importance of working with him and the Ethics Committee,
which would provide “support” that would allow the resolution to go through “the governance
process” (including only being addressed by Council at the meeting one year later), Behnke
would soon change his mind about the importance of the “governance process” once it became
strategically convenient to do so.
Van Hoorn responded the next day, apologizing that Behnke was “caught off guard” by
their conversation with Benjamin, and stating that Benjamin had told them that Council
“prefer[s] that new business items go through the governance process.” Van Hoorn stated that
“given [Benjamin’s] input and our collaboration with [Behnke] and Olivia [Moorehead-
Slaughter],” they no longer wished to move forward with suspending the rules at Council and
were content to wait until the February 2007 Council meeting so that the resolution could go
through the normal governance process. Behnke thanked the movers and suggested it would be
“ideal” if the joint group could present both the resolution and still-to-be-produced
casebook/commentary on the PENS report to Council at the same time in February 2007.
Upon receiving this response, Benjamin sent Behnke a congratulatory email about getting
the Division 48 group to drop the idea of expedited treatment: “Excellent tone! Judy and her
group definitely are backing off and will work the process through governance.”1669
B.
March-June 2006: DoD Training, APA Media Strategy, and Other Issues
Meanwhile, Behnke was closely collaborating with Banks and Dunivin on virtually every
aspect of Behnke’s work relating to the interrogation issue, especially with regard to official
statements by Behnke or APA to the media, APA members, or prominent critics. As part of the
growing partnership, Banks and Dunivin brought Behnke into the newly-created DoD training
program for BSCT psychologists at Fort Huachuca, Arizona as a paid instructor.
1.
Behnke As DoD Training Instructor
On January 13, 2006, Dunivin invited Behnke to participate in the DoD’s first training
program for BSCTs on interrogation support and detention operations. It was originally
scheduled to be held on March 6, 2006 at Fort Bragg in North Carolina, where the U.S. Army
Special Operations Command is based.1670 The training was later moved to April and relocated
to the U.S. Army Intelligence Center at Fort Huachuca in Arizona. In an email conversation to
finalize the details of the training program, Dunivin mentioned to Behnke that she would be
1668 APA_0059313.
1669 APA_0082958.
1670 APA_0053552.
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seeing Gary Percival from the Army SERE training program while she was in Washington D.C.,
and noted that he would be someone Behnke would enjoy meeting.1671 In their preparations for
the April training, Dunivin also informed Behnke that Bruce Crow, a consultant to Army
Surgeon General Kevin Kiley, wanted to meet with Dunivin, Behnke, and another individual
involved in the training program.1672
Behnke conducted two half-day training sessions during two separate BSCT training
programs at Fort Huachuca in 2006, covering the topic of ethics and the PENS report. Behnke
provided Sidley with a slide deck that he said he used during these presentations, which simply
quotes various portions of the PENS report.1673
From 2006 to the present, Behnke has continued to conduct BSCT training courses and to
work with Dunivin and Banks to design the curriculum to train the psychologists, psychiatrists,
and psychology techs who attended.1674 During Behnke’s interview, he confirmed that he had
been conducting BSCT trainings at Ft. Huachuca at least twice a year since 2006, with the
exception of 2011, during which he led three trainings. Between 2006 and 2015, Behnke
conducted approximately twenty BSCT trainings. According to Behnke, his role at the trainings
was to present the position of APA and to provide updates on APA’s positions as they evolved.
In addition to this, Behnke said he also reviewed the positions of other professional associations,
human rights documents, documents from World War II, and the Army Field Manual to try to
address “what is ethical and what is effective.”1675
Indeed, in October 2009, after a cancellation
by the psychiatrist who had planned to present regarding psychiatric ethics, Dunivin asked
Behnke to “help [her] present the material that would have been done by [the] psychiatrist.”1676
DoD paid Behnke for these trainings, although Behnke said that the payments went to
APA (less reimbursement to Behnke for travel expenses), and were used by the Ethics Office for
1671 APA_0081633.
1672 APA_0082425.
1673 APA_0059173.
1674 APA_0688981.
1675 At the time of this Report, Sidley was continuing to gather details from APA about DoD’s payments
to Behnke and/or APA. Among other things, it appears that at some point, DoD may have been sending
payments directly to Behnke, because the Defense Finance and Accounting Service (“DFAS”) had his
bank account information. According to Behnke, all payments were made directly to APA’s Ethics
Office and none were paid to him personally, with the exception of two instances in 2012 when the
checks were mistakenly made out to him. Behnke said he informed APA’s Finance Office of the mistake
and he wrote checks to the APA in the amount of the payments. The honorarium was $1500 per
workshop prior to 2011, $2500 per workshop in 2011, and $5000 per workshop in 2012. Behnke said that
his travel expenses, which were generally $1200-$1300 per workshop, were reimbursed by APA. APA’s
Finance Office provided us with the contracts for the workshops dating back to 2010, which generally
confirmed Behnke’s recollection regarding the frequency of the trainings and the honorarium amount.
APA_0070465; Email from Behnke to Sidley (June 18, 2015); DFAS contracts (both on file with Sidley).
1676 APA_0088992.
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educational purposes.1677 The paperwork APA received relating to the payments from DoD for
these trainings shows that Behnke became a DoD contractor, and that up until 2011, the contract
was between DoD and Behnke. Beginning in 2012, the contract was between DoD and APA.
Prior to 2012, the contracts did not indicate that the payments will made to APA. Behnke, as the
contracting party, was listed with his home address, not his APA address, although the contract
recites in a later section that Behnke is the APA Ethics Director. The contract between Behnke
and DoD for the 2011 trainings, for instance, established that Behnke would provide “three one-
day training sessions” and that payments would be made from DoD’s finance unit, the Defense
Finance and Accounting Service (“DFAS”). The contract described “the services required to
meet the agency’s needs” as “to use the subject matter expertise of Dr. Behnke to provide
training to behavioral health personnel in support of interrogation/detention operations.”
Shortly after Behnke’s first training in April 2006, he and Dunivin explicitly discussed
not telling APA’s Board about his participation in the BSCT training program. And in fact, it
appears that APA’s Board was never made aware of his participation, his status as a DoD
contractor, or these payments from DoD to APA. On June 18, 2006, Dunivin emailed Behnke
(copying Banks) and asked, “Did you report to APA Board about participating in training at Ft
Huachuca? I know we talked about waiting to report it out... What do you think, Morgan?”
Behnke replied that the Board did not know, and implied that keeping quiet about it might be the
best strategy: “I’ve not mentioned it to the Board; after my last meeting with the Board, I expect
that it would receive the Board’s full support. I have informed my APA supervisors, naturally,
but given how hot things are at the moment discretion may be the better part of valor for the time
being, at least in terms of the broader APA community.”1678
Behnke did in fact tell his supervisor, APA Deputy CEO Michael Honaker, that he was
regularly giving a paid ethics lecture at an Army base as part of the interrogation training course
for BSCT psychologists.1679 Honaker did not provide this information to CEO Norman
Anderson or the Board.1680 When Anderson learned from Sidley during the investigation that
Behnke had been providing this training as a DoD contractor, he appeared stunned, and was
visibly upset that the matter had not been discussed with the Board.1681 Honaker said that it did
not occur to him that the Board would need to know or discuss this information because he saw it
as a standard example of Behnke providing ethics training to an important group of
psychologists, as he did, and continues to do, in a variety of settings.1682
1677 Email from Behnke to Sidley (June 18, 2015) (on file with Sidley). Behnke emailed Dunivin in
September 2006 that the payments were “very helpful in funding the Ethics Office educational
programs.” APA_0061790.
1678 APA_0060954.
1679 Honaker interview (June 23, 2015).
1680 Honaker interview (June 23, 2015); Anderson interview (June 23, 2015).
1681 Anderson interview (June 23, 2015).
1682 Honaker interview (June 23, 2015).
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Honaker and Behnke claimed that the trainings were clearly disclosed in the Ethics
Office’s publiclyavailable annual reports.1683
But in 2006 and 2007, the reports only listed the
trainings as “workshops” in “Sierra Vista, Arizona” relating to the PENS report. And beginning
in 2008, they started appearing as “workshops on ethics training for military psychologists.” The
reports do not state that the “workshops” were at a DoD facility or the U.S. Army Intelligence
Center, or that they were part of the military’s official interrogation training program for BSCT
psychologists.
It turns out that this cryptic manner of reporting the trainings was intentional, based on
discussions between Behnke and Dunivin. On September 28, 2006, Behnke said he was doing
his “yearly report to the Board” and proposed that he describe the trainings by “say[ing]
something simple like: Training on ethics and interrogations [and] Sierra Vista, Arizona.”
Dunivin agreed: “If it’s OK with you to leave it Sierra Vista and simple, let’s do that again.
Let’s talk about the implications of how this is reported when we are together next.” In
Behnke’s annual reports in 2006 and 2007, he even removed the word “interrogations.”1684
2.
Close collaboration on media strategy and related issues
During this time period, Sidley uncovered many examples of Behnke closely
coordinating with Banks, Dunivin, and other DoD contacts on APA official statements and
responses. He explicitly and frequently sought Banks’s pre-clearance or approval before
authorizing or recommending that APA act in a certain way, and the communications between
the two often revealed presumably confidential information regarding internal APA discussions.
Moreover, Behnke tried to carefully conceal his continuous pattern of coordination with DoD
from APA governance.
As early as November and December 2005, Behnke began consulting closely with Banks
regarding his public statements on behalf of APA. For example, on November 10, Behnke
consulted with Banks regarding his discussions with a reporter related to an upcoming New York
Times story on the differences between the APA and ApA positions. Behnke commented that “I
didn’t get a particularly good feeling from the reporter, but I think we need to put our best foot
forward—I’m comfortable that we’ll do well by the court of public opinion.”1685 Banks
responded to bolster Behnke’s attitude that “you are taking heat doing VERY important work. I
do not want to speculate the outcome if psychologists are not allowed to participate” (emphasis
in the original).1686
After the article was published, Nathalie Gilfoyle emailed Behnke to offer
her support: “Just remember you are doing important stuff or you wouldn’t be in the middle of
such a maelstrom.”1687
1683 Honaker interview (June 23, 2015); Email from Behnke to Sidley (May 18, 2015).
1684 APA_0088249. The Ethics Office annual reports indicate that Behnke also gave ethics lectures at the
Naval War College (2005), Walter Reed (2006-2010), Brooks Army Medical Center (2007), CIA Office
of Medical Services (2008-2009), and Womack Army Medical Center (2008).
1685 APA_0046027.
1686 Id.
1687 APA_0046020.
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The next month, in preparation for his December 15 interview on NPR with Steve
Sharfstein, President of ApA, and Nancy Sherman, a military ethicist, Behnke sought
consultation from both Dunivin and Banks. On December 12, Behnke forwarded an article
published by Sherman and asked Banks and Dunivin for their thoughts, commenting that “[w]hat
continues to strike me is how much agreement there is—much of what she says in this article
would receive the unqualified support of the American Psychological Association.”1688 Banks
and Dunivin both made comments on the article, and Dunivin added: “My sympathies for what
you are about to go through and my commendation for your willingness to do it.” Behnke also
prepared some talking points that he hoped to “run by” Banks and Dunivin,1689 though it is not
clear that Behnke ever shared his talking points or received comments on them.1690
On December 13, Banks inquired whether Behnke would be doing the interview live in
the studio or by phone, and Behnke responded that he would unfortunately be in the studio and
added: “[O]therwise I’d see if the two of you could be sending me email messages during the
show.”1691 Banks agreed that he would have liked to have been providing real-time suggestions:
“Right. Standard negotiation practice. You’re my hero.” Behnke thanked both Banks and
Dunivin, adding that he was “very very glad you two are in my foxhole.” Banks then provided
Behnke with a set of suggested talking points, which emphasized that reverse-engineering SERE
techniques to abuse detainees would be both unethical and ineffective.1692 After listening to a re-
play of the broadcast on December 15, Banks emailed Behnke and commended him for doing a
“remarkable job of getting our message out. You were the only participant who seemed to have
given ANY thought to the concept that our participation might have some value” (emphasis in
the original).1693
Behnke thanked Banks “for being such a support through all this” and said that
he would like to talk to Banks “about how better to handle it next time; I can’t just sit there like a
bump on a log and let people get away with it.” Only a few hours later, Behnke reiterated that he
“would love to find a way to sit down with you and Deborah [sic] to review some of these
materials and help me plot better interview strategies.”1694 These early interactions demonstrate
that Behnke and Banks were beginning to embark on a partnership in which Behnke was made to
feel that he was playing a critical role in supporting DoD’s mission. Not only did Behnke look
to his contacts in DoD for feedback on statements he already released, he also used them in an
iterative process to guide the message, refine its delivery, and evaluate its effectiveness. This
close teamwork ensured that APA’s positions would support DoD and facilitate its mission.
Behnke’s requests for Banks’s guidance and comments on his public statements
increased in pace over the next several months. In March 2006, when APA President-elect
Sharon Brehm asked to discuss with Behnke an article related to SERE tactics being “flipped”
1688 APA_0044006.
1689 Id.
1690 APA_0232271.
1691 APA_0044006.
1692 APA_0044007.
1693 APA_0052826.
1694 Id.
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and used in interrogations, Behnke forwarded her email to Banks and asked to “touch base” with
him before speaking to her.1695 This single exchange reveals clearly that Behnke viewed Banks
as a partner in their joint enterprise of coordinating APA and DoD policy and messaging on
interrogations. Behnke both shared a presumably private communication from a high-ranking
APA governance member with DoD personnel, and relied on Banks, as an advisor in DoD, to
assist him in crafting a mutually acceptable response. Moreover, it is clear from the “Eyes Only”
subject line that Behnke purposely concealed his consultation with Banks from Brehm and other
APA governance members, keeping secret the strategy of close coordination he intended to
pursue.
On March 15, Behnke again turned to Banks when he began receiving inquiries about
articles written by Jane Mayer, to ask whether there was an “official” response that he could
share with APA members who contacted the Ethics Office. Banks initially informed Behnke that
“[t]here have been no official releases, and you know my concerns. You can say that I
emphatically deny that I have any knowledge of any abuse of detainees by DoD psychologists
(see how legalistic that sounds).”1696
Banks also offered encouragement, thanking Behnke for
“staying in the fight.”1697
Banks’s initial response clearly demonstrates that he and Behnke had
already engaged in discussions regarding their reactions to Mayer’s criticisms, and that they were
accustomed to playing with language to achieve a precisely nuanced message. When Banks later
found time for greater consideration, he added: “There is no official response, partly because
there are only innuendos in these articles without substance. . . When you really read the article,
it is all smoke, no fire.” Behnke thanked Banks and commented that “[m]y tact, when asked
about allegations in the articles, is to turn the question around and ask what specific allegations
the person is asking about—that sometimes has the effect of at least slowing the person down.”
The following day, Banks agreed to provide a “personal, though not necessarily private”
statement in which he “strongly condemn[ed] any attempt to ‘reverse engineer’ SERE training in
order to use this training to conduct interrogations.”1698
Once again, Behnke and Banks
coordinated to craft a statement acceptable to DoD that APA could use in beating back criticisms
of its position on interrogations.
Also on March 15, Behnke received PHR’s commentary on the PENS report. The next
day, he again emailed Banks to say that he would be “very interested to discuss [the
commentary] with you after you’ve had a chance to give a careful read” (emphasis in the
original).1699
Banks warned that if the APA were to accept anything like the comments, “there
would be significant issues that would develop,” and the two agreed to speak further about
specific points made in the PHR commentary.1700
1695 APA_0060026.
1696 APA_0081118.
1697 Id.
1698 APA_0082721.
1699 APA_0059935.
1700 APA_0082622.
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In May of 2006, the American Psychiatric Association (“ApA”) released a position
statement on psychiatrists’ participation in the interrogation of detainees, concluding that “[n]o
psychiatrist should participate directly in the interrogation of persons held in custody by military
or civilian investigative or law enforcement authorities.”1701
In yet another instance in which
Behnke showed that his primary goal in developing APA messaging was to support DoD’s
policy goals, Behnke and Kelly sent a description of the statement to Banks and asked if there
was “anything on your end you can share in the way of a reaction or what it might mean for
conducting business.” Banks responded that he thought the ApA’s position was “poorly
informed on several issues” and “inaccurate in [its] depiction of several facts.” Behnke
encouraged the group to review the statement itself and then speak again.1702 It is clear that
Behnke was aware that the positions taken by professional associations, including APA, had a
direct impact on DoD policy decisions, and that he was motivated to ensure that APA did
nothing to interfere with DoD’s preferred mode of “conducting business.”
On June 7, 2006, Assistant Secretary of Defense for Health Affairs William
Winkenwerder made a press statement announcing the release of a DoD Instruction regarding
medical program support for detainee operations. In his statement, Winkenwerder expressed a
policy preference for using psychologists in BSCTs at Guantanamo:
[A]s a matter of professional personnel management, physicians would not
ordinarily be assigned duties as behavioral science consultants. So the job would
typically fall to a psychologist. But they may be—we don’t completely proscribe
the possibility that a person, a psychiatrist, could be assigned; but it would only be
with approval of my office when qualified psychologists are not available.
There is a second issue that did to some extent influence our thinking, and that is
as we spoke to the American Psychiatric Association and the American
Psychological Association—the American Psychological Association was—
clearly supports the role of psychologists in interrogations in a way our behavioral
science consultants operate. The American Psychiatric Association, on the other
hand, I think had a great deal of debate about that and there were some who were
less comfortable with that. I don’t—I can’t describe for you where they came out
exactly on the policy with regards as to psychiatrists participating in
interrogations. But . . . we try to be sensitive to the respective roles of—as they
are viewed in their professions.1703
1701 Position Statement on Psychiatric Participation in Interrogation of Detainees, American Psychiatric
Association (May 2006), available at
006_Interrogation.pdf.
1702 APA_0085887.
1703 Transcript of Media Roundtable with Assistant Secretary Winkenwerder (June 7, 2006), available at
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After Winkenwerder made this statement recognizing the differing positions taken by
APA and ApA, there was a resurgence of negative media attention directed at APA. On the
same day that Winkenwerder issued his press statement, the New York Times ran a story
highlighting the differences between the APA and ApA ethical policies regarding the use of
professionals as consultants to interrogations.1704
That afternoon, APA staff circulated a letter to
the editor that had been submitted to the Times,1705 which defended APA’s position by
explaining that “[p]sychologists have skills that can help prevent future acts of terror.” As
Council members began to criticize the letter over the course of the afternoon, Behnke reached
out to a number of his contacts in various parts of DoD to help him with a public relations
strategy.
That afternoon, Behnke emailed Dunivin and Larry James to ask for their help in drafting
a substantive response to the critiques.1706
Later that evening, Behnke asked that James compose
a response for Koocher to post to the Council listserv on his behalf, noting that James
“garner[ed] enormous respect in the APA.” After James drafted an informal message, Behnke
encouraged him to work with Rhea Farberman on a message or statement that could be shared
with Council, again expressing his opinion that James and Dunivin had “enormous respect” in
Council. Behnke also suggested that it might be helpful to make James available for a discussion
group during Convention at which interested Council members could obtain more information
regarding the roles psychologists were playing.1707
Behnke also asked Scott Shumate and Robert Fein at CIFA to provide guidance regarding
“formulat[ing] a substantive response” to membership critiques raised by Winkenwerder’s
comments.1708 Behnke explained that “[i]t’s been pretty hot around here today (my first
voicemail message this am was a member screaming into the phone that I need to take an ethics
course!). Not sure if/why WW [Winkenwerder] needed to make any statement at all regarding
psychology/psychiatry.” He added that he would “like to convey to ww that statements like
yesterday’s can stir up a hornet nest that is best left alone (as are most hornet nests).” Shumate
responded to Behnke that “you sir are clearly the right man at the right time for your job,” and
Behnke countered that “it’s a real privilege to work with you and your colleagues.”1709
On June 10, the day after Behnke suggested that James work with Farberman to refine his
message to Council, Behnke also reached out to Banks for advice regarding the public relations
strategy that APA should take in response to the “heavy hits” it was taking.1710 Banks responded
by reassuring Behnke that his “sources” indicated that the American Medical Association
1704 Neil Lewis, Military Alters the Makeup of Interrogation Advisors, New York Times (June 7, 2006),
1705 APA_0060426. Sidley could not find evidence indicating that the letter to the editor was ever
published in the New York Times.
1706 APA_0060426; APA_0060399.
1707 APA_0060348.
1708 APA_0085290.
1709 APA_0060387.
1710 APA_0060346.
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(“AMA”) would be making a statement very similar to APA’s.1711 In fact, AMA’s position
would be released within days, and Behnke would then work quickly to highlight the similarities
between the APA and AMA positions, commenting to senior staff and governance members that
he believed “that AMA’s position is our position restated, using other language.”1712 Once
again, Behnke leaned on Banks for advice regarding APA’s public relations strategy and then
matched APA’s response to Banks’s suggestions. It is clear from Behnke’s broad outreach to his
contacts in DoD that he was concerned about the public backlash to Winkenwerder’s comments
regarding DoD’s preference for using psychologists, and that he wanted to ensure that his
partners in DoD had sufficient opportunity to guide his response on behalf of APA in a way that
coordinated with DoD’s policy preferences.
Behnke also reached out to James on June 10 to reiterate his request for assistance at
Council, especially in light of the controversy raised by Winkenwerder’s statement. Behnke
forwarded a letter from the President of Division 39, which suggested holding a conference call
to discuss the “crisis within APA regarding our Ethics Office as it pertains to interrogations. The
most immediate crisis was precipitated by the June 7 article in the New York Times . . . and Dr.
Koocher’s letter to the editor in response to that article. The Times article reflects the now
indisputable fact that our house is not in order; in contrast to our psychiatric colleagues, we
appear unable to be unequivocal regarding participation in torture/coercive interrogations.”
Behnke commented: “Larry, this is bad. Let me ask you a question: Would you be willing to
make yourself available at Convention for Council members (no press), to answer questions
regarding the role of psychologists in setting such as Guantanamo Bay? I am meeting with the
Board tomorrow . . . and I think that would be a good part of a plan to respond to what’s going
on.”1713
The following day, on June 11, the APA Board met. The minutes do not show that the
Board discussed the New York Times article or any other issue related to psychologists
participating in interrogations.1714
On the next day, June 12, James agreed to speak to Council and Behnke responded that
“in my opinion this is EXACTLY what we need. I am going to work with Rhea Farberman,
Olivia [Moorehead-Slaughter], Norman [Anderson] and Gerry [Koocher] to develop a strategy
for Council. Things are getting pretty hot around here. I’ll keep you posted at each step along
the way.”1715 Behnke’s discussions with James, Dunivin, and Banks demonstrate that, once
1711 APA_0085872.
1712 APA_0060279.
1713 APA_0060321.
1714 Approved Minutes of the Board (June 9-11, 2006) (on file with Sidley).
1715 APA_0060321. Behnke’s comment regarding things “getting hot” likely referred not only to phone
calls to the Ethics Office, but also to messages being posted to APA listservs, including a message on the
Division 38 listerv regarding the June 7 New York Times article: “This is most distressing. I would like to
hear Dr. Behnke’s response and rationale, be informed of who else is providing consultation and input
into this effort, and what secure safeguards are being used to ensure that transgressions do not occur,
given the history of abuse and the pressure psychologists will be under to cooperate with the military in
this regard.” APA_0085728.
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again, in the face of growing criticism, Behnke reached out to trusted contacts in DoD for their
confidential advice, and worked in a partnership with them to craft APA’s media and policy
strategy in a manner consistent with their guidance. Behnke continually shared APA’s
confidential internal discussions and strategy with his DoD contacts, and relied on them to help
him direct future APA strategy discussions.
On the same day, June 12, Brehm forwarded several member complaints to senior staff
and governance members, including Anderson, Levant, Koocher, and Behnke, commenting that
“[w]e’re getting pecked to death by ducks and, unless we are able to contact more of our
members more effectively, the bleeding will continue.”1716 She continued expressing her
concerns to the group after she found a New York Times editorial regarding the suicides of three
Guantanamo inmates:
Yesterday [at the Board meeting], I considered mentioning this issue, but we had
a full plate even so and, frankly, I was uncomfortable talking about it with Russ
[Newman] in the room. Perhaps I was overly cautious, but this is such a complex,
difficult issue that I didn’t want to risk inadvertently saying something that would
have made Russ uncomfortable. Given the ongoing violations of basic human
rights, can APA sanction psychologists participating in the activities at
Guantanamo? Is it ethical for any psychologist to take part in any activities at
Guantanamo? That is, what’s the right thing to do when the specific psychological
activity is ethically neutral or even ethically commendable, but the
organization/setting/basic principles are unethical? At what point does the whole
overwhelm the part?1717
In response to Brehm’s concerns, Behnke seized the opportunity to direct the discussion
toward strategic considerations, as he had indicated to James that he would do:
Please keep this message confidential. I think we need to develop a strategy for
Council, where these issues can be directly addressed. Col. Larry James, who is
very well respected in the Association and who has served at both Abu Ghraib
and Guantanamo Bay, feels very strongly that psychologists have served as a
bulwark against abuses, and that the most effective way to prevent abuses from
occurring is to have psychologists involved. I think Council needs to hear directly
from a psychologist with firsthand experiences at these settings. There is too
much “noise” in the form of misinformation being disseminated about what
psychologists are doing, and wee need a better grasp of the facts to make
thoughtful, intelligent decisions. In an exchange this morning Larry indicated he
would be willing to speak to Council in August.
1716 APA_0085728.
1717 Brehm’s concern is a vibrant demonstration of the conflict of interest presented by Newman’s
presence at the PENS Task Force meeting.
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Brehm agreed that James would be an “excellent speaker” and urged the group to invite
him to present at Council.1718 This interaction is but one example of Behnke’s successful
manipulation of internal APA strategy in a way that conformed to the mutual goals he developed
with his partners in DoD.
When AMA released its position statement on June 12, 2006, Behnke immediately turned
to Banks as his consultant in developing APA’s response, contacting him several times the
following day for his thoughts and comments on the statements Behnke was making on behalf of
APA. On June 13, Behnke asked Banks for his reaction to an analysis he had prepared of the
similarities between the APA and AMA positions,1719 an approach which Banks had himself
suggested only days earlier. On the same day, Banks approved Behnke’s statement to a reporter
emphasizing that “the American Medical Association has used precisely the same ethical
analysis to determine the manner in which physicians may participate in interrogations,” which
Behnke described as “our basic position, that we’ll elaborate.” Banks agreed that “[t]he basic
talking point is that we and the AMA are in virtually complete agreement.”1720 Also on June 13,
Behnke forwarded to Banks his response to a member’s criticisms, which reiterated the precise
match between the APA and AMA positions, again asking for Banks’s thoughts on how he had
framed the response. Banks commiserated with Behnke regarding the frustration of responding
to continued attacks, and offered suggested language for Behnke to use in future responses that
emphasized the close alignment between the APA and AMA positions.1721 These messages
demonstrate that Behnke and Banks saw themselves as part of a unified team developing APA’s
public relations strategy in a way that supported DoD’s continued use of psychologists in
interrogation roles. Behnke continued to share APA’s media strategies, presumably intended to
be confidential, with his advisors in the DoD, and to implement the suggestions of those advisors
in his statements on behalf of APA. Precisely as Banks had obliquely suggested before the
AMA position statement was even released, Behnke embraced the similarities between the APA
and AMA documents and used the comparison as a cornerstone of APA’s media strategy.
Over the ensuing days, Behnke continued to coordinate with Banks and Dunivin to tweak
APA’s media statements to emphasize similarities not only between APA and AMA, but with
ApA’s position as well. On June 14, Behnke emailed Banks and Dunivin to explain that “[o]ne
aspect of our media strategy is to stress similarities between the three associations. All three
associations have made clear that members may consult to interrogations. (President of
American Psychiatric, Steve Sharfstein, has said that the psychiatric association will not
discipline military psychiatrists acting under orders.)” In an attempt to bolster his position,
Behnke also inquired whether he could disclose in public that military psychiatrists were still
being trained for the BSCT role.1722
1718 APA_0085728; APA_0086114 (As they drew closer to the Council meeting, Behnke commented to
James that he was “coming to see your role here as increasingly important”).
1719 APA_0060279; APA_0085750.
1720 APA_0085769.
1721 APA_0085768.
1722 APA_0085672.
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On the same day, Behnke asked Banks to review a column for the Monitor comparing
and contrasting the three position statements. He agreed to “soften” language based on Banks’s
suggestions.1723
After the column was posted to APA’s website, Behnke explained that he “had
to rewrite for reasons I’ll explain” and indicated that he was interested in Banks’s reaction.1724
When APA members later wrote to criticize the column, Behnke again turned to Banks to review
his response to the criticisms.1725
When, on June 20, Steven Reisner circulated a critique of APA’s position, Behnke again
turned to Banks and Dunivin for their help in identifying factual misstatements as he drafted a
response.1726
Banks responded with detailed point-by-point critiques of Reisner’s analysis,
emphasizing that an operational psychologist is not healthcare provider bound by medical ethics
and that “to ask him or her to abide by the [World Medical Association’s] code is
preposterous.”1727
Dunivin also commented on Reisner’s message, indicating that many of his
1723 APA_0689685. The column emphasized how “closely related” APA’s position was to the other two
associations, particularly AMA, but acknowledged that ApA used a different analytical framework based
solely on the “do no harm” principle, rather than considering that principle in conjunction with the need to
protect society, as APA and AMA had. Behnke explained that: “The difference between the
psychologists and physicians, on one hand, and the psychiatrists, on the other, becomes understandable
when placed in the context of how the associations have conceptualized the issue differently.
Immediately following the release of the American Psychiatric Association position, its president was
quoted by the media as stating that the psychiatrists’ position statement is not “an ethical rule” and that a
military psychiatrist following orders ‘wouldn’t get in trouble with the APA [American Psychiatric
Association]’ for participating in interrogations. This clarification from the president of the American
Psychiatric Association places the psychiatric association alongside APA and AMA in terms of
enforcement actions: Military psychologists, physicians and psychiatrists, following orders, abiding by
clear prohibitions against coercive interrogations, acting strictly as consultants to interrogations and not as
caregivers, and reporting coercive or abusive acts to the appropriate authorities, will not be subject to
discipline from their professional associations.” Stephen Behnke, Ethics and Interrogations: Comparing
and Contrasting the American Psychological, American Medical and American Psychiatric Association
Positions, Monitor on Psychology (July/August 2006), available at
http://www.apa.org/monitor/julaug06/interrogations.aspx (internal citation omitted).
1724 APA_0086368.
1725 APA_0062400. Behnke and Banks continued to consult regarding the comparison between APA and
other professional associations over the coming months. For example, on July 10, Behnke again turned to
Banks for approval of a response to member criticisms, in which Behnke emphasized the similarities
between the associations. Banks commented: “Your response is very solid, and again points out the
inconsistencies in the ApA position
[The author] seems to believe that neither law enforcement nor
the military have need for us
OK. I think we can find psychologists to fill in for them. As a side
note, I expect all my psychologists to consider themselves Army officers who are psychologists, not
psychologists who happen to be in the Army. If they do not feel that way, I will not have them working
in the operational psychology area.” APA_0086751. On July 28, in an email that revealed Banks and
Behnke’s joint efforts to manipulate language in service of their position, Banks commented that “[m]uch
depends on the use of the term ‘directly participate,’ and we are spinning the phrase, ‘monitor
interrogations with the intent of intervention,’ as you and I have discussed.” APA_0086820.
1726 APA_0060836.
1727 APA_0086187.
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statements are “correct if one considers the only appropriate role that of health care provider.”1728
Sidley could find no record that Behnke provided a substantive response to Reisner’s critiques.
On June 22, Dunivin forwarded to Behnke and Banks a comment made by another
military psychologist to a group of Division 19 members regarding his “reservations” relating to
the debate over the ethical implications of serving as a BSCT, particularly with respect to his
sense that “indirect involvement,” though permissible under APA policy, still “influences the
coercive nature of an interrogation and contributes to breaking down detainee resistance.”1729
Behnke responded that the military psychologist had written “an interesting and articulate
message,” but dismissed his substantive concerns by suggesting that the same ethical issues were
raised when psychologists performed custody evaluations.1730
Although Behnke most often turned to Banks for assistance in drafting APA’s statements,
at times Behnke also facilitated interactions between Banks and other APA staff to assist Banks
in developing DoD’s media strategy. For example, on June 24, Behnke connected Banks with
Rhea Farberman so that Banks could “use [her] expertise to help develop some talking points
that are consistent with APA.”1731 Behnke and Banks engaged in a side discussion and
developed two potential talking points: (1) highlighting DoD’s interrogation approach based on
relationship building and (2) acknowledging that abuses have taken place but insisting that the
parties responsible had been punished. Farberman suggested that Banks “also emphasize
psychology’s understanding of how stressful situations can lead to behavioral drift . . . [and] [a]n
on-set psychologist can monitor for such stress and work with the military personnel to help
them stay within appropriate boundaries.” The points developed by Behnke and Farberman
demonstrate that they were highly attuned to the defenses Banks and other military psychologists
had been offering for years. Whether APA turned to DoD for assistance or, more rarely, DoD
turned to APA, the evidence clearly shows that APA and DoD worked as partners to ensure that
they presented a unified public message.
In late June, Steven Miles published his book Oath Betrayed: Torture, Medical
Complicity, and the War on Terror, and APA members began to circulate reviews of the book.
On June 26, Behnke contacted Banks to alert him that “we are DEFINITELY going to need to
respond to this book.” Banks informed him that the Office of the Surgeon General had given an
interview responding to Miles’s theories, and that the MEDCOM investigation into detainee
operations, approved in May 2005, was “a strong rebuttal [sic] of this book.”1732 Behnke
thanked Banks for his input,1733 though there is no evidence that he drafted a response to the
book. It is likely that Behnke’s focus shifted after a June 30 Democracy Now! interview with the
book’s author prompted a flurry of activity on APA listservs and within APA governance, and
Behnke turned to putting out fires rather than drafting a considered response.
1728 APA_0086179.
1729 APA_0060788.
1730 Id.
1731 APA_0086091.
1732 APA_0086017 (emphasis in original).
1733 APA_0060645.
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It is clear that during this period, Behnke saw himself, and APA, as teammates with
Banks, Dunivin, and DoD. He continually turned to his partners in DoD to closely coordinate
strategy and policy in direct opposition to peace and social justice critics, and he shaped APA’s
message in a way that suited the military’s needs.
C.
Manipulation of the August 2006 Council Meeting: June 2006 - August 2006
Although in April 2006, Behnke (with Benjamin’s help) had successfully convinced the
Division 48 proponents of the proposed Council resolution not to seek expedited action at
Council’s August 2006 meeting, Behnke abruptly changed positions in June when he suddenly
saw expedited action on the resolution as a necessary strategic step to provide an alternative to
potentially worse outcomes. This was clearly a reaction to his concerns about the Council and
PR environment in light of the events just described, and a new on-line petition drive that began
on June 20.
On that day, a petition by Stephen Soldz, which proposed that APA direct its member
psychologists not to participate or indirectly assist in the interrogation of “enemy combatants” at
Guantanamo and other similar U.S. detention facilities on foreign soil started circulating on the
Council listserv.1734
Among other things, the petition quoted from a July 7, 2005 New England
Journal of Medicine article: “Psychiatrists and psychologists have been part of a strategy that
employs extreme stress, combined with behavior-shaping rewards, to extract actionable
intelligence from resistant captives.”
The next day, Behnke emailed Banks to express concern about the petition and to ask for
his help, emphasizing that he was working on “repaying” Banks for his assistance: “[Y]ou are
really doing a yeoman's worth of work helping us out. I haven't figured out how I'm going to
repay you, but trust me, I'm working on it. I am growing increasingly concerned about a petition
(link below). I do not believe that the statements it makes are correct, and would like
confirmation of that, ideally by someone who can render an authoritative legal statement. Can
you help us out, or know someone who can?”1735 Behnke sent a follow up email to Banks with
the statements Behnke thought were incorrect, including the statement that “[p]sychiatrists and
psychologists have been part of a strategy that employs extreme stress.”1736 Behnke also
emailed Dunivin about the petition and asked if they could discuss it by phone.1737 Banks
responded substantively on June 26, forwarding a long response from a military (JAG) attorney
to whom Banks had sent Behnke’s questions. With respect to the question about “extreme
stress,” the JAG officer replied “[s]o? Extreme stress can be brought about [] by prolonged
exposure to my children,” and stated that “[s]tress doesn’t even come close to torture as defined
in the torture convention.”1738
1734 Petition Against Psychologists’ Participation in Interrogation of ‘Enemy Combatants’, available at
1735 APA_0612009.
1736 APA_0060808.
1737 APA_0060833.
1738 APA_0086044.
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Having reached out to Banks and Dunivin for guidance, Behnke emailed Van Hoorn and
Okorodudu on June 22, stating that the “climate may have changed,” and suggesting that their
original plan for expedited treatment of their resolution now made sense, such that the resolution
would go before the Council in August.1739 Behnke claimed in a later email to them that the
“changing climate” referred to “the attention that the Council was giving to this issue and the
Board’s desire to ensure that Council has the opportunity to discuss this issue when it meets at
Convention.”1740 But the emails leading up to this exchange show that, in fact, Behnke had
become concerned that more aggressive action by Council—including a potential prohibition on
psychologists being involved in interrogations at Guantanamo—was become increasingly likely,
and that it was strategically important to provide a more moderate alternative that would keep
DoD officials happy (by not requiring any change) while appearing sufficiently “pro human
rights” so that peace psychologists would also be satisfied.
As an additional step in pursuing this strategy, Behnke sought to co-opt the Division 48
proponents by adding representatives from the military psychology division, Division 19, to the
team. On June 22, 2006, Behnke sent an email to Benjamin, Moorehead-Slaughter, and Doug
Haldeman (the Board’s liaison to the Ethics Committee), with the heading “CONFIDENTIAL,
BETWEEN US,” presumably to ensure that the group did not forward it to the Division 48
proponents. Behnke said that they should strongly encourage Van Hoorn and Okorodudu to
“reach out and work with Division 19 to fashion wording for the final Resolution.” Behnke said
that he and the Ethics Office would be “happy to facilitate this process.” He then provided the
talking points to be made to Van Hoorn and Okorodudu, including the point that “the process of
writing and bringing the resolution forward must be a collaborative process.”1741 Having
obtained sign-off on his plan from this group, Behnke then drafted an email for Moorehead-
Slaughter to send to Van Hoorn and Okorodudu, which Moorehead-Slaughter sent verbatim on
June 24.1742
In the email, Behnke raised the specter of a “divisive outcome” in APA and
“concern[] that an entire segment of our membership is being cast in a particular light.” The
email then suggested that Van Hoorn and Okorodudu reach out to Division 19 to see if they
would be interested in collaborating on the resolution, and played up the wonderful things they
could accomplish for APA as an organization: “Such collaboration would send a very powerful
message to the entire Association, about working together, about listening to one another, and
about the confidence we have in ourselves as a group.”1743 The group scheduled a conference
call for June 28, and on June 29, Van Hoorn emailed Behnke that she had started the outreach to
Division 19 and had a call planned for the next day.1744 Behnke had achieved this goal, and from
this point on, the resolution language reflected not what the Division 48 proponents wanted, but
what the Division 48 and Division 19 representatives (along with Behnke) could agree on.
1739 APA_0060799.
1740 Id.
1741 APA_0060792.
1742 APA_0611676.
1743 APA_0086058.
1744 APA_0085929.
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Linda Woolf circulated another draft on June 27. Notably, the two “resolves” that would
have been most problematic for DoD and had most concerned Behnke had been deleted:
BE IT FURTHER RESOLVED, that the American Psychological Association
considers it is a contravention of professional ethics for psychologists 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, and;
BE IT FURTHER RESOLVED, that the American Psychological Association
considers it is a contravention of professional ethics for psychologists to apply
their knowledge and skills in order to assist in the interrogation of prisoners and
detainees in a manner that may adverse affect the physical or mental health or
condition of such prisoners or detainees and which is not in accordance with the
relevant international instruments.
In their place, the following language was inserted:
BE IT RESOLVED, that, based upon the APA’s long-standing commitment to
basic human rights including its position on torture, psychologists, regardless of
their roles, always work in accordance with relevant international human
rights instruments, and do not engage in, direct, support, facilitate or offer
training in torture or other cruel, inhuman or degrading treatment” (emphasis
added).
After the group met on June 28, 2006, Behnke circulated the edited language of the “be it
resolved” paragraph discussed above, with minor changes:
BE IT RESOLVED that based upon the APA’s longstanding commitment to basic
human rights including its position against torture, psychologists always work in
accordance with international human rights instruments relevant to their
roles, and regardless of their roles, do not engage in, direct, support, facilitate, or
offer training in torture or other cruel, inhuman, or degrading treatment (emphasis
added). 1745
Much later, Behnke would stress to Banks that he had intentionally inserted the phrase
“relevant to their roles” in order to ensure that this clause (in his view) did not create any
constraints on DoD psychologists.1746
Behnke also suggested that they add another “whereas” provision:
Whereas, all members of the APA have important contributions to make to the
individuals and groups with whom they work, and to society, when abiding by the
Ethical Principles of Psychologists and Code of Conduct (2002).
1745 Id.
1746 APA_0064004.
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Both Van Hoorn and Okorodudu thanked Behnke for his suggested language and noted that they
had reached out to Division 19 through Steve Sellman.
On June 29, 2006, Van Hoorn emailed Behnke and asked how they should respond if
they were asked who prepared the resolution: “The Ethics Committee’s suggestion? The
Board’s? Your suggestion?” Wanting to maximize the appearance that this was purely a
Division 48 resolution, and not one managed and watered down by him, Behnke suggested a
response that acknowledged contact with APA staff, but falsely implied that the contact was
merely procedural: “The Movers would like to move the Resolution forward as expeditiously as
possible, and have asked staff to indicate what mechanisms are available to get the Resolution
before Council at the earliest date.”1747
On July 9, 2006, Woolf circulated a third revision of the resolution to the group. The
relevant “be it resolved” sections were revised and expanded to include the following:
BE IT RESOLVED that based upon the APA’s long standing commitment to
basic human rights including its position against torture, psychologists shall
always work in accordance with international human rights instruments relevant
to their roles.
BE IT RESOLVED that regardless of their roles, psychologists shall not engage
in, direct, support, or offer training in torture or other cruel, inhuman, or
degrading treatment.
BE IT RESOLVED that psychologists shall not knowingly provide any research,
instruments, or knowledge that facilitates the practice of torture or other forms of
cruel, inhuman or degrading treatment.
BE IT RESOLVED that psychologists shall not be present during any procedure
in which torture or other forms of cruel, inhuman or degrading treatment is used
or threatened.
Within ten minutes of receiving this email from Woolf, Behnke forwarded the resolution
to Banks to seek his pre-clearance, commenting that he thought it was “tolerable”: “[T]ell me if
you see anything problematic (other than what we discussed at dinner on Wednesday)”.1748 A
few hours later, Banks confirmed that he had no issues with the language, and joked “I’m not a
fan of murder, spouse abuse, or genocide either. Perhaps a resolution…”1749
On July 10, 2006, Moorehead-Slaughter emailed the group and stated that she would ask
the Ethics Committee to review the resolution, explaining that if nothing in the resolution is
inconsistent with the APA Ethics Code, then the Ethics Committee would recommend that the
resolution move forward in the APA governance process.1750 The next day, a website was
1747 APA_0060625.
1748 APA_0086486.
1749 Id.
1750 APA_0690077.
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created for members to submit comments to the resolution, and both the resolution and its
underlying referenced documents were posted onto the website.
Sidley was unable to locate records of an Ethics Committee meeting or discussion in July
2006, and indeed, Lindsay Childress-Beatty (the Ethics Office Deputy Director) confirmed that
no such meeting occurred, though she said it would not have been unusual for the Committee to
have a conference call meeting during which no minutes were taken.1751 Although it is unclear
whether there was a full discussion of the Ethics Committee, two members of the Committee
emailed to express a concern with the word “always” in the first resolve.1752 On July 14, 2006,
Behnke emailed Van Hoorn, Woolf, and Okorodudu and said that “the Ethics Committee has
expressed a concern” with the phrase “shall always” in the following “be it resolved” paragraph:
BE IT RESOLVED that based upon the APA’s long standing commitment to
basic human rights including its position against torture, psychologists shall
always work in accordance with international human rights instruments relevant
to their roles.
Behnke explained that the phrase “shall always” “seem[ed] to bind psychologists to a
potentially undefined set of documents,” and suggested that it be replaced with “psychologists
work in accordance with…”1753 After some back and forth, Woolf suggested that they use
“psychologists shall work consistent with,”1754 which they later changed to “psychologists shall
work in accordance with.”1755
Behnke responded that this language “may work for the Ethics
Committee.”
That evening, Woolf sent another draft of the resolution with additional changes and the
following new language:
BE IT RESOLVED that psychologists shall be alert to acts of torture and other
cruel, inhuman, or degrading treatment (CIDT) and have an ethical responsibility
to report these acts to the appropriate authorities.
Woolf also suggested that they (1) strengthen one of the “whereas” statements to include
specific examples; (2) add “advise” to the “be it resolved” statement that discusses how
psychologists might be potentially involved in CIDT or torture; and (3) keep the phrase “shall
work in accordance” in the statement they had been discussing.1756 Later that evening, Behnke
responded that he was reviewing the changes with Moorehead-Slaughter on the phone and that
the changes looked good.
1751 Email from Childress-Beatty to Sidley (June 24, 2015).
1752 APA_0086656.
1753 APA_0062776.
1754 APA_0086640.
1755 APA_0086635.
1756 APA_0086632.
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On July 20, 2006, Van Hoorn emailed an updated draft to Behnke after she and Steve
Sellman met to discuss the resolution. The following “be it resolved” was added to the
resolution:
BE IT RESOLVED that should torture or other cruel, inhuman or degrading
treatment or punishment evolve during an interrogation where a psychologist is
present, the psychologist shall attempt to intervene to stop such behavior, and
failing that exit the interrogation facility.
In response to the new language, Behnke expressed a concern that leaving a facility “may
quite literally not be possible,” and suggested changing it to “will not remain present in that
interrogation setting unless for the purpose of attempting to stop the torture or cruel, inhuman, or
degrading treatment.” Sellman registered his approval, but Van Hoorn stated that the change
might weaken the statement and suggested that they shorten it to “exit the interrogation.”1757
This draft also added the McCain Amendment to the list of policies that the APA was
reaffirming its support of, an addition that was credited to Division 19:
BE IT RESOLVED that, based upon the 1986 APA Human Rights Resolution,
the American Psychological Association reaffirms its support for…and further
supports the McCain Amendment, the United Nations (UN) Basic principles for
the Treatment of Prisoners…1758
All agreed to the changes, and the resolution was finalized for review by the Ethics
Committee on Sunday, July 23.
On the same day, Behnke drafted a message for Moorehead-Slaughter to send to the
Ethics Committee. The email, written in the voice of Moorehead-Slaughter, stated “I can say
comfortably that this Resolution does not permit any activity that would be prohibited by the
Ethics Code. For this reason, I believe it is time for the Resolution to move forward through the
APA governance process.”1759 The email asked that if anyone disagreed, they should respond by
5 PM the following Wednesday. About an hour later, Moorehead-Slaughter sent the email, with
the finalized resolution as an attachment, to the Ethics Committee, using the language Behnke
had drafted verbatim.1760 Over the next week, the resolution was reviewed for minor changes
and grammatical errors. It was finalized on July 27.
Leading up to the August Council meeting, Behnke intentionally tried to conceal his
involvement in the resolution revision process. For instance, on July 7, Haldeman emailed
Behnke and asked him to review a statement that he was planning on sending to the Board
regarding the upcoming resolution. Haldeman’s original draft statement noted that both Behnke
and Moorehead-Slaughter had been working with the representatives from Division 48 to
collaborate on the drafting of the resolution. Behnke sent Haldeman a revised draft that
1757 APA_0087155.
1758 APA_0087129.
1759 APA_0062593.
1760 APA_0087123.
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minimized the role played by Moorehead-Slaughter and entirely removed any references to
himself.1761
Haldeman made these edits, but when he sent the statement to the Board, he
accidentally attached the email in which Behnke had provided his edits. Behnke forwarded the
email to Gilfoyle and expressed extreme displeasure.1762
Behnke privately shared with Koocher his strategic thinking behind the intentional effort
to falsely make the resolution appear to be a Division 48-only effort, and the danger that without
this moderate alternative, much worse resolutions may have thrived. In a July 10 email marked
“CONFIDENTIAL,” Behnke said that “[f]or several reasons, I think a Resolution coming from
Division 48 has many advantages for us, and I’ve carefully reviewed the draft they are working
with. It is far superior to other possible texts that could come before Council.”1763 Two weeks
later, Behnke made the same point to Koocher after Van Hoorn asked that a letter from her about
the resolution be posted on the Council listserv to garner support. After reviewing the letter,
Behnke emailed Koocher and noted that “the more people see this Resolution as originating from
Division 48, the better we’ll be.”1764
Behnke also managed the way in which the Division 48 proponents would be describing
the Ethics Committee’s involvement to make it appear as though the only involvement from
“Ethics” was to ensure that the resolution was consistent with the Ethics Code. On July 17, Van
Hoorn said she wanted to write an introductory statement to post on the Council listserv, but
would send it to Behnke for his review first. She suggested that she would write that Division 48
was proceeding with Behnke’s “full support and encouragement,” and that she would have
Moorehead-Slaughter stand with them at the time of the resolution’s introduction in Council to
“truly assure people that we’ve worked together on this.”1765 Behnke responded that they should
instead say that they “consulted extensively with the Ethics Committee to ensure that there are
no inconsistencies with the Ethics Code.” Behnke did not include any references to himself or
the Ethics Office.1766
Behnke also plotted to arrange a controlled, well-staged speech from a DoD official who
would send a message to the Council about the humane treatment of detainees. The original idea
was to have Larry James speak, but Koocher and Behnke later discussed having Army Surgeon
General Kevin Kiley speak instead, and an invitation to Kiley was extended. On July 10,
Behnke shared with Koocher his strategic thinking for making Kiley’s speech as smooth as
possible if he accepted the invitation: “Given the circumstances, could we think through how this
1761 APA_0061082.
1762 APA_0061072 (“Holy S., Batwoman - did Doug really send the message with this attachment that
was our earlier exchange???”).
1763 APA_0061229.
1764 APA_0062486.
1765 APA_0062734.
1766 Id.
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is presented to Council, and invite Council to submit questions/issues IN ADVANCE for his
consideration? I think that approach might set a very helpful tone” (emphasis in the original).1767
When it appeared that Kiley would accept, Behnke began coordinating with Banks and
Dunivin about how to tell Council that Kiley was going to speak. In a July 18 email, Behnke
said he was “extremely eager for your thoughts on how to present this to Council,” explaining
that “we should frame it very carefully.” Behnke then drafted two paragraphs which stressed
that “it will be important to have data regarding what psychologists are being asked to do in
national-security related settings,” and since APA was “an organization dedicated to science,
education, and practice, we must move forward with the best evidence available.” Behnke’s
draft added that “[t]o make the best use of our time” and “given our time constraints,” questions
to Kiley should be submitted in advance.1768
Dunivin, who served as the point of contact for Kiley, asked for a synthesized list of
questions to use in briefing Kiley ahead of the Council meeting.1769 When Behnke circulated a
list of proposed questions to Banks and Dunivin, Banks responded that they were “the very
questions we have been trying to answer publically [sic] for some time.”1770 Behnke then
submitted talking points for Banks’s and Dunivin’s briefing of Kiley. Among other points,
Behnke included some of the key APA media strategy points about the supposed similarities
between the APA, ApA, and AMA positions, and said, “there is ‘no light’ between the PENS
Task Force Report and current Army policy on the use of psychologists. The two are completely
in sync—there is no discrepancy between them at all.”1771
In addition to managing the language of the resolution, the language introducing it, the
identity of the speaker at Council, the content of his presentation, and the process for asking him
questions, Behnke also attempted to manage the lunch invitations and seating arrangements for
the main participants, all with a careful legislative strategy in mind. On July 18, Behnke emailed
Judy Strassburger, head of the APA governance office, stating that Koocher had agreed to have
lunch with Van Hoorn and Okorodudu (the Division 48 proponents), Neil Altman (a leader in the
Divisions of Social Justice and the ultimate proponent of the 2007 Council Resolution), and
Steve Sellman (the Division 19 liaison to the resolution group). Behnke said that they should be
“seated in the main room, for good visibility.” He asked that the lunch invitation be sent “as
soon as possible after the announcement goes out, because that’s when the organizing will begin
and we want to nip that in the bud as best we can.” He added that “we may also want to consider
inviting one of Division 18 [Psychologists in Public Service] members.”
Meanwhile, as criticism and commentary around the respective positions of the APA,
ApA, and AMA continued to circulate, Banks reminded Behnke that APA needed to stay the
course if it wanted to receive beneficial policies from DoD for psychologists. On July 28, Banks
1767 APA_0061229.
1768 APA_0062702.
1769 APA_0087227.
1770 APA_0062558.
1771 APA_0062559.
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POST-PENS PERIOD
commented as an aside on one of his responses to Behnke’s requests for guidance that Surgeon
General Kiley “is still committed to supporting this use of psychologists. (and, I assume,
psychiatrists.)” Behnke queried whether Banks had “a sense that the Surgeon General was re-
considering the use of psychologists in this role” and wondered what that would mean for
Banks.1772 Banks responded that the Surgeon General was “fully on board” with continuing to
use psychologists as BSCTs, and “the only problem that could occur is if APA changed course.
The effect of that would be substantial and very problematic for all government psychologists (to
include local police psychologists).” Behnke assured Banks that his “read of the tea leaves is
that it is extremely unlikely APA will change its course in any significant way.”1773
During continued discussions regarding Kiley’s presentation at Council, it is apparent
that Dunivin had some concerns about “folks having [an] opportunity to present the ‘other
side.’”1774
Behnke assured Dunivin that there was unlikely to be “a significant ‘other side’”
because the Divisions for Social Justice had co-sponsored the resolution. Understandably,
Dunivin commented that Behnke was a “[s]uperb strategist,”1775 and Behnke responded with a
“wink” emoticon.
Despite Behnke’s strategy, many critics of APA’s position felt that there was a significant
“other side.” On August 4, Mark Benjamin published an article in Salon that quoted APA
members as stating that APA leadership was “circumventing the democratic process” by
blocking requests from Len Rubenstein, executive director of Physicians for Human Rights, to
speak to Council and present the view that there is no ethical role for health professionals to play
in interrogations.1776
In addition, Steven Reisner sent a letter to Koocher asking him to
reconsider his decision to reject Rubenstein’s offer to speak or urging him, in the alternative, to
consider inviting Phil Zimbardo to speak on a panel with Kiley.1777
Within one hour of the Salon article being emailed to a large group by APA critic (and
former Ethics Committee Chair) Ken Pope, Levant forwarded it to the Board of Directors and
Executive Management Group listservs and asked, “Escalation?” Brehm asked if the Board had
discussed inviting Rubenstein, and Anderson then weighed in, explaining that on the afternoon
of August 4, he, Koocher, Behnke, Farberman and their “crisis communications consultants” had
discussed the idea of “inviting someone opposed to APA’s policies” in response to an email from
Stephen Reisner suggesting it. Anderson said that the consultants thought “this was definitely
something we should do from a media perspective,” and as a result, Koocher invited Reisner to
speak.1778
1772 APA_0062365.
1773 Id.
1774 APA_0087201.
1775 APA_0062615.
1776 Mark Benjamin, Psychologists Group Still Rocked by Torture Debate, Salon (Aug. 4, 2006), available
1777 APA_0339374.
1778 APA_0201986.
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Later, APA would cite this “debate” between Kiley and Reisner (which actually consisted
of back-to-back statements) as proof of its even-handedness, but the emails show that it only
occurred because of media pressure and concern about the ovearll media strategy. In addition,
once Reisner was added as the second speaker, APA sandwiched him between Kiley and
Moorehead-Slaughter, two pro-PENS speakers, both of whom were given good talking points to
use.1779
As the three speeches were summarized by APA later, Kiley stated that there had been
some abuses in the past, but said that the Army did not condone torture or abuse and had dealt
with those situations. Kiley added that conflicts between military orders and the Code of Ethics
almost never arise. “Regarding the line between reasonable interrogation and abuse,” Kiley said
that “psychologists know right from wrong and can tell if some action or procedure is harming
detainees.” Kiley’s points were consistent with the talking points provided by Behnke. Reisner
said that psychologists should not be involved in interrogations in any way “because of their
possible knowledge of research and practice that might inform interrogation techniques, to
include torture or other cruel and inhuman treatment.” Reisner also said that “there is no clear
line between appropriate and inappropriate advice” for interrogators, and that APA ethical
standards must apply and “define what is torture or abuse.” Moorehead-Slaughter gave a “status
report on the implementation” of the PENS report, and said that the Ethics Committee will soon
begin work on the “Casebook/Commentary.” No such “commentary” was produced until 2011,
when the Ethics Office published a short compilation of vignettes to its website.1780
After the speakers gave their presentations, the Council voted to adopt the resolution,
with the addition of one clause:
BE IT RESOLVED that the term ‘cruel, inhuman, or degrading treatment or
punishment’ means treatment or punishment by any psychologists that is of a kind
that, in accordance with the McCain Amendment, would be prohibited by the
Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United
States, defined in the United States Reservations, Declarations and
Understandings to the United Nations Convention Against Torture and Other
Forms of Cruel, Inhuman or Degrading Treatment or Punishment…
After Council passed the resolution, Soldz contacted Behnke about the additional “be it
resolved” statement. In response, Behnke suggested that Soldz get in touch with Van Hoorn,
Okorodudu, and Woolf, explaining that the language was changed on the floor of Council and
that he was not a part of those discussions.1781 After Soldz forwarded his questions to the
movers, Woolf confirmed that the definition of “cruel, inhuman, or degrading” was taken from
1779 APA_0062349.
1780 APA_0004471.
1781 APA_0062017.
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