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Sunday, November 25, 2007

Strengthening the APS Resolution on Torture and CID

Posted by Michael Otterman at 10:39 PM |

In September 2007, the Australian Psychological Society (APS) passed a strongly worded resolution banning its members from condoning or participating in torture and cruel, inhuman or degrading (CID) procedures. This resolution is crucial and well-intentioned, but technically flawed. Let me explain why.

The APS resolution was penned in opposition to the American Psychological Association's (APA) current position of allowing its members to actively participate in "national security" interrogations. To its credit, APA members are banned from participating in the following tortures: mock executions, waterboarding or any other form of simulated drowning or suffocation, sexual humiliation, rape, cultural or religious humiliation, exploitation of phobias or psychopathology, and induced hypothermia. But, the APA allows its members-- according to the wording of a 2007 resolution-- to assist in detention operations involving psychotropic drugs, mind-altering substances, hooding, forced nakedness, stress positions, the use of dogs, physical assault including slapping or shaking, exposure to extreme heat or cold, and threats of harm or death, isolation, sensory deprivation, over-stimulation and sleep deprivation. These clearly constitute CID treatment, if not outright torture.

The APA permits its members to participate in the CID treatment listed above by defining CID using loop-hole laden terms favoured by the Bush Administration. According to the 2007 APA Resolution, the APA defines
the term "cruel, inhuman, or degrading treatment or punishment" to mean treatment or punishment by a psychologist that, in accordance with the McCain Amendment, is of a kind that would be "prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States"...
What does this mean? Well, according to former Assistant Attorney General William Moschella:
With respect to treatment of detainees by the United States Government… the pertinent Amendment is the Fifth Amendment. As relevant here, that Amendment protects against treatment that, in the words of the Supreme Court, “shocks the conscience,” such as (again in the words of the Court) “only the most egregious conduct,” such as “conduct intended to injure in some way unjustifiable by any government interest.”
Therefore, an act can only constitute CID if it "shocks the conscience". As further explained by Dick Cheney:
If it's something that shocks the conscience, the court has agreed that crosses over the line.

Now, you can get into a debate about what shocks the conscience and what is cruel and inhuman. And to some extent, I suppose, that's in the eye of the beholder. But I believe, and we think it's important to remember, that we are in a war against a group of individuals and terrorist organizations that did, in fact, slaughter 3,000 innocent Americans on 9/11, that it's important for us to be able to have effective interrogation of these people when we capture them.
Cheney's logic follows that if an individual with knowledge about an imminent terrorist attack is captured, methods like hooding, drugging, and long time standing do not "shock the conscience" in light of the importance of getting information. Given they do not shock the conscience, they do not constitute CID treatment. It is in this way that the APA can be formally against torture and CID but still allow their members to help with sensory deprivation, hooding, standing, etc.

Back to the APS. The current APS torture resolution does not define the phrase "cruel, inhuman, or degrading" treatment. To avoid any debate, I think the term should be understood using language from UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment. According to Principle Seven:
the term "cruel, inhuman or degrading treatment or punishment" should be interpreted so as to extend the widest possible protection against abuses, whether physical or mental, including the holding of a detained or imprisoned person in conditions which deprive him, temporarily or permanently of the use of any of his natural senses, such as sight or hearing, or of his awareness of place and the passing of time.
Principle Seven explicitly bans the entire set of CID treatment currently authorized by the Bush Administration and the APA. If American Psychological Association leadership was serious about banning psych-participation in all forms of torture and CID, they would adopt the language of Principle Seven.

At least the APS is on the right track. According to Arthur Veno and Julie van den Eynde of the APS, a clause incorporating CID-defining language of Principle Seven "will be brought forward to both the Australian Psychological Society and The International Congress of Psychology to be held in 2008 in Europe." If it passes, it can only add to the pressure on APA leadership to swear off all forms of torture and CID treatment once and for all.