August 24, 2015

Beyond the APA: The Role of Psychology Boards and State Courts in Propping up Torture

Posted by Deborah Popowski

This post was originally published on Just Security

The image of torture in US popular culture is an intimate one: a government agent and a suspect in a dark cell, usually alone. But the reality of our state-sanctioned torture program is that it took a village, working in broad daylight, to pull it off.

This summer, all eyes are on the American Psychological Association, as they should be. An independent investigation commissioned by the APA found that the organization had, as David Luban describes here, engaged “in a decade of duplicity to permit its members to participate in abusive interrogations while seeming to forbid it.” The report, lead-authored by former prosecutor David Hoffman, tells a tale of wholesale corruption and cooptation. Among its explosive findings is that APA officials refused to act on ethics complaints against military and CIA psychologists so as to shield them from sanction.

But the APA was not the only institution asked to investigate these matters. State licensing boards in Ohio, New York, Texas, Louisiana, and Alabama also received credible, well-documented complaints against implicated psychologists, including many of the same subjects of the improperly dismissed APA complaints. As lawyer and advisor for Dr. Trudy Bond and other courageous complainants in many of these cases, I witnessed how the licensing boards, like the APA, stonewalled and refused to bring formal charges, offering opaque, implausible, or seemingly pretextual justifications for their decisions. 

According to the Hoffman report, ethics director Stephen Behnke told investigators that the duty to protect the public fell not on the APA, but on the state licensing boards. The truth is that the responsibility is shared — and so is their failure.

Licensing boards are legally mandated to protect people from the unsafe practice of psychology. This includes patients, all people with whom psychologists work, and the broader public. Yet, presented with evidence that their licensees had participated in or enabled torture, these state boards seemed to turn a blind eye. To truly understand how a profession dedicated to healing came to sanction brutality, we need a full investigation into how and why these boards dismissed misconduct complaints against psychologists James Mitchell, John Leso, Larry James, and Diane Zierhoffer. Did the state boards handle these complaints properly and in good faith, or did they, like the APA, strain their reading of the law to reach conclusions that would not restrict the government’s interrogation program — even if it included torture and cruelty? To what extent did they rely on compromised APA ethics policies and the now-discredited officials responsible for them?

The Hoffman report concluded that the APA had failed to investigate in “any ordinary understanding of the term” because officials empowered to seek additional information and interview witnesses had chosen not to do so. Reading this, I wondered what Hoffman would make of our bizarre one-sided meeting with Ohio psychology board officials in 2010. We had traveled to Columbus to address questions the Board might have as they reviewed our complaint against retired Guantánamo psychologist Larry James, then a psychology dean at Wright State University in Dayton (now famous for for casting the sole dissenting vote against a new APA policy banning psychologists from national security interrogations). But once introductions were over, the Board’s director, lawyer, investigator, and one of its members sat before us in eerie silence. When we reminded them of the purpose of our meeting, Director Ronald Ross and Assistant Attorney General of Ohio Roger Carroll insisted they had no questions and needed no additional information.

In the absence of specific guidance, we followed up with everything we could think of: names of potential witnesses, legal memoranda, support letters from local psychologists, ethicists, faith leaders, and veterans — all this, in addition to the over 1,000 pages of documentation we had originally provided with our 50-page complaint.

The Board responded months later with a three-sentence letter stating that it had completed its “review” and was “unable to proceed to formal action in this matter.” No further explanation was ever provided.

The New York Office of Professional Discipline was more explicit in its summary dismissal of Dr. Steven Reisner’s complaint against Major John Leso, an army psychologist who participated in the interrogation of Mohammed al Qahtani — a man so badly tortured that a senior Bush-appointed official admitted that prosecutions against him could not go forward. Director Louis Catone reasoned that Leso’s alleged conduct did not constitute the practice of psychology because al Qahtani was not Leso’s patient and had not consented to the psychologist’s attempts to modify his behavior. Of course, as Reisner’s lawyers argued, such a narrow interpretation of the practice not only “ignores the well-established practice of psychology in the context of institutional settings, including forensic and correctional settings,” but also “perversely excludes willful misconduct and abuse from regulation altogether.”

In Texas, the board declared there was insufficient evidence to charge James Mitchell, the architect of the CIA’s torture program who had already been widely and credibly reported to have supervised and participated in the waterboarding of one prisoner, Abu Zubaydah, 83 times.

The courts proved no help. Not a single judge in New York, Ohio, Texas, or Louisiana reviewed the licensing boards’ actions on the merits. One by one, they dismissed on various jurisdictional grounds, declaring themselves powerless to review the boards’ failure to act. All concluded that the complainants lacked standing, even those in jurisdictions that allow members of the public to bring matters of great importance to the courts for their review. In Ohio, one such state, Magistrate Ed Skeen concluded (and Judge Dale Crawford agreed) that the board’s decision to not investigate allegations of torture by a sitting psychology dean simply did “not affect the citizenry at large, … [was] not of great importance and interest to the general public, and the alleged public injury … [was] not serious.”

No state makes it easy for a court to compel an administrative agency to act, but in each of these cases, there was room in the law for judges to rule differently. For example, the Ohio and New York courts could have (and I believe should have) recognized public interest standing. Whatever their motivations, the interpretations they chose kept them insulated from the repercussions of confronting the torture state.

What next?

The latest confirmations of moral and political corruption in the APA have pushed the psychology profession to a tipping point. Thousands of psychologists are entering this debate and voicing their sense of betrayal. They and other people of conscience would be wise to also look closer to home at their licensing boards. Legislators in New York, Ohio, Texas, Louisiana, and Alabama should hold public hearings into their boards’ handling of these complaints and enact legislation that would prevent boards from arbitrarily dismissing credible complaints. State oversight bodies like the Ohio Inspector General should open investigations. Licensing boards should fully cooperate because their integrity is at stake.

The APA and its state association counterparts should lead the way, beginning by making public all communications with licensing boards relating to post-9/11 interrogation and detention matters, including and especially anything related to disciplinary complaints.

In Fear Up Harsh, army interrogator Tony Lagouranis writes that torture “grows like an ink stain and spreads like a disease, and along the way its face changes, so you end up in a place totally unlike where you started.” He is describing how torture techniques escalate and proliferate. But the stain of torture spreads beyond the torturer and victim, to people and institutions far from the prison cell who choose to prop up the torture state instead of opposing it. This process is less visible. It is the process of normalization. The stain seeps into our pores, so slowly and thoroughly that before long, we forget what we looked like before it came into our lives.

The Hoffman report has jolted us awake, but our work isn’t done. It took a village to get us here, and it will take a village to get us out.

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