FAQs About 35B, July 2018

Q What is current policy regarding psychologists’ involvement at Guantanamo and other illegal sites?

A A bit of history is in order here. In 2004 we learned that the International Committee of the Red Cross had declared the conditions at Guantanamo tantamount to torture. The ICRC found that health professionals were conveying “information about prisoners’ mental health and vulnerabilities to interrogators” in a “flagrant violation of medical ethics.” The Senate Armed Services Committee would later confirm these findings showing that psychologists played a critical role in establishing and legitimizing the abusive practices at Guantanamo. ¹

In the face of dedicated opposition from a small group of military psychologists who had served at Guantanamo, APA’s membership voted overwhelmingly, in 2008, in favor of a policy to prevent psychologists from participating in operations that violated international human rights law at places like Guantanamo Bay.

Council reaffirmed this policy in 2009, 2013 and again in 2015. The policy states that detainees are entitled to treatment from independent psychologists who work for the detainees or for independent human rights groups. This is fully consistent with the Geneva conventions and international human rights law. The policy states further that psychologists may not work in sites that systematically violate the United Nations Convention on Human Rights. Currently, the U.S. military has agreed not to deploy psychologists to Guantanamo Bay.

Q What is NBI 35B and why do you oppose it?

A 35B is bill that would reverse this policy and return military psychologists to Guantanamo Bay. This is an especially troubling development at this time insofar as the Administration has signaled its desire to return to and enhance Guantanamo’s worst abuses. President Trump has promised to “fill up” Guantanamo and to bring back interrogation techniques like waterboarding and “a hell of a lot worse”. He has recently appealed to Congress to build a geriatric facility at Guantanamo, signaling that one of the most egregious violations of international law, indefinite detention without trial, is likely to remain U.S. detention policy. Gina Haspel, who was in charge of a CIA ‘black site’ where two psychologists committed acts of torture and who personally oversaw destruction of evidence of abuses, is now Director of the CIA. Passage of 35B will likely be seen by the public and the press as a signal that APA supports the Trump administration’s detention and interrogation policy. It will certainly ignite reasonable concern that psychologists, who designed the torture program at the CIA and at Guantanamo, might return to their past abuses.

Q I’ve heard that current APA policy is preventing psychologists from offering health care to detainees.

A This is false. Existing APA policy allows psychologists to work in settings that violate international law if they are working directly for the victim of ill treatment or for groups like the Red Cross or the Centers for Victims of Torture.

Q I’ve heard that APA’s policy is causing the Department of Defense to violate the Geneva conventions at places like Guantanamo because the military cannot provide prisoners with medical care.

A This is false. APA’s current policy, which calls for independent psychologists to treat detainees, is consistent with international human rights standards and the Geneva Conventions. Article III, chapter 30 of the third Geneva Convention states:

Prisoners of war shall have the attention, preferably, of medical personnel of the Power on which they depend and, if possible, of their nationality.

In addition, the United Nations Rapporteur on Torture, in his Special Report to the United Nations General Assembly in 2017, clarified the requirements of the standards:

International standards provide for prompt and regular access to medical care for persons deprived of liberty. States are obligated to guarantee the availability of prompt, independent, impartial, adequate and consensual medical examinations at the time of arrest and at regular intervals thereafter. Medical examinations must also be provided as soon as a detainee enters a custodial or interview facility and upon each transfer. Prompt, independent, impartial and professional examinations in accordance with the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment must be carried out pursuant to allegations of mistreatment or any sign that mistreatment may have occurred (see A/68/295 and E/CN.4/2004/56). The well-established prohibition against medical personnel engaging, actively or passively, in acts that may constitute participation in, complicity or acquiescence in, incitement to or attempts to commit torture or ill-treatment (see CAT/C/51/4) merits recalling.

See also articles 10, 11 and 12 of the second convention which address the participation of independent aid societies, and articles 14 and 17 of the optional protocols which address the operation of civilian medical services.

Thus, if a setting violates international law psychologists can work directly for the victims of abuse but not for the command that perpetrates that abuse. The new policy proposal does exactly that: it requires that psychologists who treat detainees work for the command and not for the detainees. In spite of claims to the contrary, the new policy is inconsistent with international law and with the United Nations Rapporteur’s clarification of States’ obligations under the Geneva conventions.

So currently there are two ways the U.S. could provide adequate treatment to detainees. First, they could follow the requirements of Geneva and the United Nations Convention Against Torture and permit independent health professionals access to its detainees. And second, they are currently being treated by military social workers and psychiatrists, who are more willing than psychologists to participate in systems condemned under international law.

Q Doesn’t Geneva require that medical care be provided by military health professionals and not independent ones?

A Just the opposite is true. While Geneva does allow prisoners and civilians to be treated by the force that captured them it prefers that treatment be given by either a neutral party or by a party from the prisoner’s home country.

Article III, chapter 30 of the third Geneva Convention states:

Prisoners of war shall have the attention, preferably, of medical personnel of the Power on which they depend and, if possible, of their nationality.

See also articles 10, 11 and 12 of the second convention which address the participation of independent aid societies, and articles 14 and 17 of the optional protocols which address the operation of civilian medical services.

Q Would returning military psychologists to Guantanamo put the prison in compliance with international law?

A No. The United Nations High Rapporteur on Torture has declared Guantanamo to be in violation of international law because it practices indefinite detention and because it practices forced-feeding of competent hunger-strikers. Multiple UN rapporteurs have come together to confirm that decision and to call for the closure of the site. ²

Q I’ve heard that Guantanamo has been cleaned up and no longer violates international law.

A The U.S. has said this in the past but the Trump Administration continues to refuse to allow UN inspectors, including the UN Rapporteurs, the access they need to verify these claims. These claims are contested by former Guantanamo prisoners and many human rights organizations.^{2, 3} Instead, places like Guantanamo continue to violate human rights by continuing to detain prisoners indefinitely. Without policy intervention, the detainees will spend their lives without access to justice.

Q It sounds like these men need mental health care. Doesn’t existing APA policy limit the care prisoners can receive?

A We believe that the best care would come from independent psychologists who will not be pressured into avoiding questions about torture, would not rotate out after 3 – 9 months and who would not be forced to hide behind a pseudonym.

The US military is responsible for restrictions on care, in violation of international law. APA’s current policy strives to bring in psychologists with expertise in torture rehabilitation, ones who can build real trust, and create a therapeutic alliance, all of which is consistent with international human rights standards.

Q I’m told that the mental health care services provided at places like GITMO try to give good services in very difficult situations, where are you getting your information?

A We strongly recommend that all psychologists read the New York Times article: Where Even Nightmares are Classified: Psychiatric Care at Guantanamo.

The health professionals who speak anonymously paint a very different picture of Guantanamo’s mental health services than the representation offered by Guantanamo’s defenders.

This article describes how military psychologists and psychiatrists at Guantanamo failed to inquire into past histories of torture and abuse. It quotes former Army psychiatrist Brig. Gen. (Ret.) Stephen N. Xenakis:

“You cannot provide psychological treatment if you never look into what happened to them when they /the detainees/ are tortured…. The psychologists and psychiatrists at Guantánamo are not meeting the standards of care of the military or the profession.”

The documentary track record of psychologists working with detainees at Guantanamo is poor. Documents released by Freedom of Information Act included the statement of a detainee in 2009 (Mohamed Al Hanashi) who singled out “inappropriate behavior” by the Chief Psychologist at Guantanamo (“someone who is supposed to be in a humanitarian position”) as a reason for him to kill himself. The Chief Psychologist himself told NCIS personnel who were investigating Al Hanashi’s death that he routinely ignored detainee complaints of torture.

Q Doesn’t 35B does require independent psychologists to work at Guantanamo?

A No. While 35B claims to “encourage” APA to advocate for independent psychologists, its main point is to return military psychologists, without independent monitoring or accountability, to these settings – settings where the aim of the command is to ensure prisoner “compliance” rather than prisoner “well-being.” If the APA approves such a change, the pressure to bring independent psychologists with genuine expertise in torture treatment and rehabilitation into Guantanamo will dissipate and prisoners will be denied the expert treatment they need.

Q Why wouldn’t you believe that the psychologists at Guantanamo would resist pressures imposed by the Pentagon and operate freely and professionally?

A Because the overwhelming weight of evidence indicates otherwise. An independent study by Brig. Gen (Ret.) Xenakis and Vincent Iacopino demonstrated that the diagnoses at GITMO were systematically biased in a way that served the needs of the Pentagon over those of the detainees. ⁴

Furthermore, it goes against everything we psychologists have learned regarding the immense power of situational factors on individual behavior. Expecting someone to resist serious pressures from their superiors is an expectation of heroism; heroism is not a solid basis for policy.

Q Does the revised ethics code give psychologists the tools they need to operate ethically inside Guantanamo, CIA black sites and other illegal settings?

A In a word: no.

Our ethics code did not prevent health professionals from producing biased diagnoses; it did nothing to prevent military psychologists from training interrogators to use abusive techniques inside Guantanamo or inside secret CIA Black Site prisons. ⁵

That is why the APA established a blue ribbon panel on ethics processes. This panel recommended a series of deep, structural changes to the association. Changing a few words in the existing code is no substitute for the recommendations of this panel of human rights and medical ethics experts. We are deeply disturbed that the recommendations of this panel are being ignored.

Q Could this return psychologists to the interrogation process?

A In the short term, maybe not, in the long term yes. We fear that 35B is the first part of a multi-part strategy to undo the reforms enacted in the wake of the Hoffman report. Indeed one part of APA leadership, the committee on legal issues (COLI), endorsed the effort exactly because they saw it as avenue to return psychologists to the business of interrogation. Also, the current leadership of the division of military psychology has vowed to undo all of the post-Hoffman reforms regarding appropriate ethical activities for psychologists.