September 3, 2013
Ohio Court Rules Licensing Board Need Not Investigate Torture Allegations Against Local Psychologist
Posted by Deborah Popowski
This summer, the Franklin County Court of Common Pleas in Ohio ruled that the state’s psychology licensing board did not have a legal obligation to conduct a meaningful investigation into whether Dr. Larry James had committed grave violations of professional ethics in his role as Guantánamo senior interrogation psychologist.
The state court dismissed the case on procedural grounds, meaning that, like the Ohio Psychology Board, it did not engage with the evidence of abuse and made no finding as to Dr. James’s conduct. After almost 18 months of silence, the court issued a decision that is three pages long, and, for reasons not explained or reflected in the docket, was not written by the judge to whom the case was assigned. It offers virtually no legal or factual reasoning to support its conclusion that the people of Ohio were insufficiently harmed by torture left unexamined and unaccounted for, and that they therefore lack standing to challenge the Board’s inaction.
Our clients have decided not to appeal the decision. They made this choice not because they agree with the ruling, but because this latest chapter in their legal fight has convinced them that the courts are not where justice, accountability and truth will be found—not on this issue, not at this time. As a lawyer and teacher of law, this saddens me. But, like them, I am not surprised. In the seven years that I’ve worked on human rights violations in the U.S. counterterrorism context, the greatest victories and examples of moral courage that I’ve seen have taken place far from the courtroom, thanks to people like Trudy and Josie, Colin and Michael, whose consciences move them to action when officials charged with accountability choose to remain silent.
Accountability can take many forms. We documented what is known about Guantánamo during the period of Dr. James’s tenure, including numerous official and prisoner accounts that contradict his story. It is now part of the historical record and available to anyone who wants to read it. We stand by the accuracy of our research. In all these years, not one person—no court official or representative from the Board, or from Dr. James’s employers at Wright State, or even Dr. James himself has ever identified any factual or legal errors in our complaint. We hope our work will encourage military and intelligence health professionals and other officials to proceed with caution, and to avoid making the choices that Dr. James and some of his colleagues made.
Political climates change. Years go by, sometimes a generation or more, but eventually, fear begins to subside—enough for the truth to emerge and make room for justice. And if history is any guide, professional boards and courts eventually catch up.
Responses from the complainants and fellow co-counsel below.
Dr. Trudy Bond, complainant and independent psychologist in Toledo
“It has been determined that we are unable to proceed . . .” intoned the Ohio Board of Psychology in its three-sentence response to a 50+ page complaint against Dr. Larry James. As a psychologist who has worked for accountability for many years, it’s been difficult to be told repeatedly by state licensing boards that they do not have to investigate the actions of psychologists who have allegedly committed ethical violations in the treatment of prisoners at Guantánamo Bay.
We know prisoners were tortured and abused at Guantánamo. We know that psychologists were an integral part of that torture and abuse. We know that Larry James proudly described himself as the Chief Psychologist of a prison where abuse and torture was official policy. We unmistakably established these facts in our complaint. Still, the Ohio Board of Psychology deemed that they were unable to proceed. To put it plainly, I have no respect for the Board that was in place at the time of this determination.
Equally disturbing is the indifferent attitude of the judiciary, in this case the Franklin County Common Pleas Court and Judge Laurel Beatty, who did not find time in her docket, after two years, to make the final ruling on our case. A retired visiting judge made that ruling.
To be clear, this court did not find Dr. James innocent of any violations. Instead, the Court found that we were not sufficiently harmed individually or as members of the general public by the alleged actions of Dr. James while senior intelligence psychologist at Guantánamo. Dr. James has never been investigated for his role at Guantánamo. No high-level officials or health providers have been held formally accountable for their role in the torture promulgated by this country after 9/11. Perhaps there will be a day when that changes.
Michael Reese, complainant and U.S. Army veteran, resident of Columbus and Cleveland
As a disabled American veteran, I feel that Dr. James had a responsibility to do no harm. If he didn’t live up to that responsibility—and he did not—there should be consequences. At the end of the day, we’re talking about human beings. I don’t think any rights are more important than human rights, and yet they got so little attention in this situation. Nobody on the Board or in the courts seemed to want to address the issues that were so clearly before them. It’s almost like they were saying, “We know what happened, but we don’t really care.”
When that happens, everybody loses. But when it comes to Dr. James, and his willingness to do harm, we in Ohio stand to lose the most right now. He still has a license to treat patients here. And until recently, he was the head of the Professional School of Psychology at Wright State University. We are dependent on the young people coming through these programs to have not just the education, but the attitude to do the job satisfactorily. The training they get has got to be first class if we expect them to come out and give help to my disabled son, or my mentally disabled granddaughter. But the young people that Dr. James was responsible for teaching or mentoring, I believe they may have a skewed value system when it comes to their responsibility to do no harm.
The fact that he’s allowed to keep doing all this without going through a real investigation or hearing can—and I believe will—affect all of us in some way.
One of the things I’m hopeful about, though, is what I saw in Washington, D.C. last Saturday. The number of young people involved in that 50th anniversary celebration of the March on Washington was absolutely wonderful. They weren’t just standing there; they were involved. They had something to say, and it was positive and it was very uplifting. When I looked over the vast crowd and saw all those young people marching and standing together, I thought: that’s my grandchildren’s future.
Those in power now—from the top, the middle, and the sides—they don’t seem to care about people. But from what I saw on Saturday, one day soon we’re going to have people in decision-making positions that will have the attitude that people come first. These young people are saying: there’s going to be a change, and we’re going to bring it.
Rev. Colin Bossen, complainant and former minister of the Unitarian Universalist Society of Cleveland
My disappointment with the judge’s decision in the Larry James case echoes my more acute disappointment with the direction this country has taken. It is a reminder that yet another public institution, the Ohio Board that supervises psychologists, has chosen the cowardly route of convenience. Rather than assert a universal moral standard, in which human rights are the same everywhere and torture is torture no matter who commits it, the Board and the legal system that supported it have decided that some people will face a different standard of moral accountability than others. This decision undermines the moral legitimacy of the legal system in Ohio and the moral authority of the state licensing Board.
The dismissal of our case against Larry James came at almost the same time as Edward Snowden’s revelations about NSA spying and the government’s persecution, and prosecution of Chelsea (Bradley) Manning. The confluence of these events is a terrifying illustration of just how far the United States has strayed from being an exemplar for human rights. James will not be held accountable for his actions. Manning, who let the world now about the US military’s slaughter of civilians in Iraq, will spend much of the rest of her life in prison. Snowden, a heroic whistleblower in the tradition of Daniel Ellsberg, has been forced to seek asylum in Russia, a country with a deplorable human rights record. U.S. Attorney General Eric Holder, who has not prosecuted any Bush-era officials for their crimes, will only promise Snowden that he won’t be tortured or executed if he returns home.
Despite my disappointment at the case’s outcome, I am glad to have participated in an attempt to hold James accountable. If nothing else, there now exists a historical archive that documents his various morally reprehensible actions. And he, and future generations, will know that even though there were ultimately few consequences for him, there remains a record of what he has done, how he dragged the profession of psychology down, and how some people spoke out against what he, and others like him, did.
Dr. Josephine Setzler, complainant and former director of local Ohio affiliate of the National Alliance on Mental Illness
I understand and trust the practice of psychology to be a healing art. The state of Ohio ostensibly protects this healing art with regulations that ensure practitioners are using it properly, to do good, rather than harm. Yet neither the state licensing board nor the courts have seen fit to give consideration to a case in which a psychologist is alleged to have used his skills in the service of torture and other abusive behaviors.
Do our public servants imagine that they are released from their obligation to protect patients when the behaviors in question occur in a shadowy offshore realm where international law has been set aside in favor of alleged national security interests? Surely these public servants should be asking themselves: Can a health professional violate the dignity of the human person in an offshore prison, and then be trusted to respect that dignity in absolute terms once he returns to his office at home?
Yet none of our public servants has chosen so much as to take up the question and conduct a public investigation. I am deeply disappointed.
Tyler Giannini, co-counsel and Director of International Human Rights Clinic, Harvard Law School
When I read the court’s opinion, I cannot say I was surprised by the outcome. But, like when I read the Board’s original letter saying it could not pursue the case, what leapt out at me was the glaring absence of analysis and explanation. Both the Board and the court are supposed to serve as safeguards of the public good—to balance government interests with individual and collective rights and to explain their decisions to the public. In a case of this magnitude, an explanation for the choice of inaction is essential; to provide none undermines the credibility of these government and legal institutions. These decisions have left us only with unanswered questions about why the court and the Board would not investigate serious allegations of a psychologist’s involvement in torture.
The breadth of the implications that flow from the court’s ruling and its paucity of analysis is striking. In concluding that the Board had no legal obligation to meaningfully investigate Dr. James, the court said we had “cited no legal authority requiring [the Board] to initiate disciplinary action against a licensee or to provide an explanation of a decision not to pursue formal action.” The court focused on the use of the word “may” in the Ohio Revised Code, in relation to the Board’s authority to “issue a reprimand or suspend or revoke the license of a psychologist.” The court’s interpretation implies that the Board has unlimited discretion to act—or not act—whenever it chooses, and to do so without explanation. No further analysis is provided; the court says nothing to limit the ruling to this case.
I find it hard to believe that a legislature would create an agency to monitor the practice of psychology for the protection of the public and endow it with unlimited powers to do whatever it wants. The court’s opinion leaves open the fundamental question about when—if ever—a court would intervene and say the Board must act. What if a psychologist admitted to harming a patient using his professional training? Could the Board just do nothing?
Our institutions can do better than this. They should.
Terry Lodge, co-counsel and Ohio-licensed attorney
Dismissal for want of legal standing is a thin excuse to not rule on the complaint we filed with the Ohio Board of Psychology, and it underscores the national crisis we face. Essentially, there is no accountability in government in matters of war-making and national security, and this is undermining the healing arts. The Pentagon requires medical professionals in its ranks to be licensed in one of the 50 states, but because of the misplaced perception among the states that they have no regulatory responsibility, there is no concomitant accountability for professional misconduct.
Actual, provable human rights violations and war crimes have been committed, repeatedly, by the American military and its psychologists in the prosecution of the “war on terror.” Unfortunately, Terror has won.
The Ohio Psychology Board pronounced that, “It has been determined that we are unable to proceed.” The “it” that “determined” that the Ohio Board of Psychology was “unable to proceed” to discharge its obvious legal responsibility was Terror, or more properly, the politics of terror. The politics of terror prevented the Ohio Board from investigating the evidence-drenched allegations of Larry James’s involvement in the torture planning and implementation at Guantánamo. Terror politics “determined” that the dean of Wright State University’s School of Professional Psychology would have no formal accountability moment, despite strong evidence of willful and routine violations of his oath to uphold the laws and the Constitution of the United States while in uniform. These same politics of terror “determined” that the Ohio Board of Psychology should prostrate its members’ integrity and tacitly endorse the weaponization of the healing art of psychology as a tool for war-making.
Reason would limit interrogation behavior to exclude torture. The court’s refusal to judge the use of healing psychological knowledge as a tool of torture makes clear that the politics of terror have prevailed over reason in the judiciary as well.
For more information on this case, including all the legal filings, see our page, Dr. Trudy Bond et al. v. Larry James. For the larger context, see our pages on health professionals and torture, professional misconduct complaints, and counterterrorism and human rights.