Will the American Psychological Association finally renounce the Nuremberg Defense?
The long-standing struggle within the American Psychological Association over involvement of psychologists in
potentially abusive national security interrogations is heating up again, this time with a dispute over its ethics code.
In 2002, the APA added the infamous standard 1.02 to its code. This standard allows psychologists to ignore the other
provisions of the code when it conflicts with "law, regulations, or other governing legal authority."
With its echoes of the universally reviled Nuremberg Defense - "I was just following orders" - of the Nazi doctors and
others tried for war crimes after World War II, this standard has been deeply disturbing to many APA members and others. This code is binding upon all APA members and upon most licensed psychologists in the
country as most, perhaps all, states require those receiving licenses to adhere to the APA code. Standard 1.02 built a
loophole into the ethics code that allowed any unethical behavior by those following military or other governmental
orders.
Interestingly, in an unenforceable aspirational section of the ethics code, the wording is different:
"If the conflict is unresolvable via such means, psychologists may adhere to the requirements of the law, regulations,
or other governing authority in keeping with basic principles of human rights." [Emphasis added.]
After World War II, as the allies planned the prosecution of Germans for crimes committed during the war, they
anticipated the possibility that defendants would use the defense that they were "just following orders" and were thus
not morally culpable for their actions. The rules governing the Nuremberg trials stated:
"The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from
responsibility under international law, provided a moral choice was in fact possible to him."
This defense of following orders has been known ever since as the "Nuremberg defense" and has been regularly rejected in
both U.S. and international law. In fact, the very term "Nuremberg defense" is often derided as the attempt of
scoundrels to avoid moral and criminal responsibility.
In the wake of reports of psychologists aiding the Bush regime program of torture and detainee abuse, having the
Nuremberg Defense in the APA's ethics code took on added significance. Potentially, it could allow psychologists
involved in detainee abuse or torture to escape future liability for these abuses before the APA or state ethics
committees. Further, since violating professional ethics could be introduced as evidence in the unlikely possibility of
future war crimes trials, 1.02 could provide some protection in potential future trials.
Human rights advocates within the APA have experienced revulsion at an ethics code that is effectively gutted by
including the Nuremberg Defense. As Ken Pope, a former Chair of the APA Ethics Committee who has since resigned from the
association wrote in a statement sent to thousands of psychologists:
Nuremberg’s message of inescapable ethical responsibility and accountability came at an unfathomable price. It should
never be set aside and forgotten, especially in a profession’s formal statement of its ethical values.
The APA Council directed as early as 2005 that the association's Ethics Committee evaluate and recommend an alternative
to this standard; some discussions were held, but year after year, no action was taken. At its August 2008 meeting,
Council again directed the Ethics Committee to make a recommendation regarding changes that would resolve the
discrepancy between the aspirational "in keeping with basic principles of human rights" and the absence of any human
rights restriction to following orders in the enforceable section of the code. This recommendation was to be presented
to the August 2008 Council meeting.
During the year there was an open comment period during which over 80 psychologists posted comments on the APA web site.
Interestingly, a number of military psychologists objected strongly to changing this standard. Among these were Morgan
Banks and Larry James, both of the APA's infamous PENS [Psychological Ethics and National Security] task force that,
dominated as it was by military psychologists, gave the stamp of approval to psychologists participating in Bush-era
interrogations. Also among those against changing 1.02 was Debra Dunivin, a Former BSCT psychologist at Guantanamo and
wife of a former top APA official, Russ Newman, who played a major behind the scenes role in guiding the PENS task
force. All three of these commentators served in chains of command that have been accused of abuses.
Joining the military psychologists in rejecting change were virtually all of the most powerful committees within the
APA's governance structure. Thus, the powerful Committee on Legal Issues, the Board for the Advancement of Psychology in
the Public Interest, the Board of educational Affairs, the Board of Professional Affairs, and the Board of Scientific
Affairs recommended against any change in 1.02. several, more peripheral committees, including the Committee on Aging,
the Committee on Disability Issues in Psychology, the Committee on International Relations in Psychology, and the
Committee on Animal research and Ethics did support change.
One month before this August's Council meeting, the Ethics Committee made its recommendation. After four years of
deliberations, they recommended no change in standard 1.02, but, rather, an additional lengthy period of discussion..
They did issue an apparently hastily-written statement that they would not accept a defense of "following orders" to ethics violations involving torture. This
statement, however, is totally inadequate for several reasons:
• First, it is of dubious legality, as it directly conflicts with the code (1.02) itself.
• Second, such a statement is not binding on future Ethics Committees.
• Third, it has no status with state licensing boards that adopt the APA code.
• Finally, and most important, there are many other human rights abuses that may be authorized by law or orders
that the EC statement will not cover.
•
The Ethics Committee recommendation follows on the heels of a letter from the APA Board on the torture-interrogations issues that was deemed woefully inadequate by association critics and activists seeking change. This Board letter recently was criticized in an Open Letter from a broad range of psychological, health, and human rights organizations. This Letter called for five actions by the
APA, including change in 1.02 and other problematic sections of the ethics code. In particular, it calls upon the APA
to:
"Develop a clear and rapid timetable to remove Sections 1.02 and 1.03 [the `Nuremberg defense' of following orders] from
the APA Code of Ethics. [We note that the APA Ethics Committee has stated that they will not accept a defense of
following orders to complaints regarding torture; this statement is a welcome improvement but it is clearly inadequate
as it is not necessarily binding on future committees nor does it cover abuses falling under the category of cruel,
inhuman, or degrading treatment.] Revoke the equally problematic Section 8.05 of the Code, which dispenses with informed
consent `where otherwise permitted by law or federal or institutional regulations,' and Section 8.07, which sets an
unacceptably high threshold of `severe emotional distress' for not using deception in the ethics of research design."
The Ethics Committee recommendation rejects this and many other calls for change. If Council concurred with this recommendation, the Nuremberg Defense wouldl stay in the code for at least
the many additional years of deliberation called for by the Committee.
The Ethics Committee's recommendation was met with withering criticism from members. After initially refusing to respond
to critics, the APA President and Board, sensing a pending PR disaster, responded positively to a motion from the
members of Council who wrote the 2008 resolution directing the Ethics Committee to act by this august. Now these
resolution Movers, as they were know, the President and the Board have united behind another six month delay, directing
the Ethics Committee to recommend changes in 1.02 by the February Council meeting. Notice that they entrust this
important task to the same Ethics Committee that only weeks before concluded four years of effort by recommending no
change.
In a typical APA fashion, the Ethics Committee suddenly saw the wisdom of what they had just rejected. Presumably, those
committees that had weighed in heavily against change will, for the time being at least, miraculously discover its
value.The association is set for another long wait to see if this promise of change is any more sincere than any of the
others over the last our years.
Whether or not it ultimately gets reversed, the Ethics Committee's embrace of the Nuremberg Defense also was taken by
many as yet another sign that the loyalty of the APA leadership to the military-intelligence establishment is greater
than its loyalty to its members. After all, last September those members decisively rebuked the APA leadership by passing by a 59% to 41% margin a referendum declaring that psychologists, whether involved in
interrogations or treatment of detainees, do not belong in detention centers violating international law or the
Constitution:
"unless they are working directly for the persons being detained or for an independent third party working to protect
human rights"
[There is an exception for those psychologists treating US military personnel.]
The APA leadership, while nominally acknowledging the passage of the referendum and placing it "in effect" have treated
it as an abstract statement with no direct action implications. They have undermined the clear sense of the voting
members that psychologists do not belong at Guantanamo or other sites. This leadership has stymied efforts to apply the
referendum to any actually existing detention facility, such as Guantanamo or Bagram, where indefinite detention without
trial and other violations of human rights are still in effect.
In response to the disappointing Ethics Committee recommendation, leading to, at best, additional delay in removing the
Nuremberg Defense from the Ethics Code, as well as the failure to fully implement the member-passed referendum,
activists are discussing how to respond to what they view as an unacceptable bending of professional ethics to the
wishes of the military-intelligence establishment. Some members are contemplating resigning, joining many who have
previously taken that step. Others may hold their breathe and see if, this time, perhaps, APA leaders really mean
change. Meanwhile there has been no action on the other major actions, including other essential ethics code revisions,
recommended in the Psychologist/Human Rights groups Open Letter:
"1. Fully implement the 2008 referendum as an enforceable section of the APA Code of Ethics. This entails a public
announcement that APA policy and ethical standards oppose the service of psychologists in detention facilities at
Guantanamo Bay Detention Camp, Bagram Air Base, CIA secret prisons, or in the rendition program.
"2. Annul the June 2005 PENS Report due to the severe and multiple conflicts of interest involved in its production.
3". Bring in an independent body of investigative attorneys to pursue accountability for psychologists who participated
in or otherwise contributed to torture or cruel, inhuman, or degrading treatment. APA should also: (a) clarify the
status of open ethics cases and (b) remove the statute of limitations for violations involving torture or cruel,
inhuman, or degrading treatment, so as to allow time for information on classified activities to become public.
"4. Develop a clear and rapid timetable to remove Sections 1.02 and 1.03 [the "Nuremberg defense" of following orders]
from the APA Code of Ethics. [We note that the APA Ethics Committee has stated that they will not accept a defense of
following orders to complaints regarding torture; this statement is a welcome improvement but it is clearly inadequate
as it is not necessarily binding on future committees nor does it cover abuses falling under the category of cruel,
inhuman, or degrading treatment.] Revoke the equally problematic Section 8.05 of the Code, which dispenses with informed
consent “where otherwise permitted by law or federal or institutional regulations,” and Section 8.07, which sets an
unacceptably high threshold of “severe emotional distress” for not using deception in the ethics of research design.
"5. Retain an independent investigatory organization to study organizational behavior at APA. Due to potential conflicts
of interest, independent human rights organizations should be enlisted to select this investigatory entity. The study
should address, among other things, possible collusion in the PENS process and the 2003 APA-CIA-Rand conference on the
Science of Deception, attended by the CIA’s apparent designers of their torture program [James Mitchell and Bruce
Jessen] during which “enhanced interrogation” techniques were discussed. The study should explore how the APA governance
system permits the accumulation of power in the hands of a very small number of individuals who are unresponsive to the
general membership. It should also propose measures to return the APA to democratic principles, scientific integrity,
and beneficence, including restructuring for greater transparency and the assimilation of diverse viewpoints."
Until these five actions are undertaken, the APA will still not have extricated itself from its close engagement with
the Dark Side.
*************
Stephen Soldz is a psychoanalyst, psychologist, public health researcher, and faculty member at the Boston Graduate School of Psychoanalysis. He edits the Psyche, Science, and Society blog. He is a founder of the Coalition for an Ethical Psychology, one of the organizations working to change American
Psychological Association policy on participation in abusive interrogations. He is also a Steering Committee member of Psychologists for Social Responsibility [PsySR].
ENDS