State of Idaho
Bureau of Occupational Licenses
1109 Main Street, Suite 220
Boise, Idaho 83702-5642
April 7, 2010
Idaho Board of Psychologist Examiners Complaint – John B. Jessen (License No. Psy-195)
Dear Sir or Madam,
As a former member of the Idaho Board of Psychologist Examiners and as a psychologist licensed in the State of Idaho, I hereby submit to the Board a signed complaint form against Idaho licensee John B. Jessen (License No. Psy-195).[1] Dr. Jessen has been licensed by this Board since 1987 and is not licensed in any other state; thus the Idaho Board of Psychologist Examiners is the only body with jurisdiction over this complaint. In his capacity as a government psychologist and private contractor, Dr. Jessen has misused his professional credentials to advance his career in a reckless and unethical manner. In the process, he has violated the professional standards set forth under Idaho law for licensed psychologists. Dr. Jessen has directly facilitated the infliction of severe psychological harm on human beings, and these transgressions have been made possible by his status as a licensed psychologist. Dr. Jessen’s continued licensure threatens the safety of Idaho’s citizens and their confidence in the integrity of the profession.
Respectfully submitted,
[Name, title, contact information]
Idaho Board of Psychologist Examiners Complaint
John B. Jessen (License No. Psy-195)
Contents
II.. The Board’s Jurisdiction over this Complaint.
III. Dr. Jessen’s Practices Warranting Investigation and Disciplinary Action.
A. Dr. Jessen’s Advocacy, Design, and Implementation of Abusive Interrogation Methods.
1. Dr. Jessen’s activities in the Department of Defense.
2. Dr. Jessen’s activities as a CIA contractor.
3. The torture of abu Zubaydah.
1. Dr. Jessen acted outside of the bounds of his professional competence.
2. Dr. Jessen offered false assurances of the usefulness of his recommended techniques.
IV. Dr. Jessen’s Violation of the APA’s Ethical Principles of Psychologists and Code of Conduct.
1. The APA’s Code of Ethics is incorporated into the Idaho Administrative Code by statute.
B. Dr. Jessen violated numerous elements of the APA Code and Idaho law.
C. Section 1.02 of the APA Code of Ethics provides no defense for Dr. Jessen’s violations.
V.. Request for Investigation.
I. Complaint Summary.
As a psychologist employed by the Department of Defense, Bruce Jessen’s professional duties consisted of training military personnel to endure abuse at the hands of enemy captors. Beginning in 2001, however, Dr. Jessen embarked on a campaign within the military and intelligence communities to promote the safety and efficacy of an unproven and abusive interrogation program. Dr. Jessen sought to advance his career by positioning himself as an interrogation specialist who could provide expert advice on what he called the “exploitation of detainees.” In a radical departure from the American military tradition of treating detainees humanely, Dr. Jessen’s “exploitation” methods centered around the calculated infliction of physical and psychological harm on U.S. captives. These methods were modeled on the enemy techniques that he had long taught American personnel how to endure.
Dr. Jessen marketed himself as a professional interrogator, immersed in the nuanced complexity of “aggressive” techniques, and abundantly qualified to unlock the secrets of captured Muslim extremists. In fact, however, Dr. Jessen had never conducted an interrogation in his life. He had never studied the science of forensic interrogations, had never trained as an interrogator, and had no familiarity with – let alone expertise in – religious fundamentalism or Al Qaeda. Dr. Jessen wrote his doctoral dissertation on family sculpting, a form of therapy in which patients make physical models of their family to portray emotional relationships.[2] With no training or experience in interrogation, Dr. Jessen had no basis on which to assert that the methods he advocated would lead to truthful confessions, nor that they would be safe – either for the prisoners interrogated or for the American personnel he enlisted in his plan. The techniques that Dr. Jessen advocated were ultimately derived from communist enemies of the United States who used them to elicit false confessions from American soldiers.
Dr. Jessen soon progressed from designing and promoting abusive interrogation practices to personally supervising their use on detainees. His proposals found a receptive audience in the Central Intelligence Agency (“CIA”), an organization that lacked prior experience in prisoner interrogation but that rapidly sought to develop such a program in 2002. In July of that year, Dr. Jessen left the Department of Defense and immediately began work as a contract psychologist for the CIA, which reportedly paid him $1,000 to $2,000 a day. As a CIA contractor, Dr. Jessen began to personally implement his theories on coercive interrogation. Dr. Jessen traveled to secret CIA detention facilities where he supervised the abuse of captives in a role the CIA Inspector General would later term “psychologist/interrogator.” Dr. Jessen dishonestly vouched for the long-term safety of the coercive methods he favored, thereby providing a fig leaf that helped the CIA obtain authorization from the Justice Department to use specific abusive techniques that he devised. Many of these techniques constitute torture, and all of them involve the deliberate infliction of psychological harm on defenseless captives. Dr. Jessen further betrayed his ethical responsibilities by developing psychological profiles of individual detainees so that interrogators could exploit their particular phobias and weaknesses. By directing the torture and abuse of persons in CIA custody, and by misusing his psychological expertise to most effectively torment these individuals, Dr. Jessen violated the most basic standards of care that are expected of psychologists. In fact, Dr. Jessen very clearly violated several sections of the American Psychological Association (“APA”) Code.
The brutality of Dr. Jessen’s interrogation methods can be seen in the case of the first detainee to whom they were comprehensively applied. Abu Zubaydah, a Palestinian national, was the first suspect captured by the CIA believed to be a high-ranking member of Al Qaeda. After his apprehension in 2002, abu Zubaydah was held in a series of secret CIA prisons, or “black sites,” located around the world. In 2006, he was transferred to the Guantanamo Bay detention facility, where he remains today. The government’s early claims that abu Zubaydah was an al Qaeda leader appear to have been mistaken. He has never been charged with any crime, and the government has not furnished any evidence to support its claims. In recent years, numerous U.S. intelligence officials have publicly declared that he was not in fact a high-ranking Al Qaeda figure, and he has consistently denied even being a member of Al Qaeda or the Taliban.
While holding abu Zubaydah in captivity, the CIA engaged in a regime of abuse and torture against him that was designed and implemented by Dr. Jessen and a fellow “psychologist/interrogator.” Under Dr. Jessen’s plan, interrogators repeatedly beat abu Zubaydah and slammed him into walls. They kept him naked for weeks in an artificially cold cell, shackled in a painful position while continuously kept awake through water dousings and an unceasing bombardment of noise. Under Dr. Jessen’s leadership, interrogators exploited abu Zubaydah’s frail medical and psychological state, placing him for extended periods in small, coffin-like boxes designed to cause him severe pain by inducing prolonged stress on his limbs and reopening recent wounds. To compound the torment, Dr. Jessen devised a scheme to exploit abu Zubaydah’s intense fear of insects by placing them inside these boxes with him. Finally, Dr. Jessen’s interrogators subjected abu Zubaydah to waterboarding, a form of torture described by U.S. personnel who have experienced it as worse than cutting off a finger. Abu Zubaydah was ultimately waterboarded 83 times under Dr. Jessen’s supervision. After inflicting these inhumane methods on abu Zubaydah, Dr. Jessen supervised their use on numerous other detainees in secret CIA prisons.
Dr. Jessen has compromised the integrity of the psychological profession in a way that has caused irreparable harm to other human beings and to the profession itself. Under the guise of sophisticated professional expertise, he orchestrated a barrage of simplistic cruelty whose details have become known to the world. Taking advantage of a moment of national crisis, he misrepresented his qualifications in order to peddle untested methods that jeopardized the well-being of interrogators and detainees alike.
Dr. Jessen’s misdeeds are not about the war on terror, they are about the war on professional integrity. Transgressing the most basic ethical principles of his profession, as well as longstanding military traditions of humane treatment, Dr. Jessen’s misrepresentations about his proficiency and the legitimacy of his proposed techniques culminated in the torture of numerous individuals. These misrepresentations, and his direct participation in the abuse of captives, violate several sections of the APA Code.
The role of this Board is to evaluate the appropriateness of Dr. Jessen’s behavior as a psychologist under the professional standards set forth by the state of Idaho The details of Dr. Jessen’s actions have been well-documented, not only in the press but in numerous official investigative reports by the U.S. government. The function of these reports is to assess the propriety of governmental policies and the legality of conduct by governmental actors.
Psychologists are healers and discoverers, not torturers. But at every turn, Dr. Jessen chose to ignore his professional obligations while exploiting his credentials and misusing his training to torment defenseless captives. A person who flagrantly abuses established professional standards in this manner should not be allowed to be a licensed psychologist. Dr. Jessen is unfit to be licensed by this body, and should no longer be permitted to practice psychology. His actions and the harm they have caused reflect upon the state of Idaho and its standards for professional licensing. This Board is entrusted to “protect the public health, safety and welfare through the licensure and regulation of those who practice psychology in Idaho.”[3] It is therefore incumbent upon the Board to demonstrate its rejection of the tactics employed by Idaho-licensed psychologist Dr. Jessen. The safety of patients and the reputation of the profession depend on it.
Pursuant to state law, the Board has been given the authority to investigate and, where appropriate, discipline Idaho licensees such as Dr. Jessen. I respectfully urge the Board to revoke Dr. Jessen’s license and take other disciplinary actions in accordance with the gravity of the allegations in this complaint.
II. The Board’s Jurisdiction over this Complaint.
This Board is authorized to investigate Dr. Jessen and, if appropriate, to suspend, restrict otherwise to discipline him.[4] This Board is in fact the only body with the power to investigate Dr. Jessen’s professional misconduct. Dr. Jessen is not licensed in any other state, nor is he a member of the APA.[5] No other forum exists in which Dr. Jessen’s potential violation of his ethical responsibilities may be authoritatively investigated.
This Board conferred on Dr. Jessen his credentials as a licensed psychologist in 1987. In doing so, the Board invested him with its imprimatur, affirmed his fitness to engage in the profession, and entrusted him with the duty to adhere to professional conduct befitting his license. Dr. Jessen’s status as a licensed psychologist lent credibility to his proposals for an otherwise unproven and radical interrogation program and further enabled him to obtain a lucrative position as one of the so-called “psychologist/interrogators”[6] paid by the CIA to direct the abusive interrogation of detainees. In short, Dr. Jessen regularly relied on his professional status to take actions counter to the Board’s mandate. This Board therefore has a duty to undertake a serious investigation into whether Dr. Jessen breached that trust by violating the ethical standards he pledged to uphold under Idaho law.[7]
Dr. Jessen’s actions are not absolved from scrutiny merely because they occurred outside the State of Idaho. State professional licensing boards commonly consider actions that take place outside their own state when investigating or reprimanding professionals they have licensed,[8] and Idaho is no different. Idaho’s statutes impose no geographical restriction on the conduct that the Board may consider when carrying out its oversight responsibilities. In the absence of such limiting language, the Board must examine behavior that occurred outside of state borders.[9] In fact, far from limiting the geographical range of the behavior that the Board may consider, Idaho statutes expressly identify certain out-of-state conduct that renders a psychologist subject to discipline.[10] Therefore, the statutes clearly contemplate that behavior outside the state is not exempt from scrutiny by the Board.[11]
If the Board were to ignore unethical conduct by Idaho-licensed psychologists simply because it took place outside of the state, the Board would be neglecting its statutory mandate “to protect the public from unprofessional, improper, unauthorized and unqualified practice of psychology, and from unprofessional conduct by persons licensed to practice psychology.”[12] The state legislature has instructed that “[t]his act should be liberally construed to carry out these objects and purposes.”[13] The Board’s duty to protect the public requires it to inform the public about these psychologists’ misconduct by reprimanding those who violate ethical norms.[14] When necessary, this duty also requires suspending or revoking a psychologist’s license to prevent the psychologist from committing future violations. Failure to determine whether disciplinary measures against Dr. Jessen are warranted would endanger members of the public who may come into professional contact with him in the future. Idaho’s stated purpose for regulating the psychological profession – along with its clear instruction to construe this regulatory authority broadly – indicates that licensed psychologists should not be exempt from scrutiny for their misconduct merely because they were present in another state when they engaged in this misconduct.[15]
III. Dr. Jessen’s Practices Warranting Investigation and Disciplinary Action.
A. Dr. Jessen’s Advocacy, Design, and Implementation of Abusive Interrogation Methods.
1. Dr. Jessen’s activities in the Department of Defense.
Dr. Jessen advocated, designed, and implemented abusive interrogation methods while employed by the Department of Defense. In the 1980s, Dr. Jessen became the senior psychologist at the Air Force’s school for Survival, Evasion, Resistance, Escape (“SERE”) training, located on Fairchild Air Force Base outside Spokane, Washington. In 1988, Dr. Jessen became an employee of the Defense Department’s Joint Personnel Recovery Agency (“JPRA”), which oversees the SERE program across the various branches of the military and operates its own SERE school a few miles from Fairchild Air Force Base.[16] Dr. Jessen was the senior SERE psychologist at JPRA.
SERE is a long-standing component of elite military training. In addition to strategies on survival and how to avoid capture, the SERE program teaches soldiers how to endure enemy interrogation, even when methods of torture are used. SERE training involves inflicting extreme “physical and psychological pressures” on service members in order “to replicate harsh conditions that the Service member might encounter if they are held by forces that do not abide by the Geneva Conventions.”[17] The techniques used in SERE schools are based in part “on Chinese Communist techniques used during the Korean war to elicit false confessions.”[18] These techniques include “stripping students of their clothing, placing them in stress positions, putting hoods over their heads, disrupting their sleep, treating them like animals, subjecting them to loud music and flashing lights, and exposing them to extreme temperatures.”[19] These methods are carried out “in a highly controlled environment” in order to equip U.S. military personnel “with the skills needed to increase resistance to hostile interrogations.”[20] Mock interrogations are thus a crucial component of SERE training, but importantly, “those who play the part of interrogators in SERE schools neither are trained interrogators nor are they qualified to be.”[21] There is a bright line between SERE training real-world interrogations and Dr. Jessen undertook to blur this line.
Beginning in 2001, Dr. Jessen’s career path changed drastically. From a position at JPRA in which he sometimes engaged in mock interrogations, he began to market himself as an expert who could train soldiers and intelligence agents on how to extract information from terrorism suspects. He used this role as a launching pad into the lucrative world of CIA contractors.
To this end, Dr. Jessen crafted and promoted an interrogation program designed to abuse and degrade detainees, breaking them down physically and psychologically. Dr. Jessen modeled his approach on the techniques that he had long taught SERE trainees how to endure. Dr. Jessen promoted the safety and efficacy of the SERE mock interrogation methods – and his own purported expertise – despite the fact that neither he nor his agency had any experience in conducting real interrogations, and despite a complete lack of evidence that the proposed techniques would adequately protect the physical and mental safety of detainees or the interrogators.
During this time, Dr. Jessen’s government contacts extended beyond the JPRA to include the CIA, in part thanks to his former (and future) colleague Dr. James Mitchell. Dr. Mitchell had taken Dr. Jessen’s place as a psychologist at the Air Force SERE school when Dr. Jessen left for the nearby JPRE school. The men became acquainted while holding these respective positions, reportedly taking weekend outdoors excursions together;[22] a recent investigative report described them as “long-time friends and colleagues.”[23] In retirement, Dr. Mitchell took on several entrepreneurial projects to supplement his income, including turning his attention to the potentially lucrative role he might be able to play in the campaign against Al Qaeda after September 11, 2001.[24] The CIA eventually retained Dr. Mitchell as an independent contract psychologist. Dr. Mitchell asked Dr. Jessen to join him on the project.[25]
The CIA tasked the two psychologists with researching resistance techniques, but Dr. Mitchell and Dr. Jessen took it upon themselves to propose offensive interrogation techniques. In doing so, they were able to prolong their lucrative contract with the CIA. The result was a paper coauthored by Dr. Mitchell and Dr. Jessen in late 2001, titled “Recognizing and Developing Countermeasures to Al-Qa’ida Resistance to Interrogation Techniques: A Resistance Training Perspective.”[26] Their paper represented the first proposal to turn SERE-derived methods – which were based on enemy techniques designed to induce false confessions – into an American interrogation program.[27]
Dr. Jessen used his work with Dr. Mitchell to advance these ideas within the Department of Defense. He circulated the paper he wrote to officers higher in the chain of command.[28] Thanks to Dr. Jessen’s efforts, a JPRA team traveled to Guantanamo to “provide instruction on basic and advanced techniques and methods” in countering resistance.[29]
Increasingly, Dr. Jessen positioned himself as an expert consultant, offering instruction in the use of coercive interrogation methods to other governmental agencies. In February 2002, Dr. Jessen co-taught a two-week “ad hoc ‘crash’ course on interrogation” for the Defense Intelligence Agency to the “next crew (rotation) going to [the United States Southern Command].”[30] He also participated in a video teleconference with Guantanamo interrogation staff, and with the leadership of an agency whose identity remains classified.[31] (An investigative report by the Senate Armed Services Committee, from which much of the information about Dr. Jessen’s activities is known, indirectly reveals that this agency was likely the CIA.)[32] Dr. Jessen admitted to the Committee that he “went to make a ‘pitch’ to [this agency] about how JPRA could assist.”[33]
Dr. Jessen and a colleague instructed members of the U.S. military on how coercive practices could be used to “exploit” al Qaeda detainees.[34] In a March 8, 2002 training session on “detainee exploitation”,[35] Dr. Jessen “described phases of exploitation and included instruction on initial capture and handling, conducting interrogations, and long-term exploitation. The exploitation presentation also included slides on ‘isolation and degradation,’ ‘sensory deprivation,’ ‘physiological pressures,’ and ‘psychological pressures.’”[36] Other slides instructed interrogators to “establish absolute control, induce dependence to meet needs, elicit compliance, shape cooperation.”[37] Techniques included “isolation or solitary confinement, induced physical weakness and exhaustion, degradation, conditioning, sensory deprivation, sensory overload, disruption of sleep and biorhythms, and manipulation of diet.”[38] Dr. Jessen recommended “a more ‘exploitation oriented’ approach” in future trainings.[39] Dr. Jessen and a colleague also drafted a memorandum on the treatment of prisoners at Guantanamo Bay.[40] The memorandum recommended that “GTMO tailor punishment to maximize cultural undesirability and tailor rewards to maximize desirability.”[41]
In April 2002, Dr. Jessen proposed a system of detainee interrogation strikingly similar to the system of black site interrogation techniques soon adopted by the CIA. Dr. Jessen circulated the plan, which he referred to as “my” plan, on April 16, 2002.[42] The plan described “the means by which detainees would be transported and held there” and laid out a formula of abusive techniques.[43] Apparently recognizing the controversial nature of his proposed methods, Dr. Jessen advocated that the “exploitation facility” be closed to press, the International Committee of the Red Cross, and foreign observers, in order to better “[h]old, manage and exploit detainees to elicit critical information.”[44]
At some point during the first six months of 2002, Dr. Jessen assisted with the preparation of a CIA officer being “sent to interrogate a high level al Qaeda operative.”[45] As part of this “training,” Dr. Jessen suggested “exploitation strategies” to the officer. Dr. Jessen admitted to the Armed Services Committee that he conferred with an individual “who was en route to an interrogation.”[46]
In the summer of 2002, just before his sudden departure from the Department of Defense to become a CIA contractor, Dr. Jessen was an integral part of a JPRA “training and pre-mission preparation” session for a group of officers from the CIA.[47] The CIA requested that Dr. Jessen provide a two-day training on topics such as “exploitation and questioning techniques,” “[redacted] deprivation techniques,” and “developing countermeasures to resistance techniques.”[48] The training was intended to “prepare [redacted] officers for rotations in Afghanistan and elsewhere.”[49] A JPRA officer “explained to his point of contact [redacted] that their ability to support the request was hindered by Dr. Jessen’s availability, who [the officer] described as ‘critical in providing the degree of support that [redacted] is requiring.’”[50]
Dr. Jessen developed a lesson plan “covering the ‘full spectrum [of] exploitation,’” consisting of explanations and demonstrations of SERE techniques that included but was not limited to slaps, hooding, stress positions, walling, immersion in water, stripping, isolation, and sleep deprivation.[51] Under Dr. Jessen’s directions, JPRA personnel also provided instruction on waterboarding, a practice long rejected by the U.S. military as torture. Indeed, at the time, waterboarding was prohibited at the JPRA, Army, and Air Force SERE schools even for survival training purposes.[52] None of the JPRA personnel who provided this instruction had ever conducted waterboarding, and they would not have been allowed to do so at any SERE school, let alone as part of an actual interrogation.[53]
In July 2002, after the JPRA training, Dr. Jessen was detailed for several days to the CIA.[54] After this assignment, he abruptly retired from the Department of Defense and “began working as an independent contractor” for the CIA.[55]
2. Dr. Jessen’s activities as a CIA contractor.
Subsequent to his employment with the Department of Defense, Dr. Jessen advocated, designed, and implemented abusive interrogation methods as a CIA contractor. According to two former high-ranking CIA officials, “Mitchell and Jessen were the architects of the CIA’s interrogation program, and were hired as independent contractors to administer and direct the so-called ‘high value detainee’ interrogation.”[56] Immediately upon his departure from the military, Dr. Jessen incorporated “Bruce Jessen, LLC” in Washington State and joined Dr. Mitchell as an independent CIA contractor,[57] traveling to the CIA black site where abu Zubaydah was being held.[58] According to an ABC News investigation, both Dr. Jessen and Dr. Mitchell “are said to have been present in multiple CIA secret prisons . . . regulating everything from sleep deprivation and stress positions to forced nudity and placing insects in a ‘confinement box.’”[59] Their approach was reportedly to “break down [the detainees] through isolation, white noise, completely take away their ability to predict the future, create dependence on interrogators.”[60] One investigative report found that the pair traveled the world for the CIA and told friends that for their services overseas they were paid $1,000 a day, tax-free, plus expenses.[61] Another investigation described their compensation as between $1,000 and $2,000 a day each.[62] The company formed by the two men – Mitchell, Jessen and Associates – at its height reportedly employed 120 people,[63] occupied a Spokane office suit priced at $7,346 per month,[64] and held CIA contracts totaling well into the millions of dollars.[65]
According to a report by the CIA’s Office of the Inspector General, psychologists were heavily involved in each phase of the interrogations at CIA black sites, including the use of waterboarding and other abusive techniques. By November 2002, the CIA had another suspected high-value detainee, `Abd Al-Rahim Al-Nashiri, in custody.[66] The Inspector General Report states that “psychologist/interrogators began Al-Nashiri’s interrogation using [enhanced interrogation techniques] immediately upon his arrival.” This “enhanced” interrogation of Al-Nashiri continued into December.[67] The Report explains that “psychologist/interrogators . . . led each interrogation of Abu Zubaydah and Al-Nashiri where enhanced interrogation techniques were used. The psychologist/interrogators conferred with . . . team members before each interrogation session. Psychological evaluations were performed by [the] psychologists.”[68] Interrogators waterboarded abu Zubaydah at least 83 times during August 2002, and Al-Nashiri was waterboarded as well.[69]
The CIA Report suggests that Dr. Jessen, as one of the “psychologist/interrogators” who led the questioning of Al-Nashiri, did more than merely recommend the usefulness of waterboarding while allowing other interrogators to carry it out. Rather, the psychologists personally took part in inflicting this technique on the detainee: “On the twelfth day of the interrogation . . . psychologist/interrogators administered two applications of the waterboard to Al-Nashiri during two separate interrogation sessions.”[70]
Dr. Jessen’s participation in “exploitation” techniques such as beatings, painful shackling, confinement in coffin-like boxes, and sleep deprivation, represent a serious deviation from his proper role as a psychologist, but Dr. Jessen’s use of waterboarding is especially significant. The United States military has categorically rejected this practice since at least World War II, when it prosecuted Japanese soldiers for using the method during the war, sentencing those convicted to fifteen years of hard labor. The United States even prosecuted American soldiers during the Vietnam War for waterboarding captives suspected of being affiliated with the Viet Cong. [71]
Moreover, far from using his training as a psychologist to mitigate harm to detainees, Dr. Jessen in fact devised ways to increase their pain. The CIA Report concludes that the waterboard technique employed by Dr. Jessen at the CIA black site was even more dangerous than the technique as used in SERE training and as described in the Department of Justice opinion authorizing its use:
At the SERE school and in the [Justice Department’s] opinion, the subject’s airflow is disrupted by the firm application of a damp cloth over the air passages; the interrogator applies a small amount of water to the cloth in a controlled manner. By contrast, the Agency interrogator . . . continuously applied large volumes of water to a cloth that covered the detainee’s mouth and nose.[72]
As the CIA added new captives to its secret prisons, the techniques first tested on abu Zubaydah were used on other detainees.[73] According to one investigative report, “[i]nterrogators who were sent for classified training inevitably wound up in a Mitchell-Jessen ‘shop,’ and some balked at their methods. . . . [S]ome recruits allegedly received on-the-job training during brutal interrogations that effectively unfolded as live demonstrations.”[74]
As a Department of Defense employee, and later as a CIA contractor, Dr. Jessen aggressively promoted his purported expertise in detainee interrogation. He devised abusive interrogation practices—warped from SERE techniques—and instructed interrogators on the use of these methods. Without evidence, he provided false assurances about the safety of these techniques and the reliability of the confessions that they would induce. Exploiting a moment of national crisis, Dr. Jessen sold his radical, untested, and dangerous interrogation program to the CIA in return for a lucrative government contract to personally supervise the torture of captives.
3. The torture of abu Zubaydah.
Abu Zubaydah, a Palestinian national, was the first detainee captured after 9/11 who was believed to be a high-ranking member of Al Qaeda.[75] Abu Zubaydah was also the first person to be subjected to the new regime of abusive interrogation that Dr. Jessen helped design and implement. The CIA Inspector General Report states that abu Zubaydah’s capture “accelerated the CIA’s development of an interrogation program.”[76] According to former CIA Director George Tenet, once abu Zubaydah was in custody, the CIA “got into holding and interrogating high-value detainees . . . in a serious way.”[77] The CIA’s lack of experience in interrogation may have made the agency susceptible to Dr. Jessen’s claims about the efficacy of his methods.[78] Whatever the explanation, abu Zubaydah’s interrogation was used as an opportunity to test a set of experimental techniques, devised by Dr. Jessen, that the United States had never before approved for use on its captives. Dr. Jessen designed these abusive techniques specifically for use on abu Zubaydah and then personally directed their use.
On March 28, 2002, abu Zubaydah was captured at a home in Pakistan by combined Pakistani and CIA forces.[79] He was subsequently detained in secret CIA black sites located around the world, reportedly including facilities in Thailand, Afghanistan, Poland, and elsewhere.[80] In September 2006, abu Zubaydah was transferred to the Guantanamo Bay prison, where he remains in U.S. custody. Despite the government’s early claims about abu Zubaydah’s alleged status as a high-ranking member of Al Qaeda, abu Zubaydah still has never been charged with a crime.[81] According to a recent Washington Post report, “within weeks of his capture, U.S. officials had gained evidence that made clear they had misjudged Abu Zubaida.” Although he had been described as “al-Qaeda’s chief of operations” and a “trusted associate” of Osama bin Laden, “[n]one of that was accurate, the new evidence showed.” Rather, “Abu Zubaida was not even an official member of al-Qaeda, according to a portrait of the man that emerges from court documents and interviews with current and former intelligence, law enforcement and military sources.”[82]
During the raid that led to his capture, abu Zubaydah suffered “severe wounds,”[83] from being shot in the groin, thigh, and stomach.[84] A medical team determined that he would die if not treated in a hospital.[85] Abu Zubaydah accordingly was taken to a hospital, where he spent several weeks being treated and where his initial questioning began.[86] He was then transferred to a secret CIA facility. Abu Zubaydah was initially interrogated using “non-aggressive, non-physical” techniques.[87] FBI agents questioned him using traditional methods based on the Army Field Manual. According to one of the FBI interrogators who conducted these sessions, abu Zubaydah was cooperative.[88]
Soon, however, a CIA Counterterrorism Team arrived at the black site and assumed control over the interrogation.[89] The CIA team included an outside contractor “who was instructing them on how they should conduct the interrogations.”[90] This contractor has been identified as Dr. Jessen’s former (and future) colleague Dr. Mitchell.[91] Deeming the FBI methods to be insufficient, the CIA interrogators said that they “needed to diminish [abu Zubaydah’s] capacity to resist.”[92] “Immediately, on the instructions of the contractor, harsh techniques were introduced, starting with nudity.”[93] As time progressed, the contractor moved “further along the force continuum, introducing loud noise and then temperature manipulation.”[94]
Abu Zubaydah was subsequently kept naked for between one and a half to two months and his clothes were provided or removed according to how cooperative his interrogators perceived him to be.[95] Abu Zubaydah was also systematically deprived of sleep for a period of two to three weeks by the combined use of painful shackling, loud music, cold temperatures, and being doused with water. The cell was kept very cold by the use of air-conditioning and very loud “shouting” music was constantly playing on an approximately fifteen minute repeat loop twenty-four hours a day. Sometimes the music stopped and was replaced by a loud hissing or crackling noise.[96] As part of the regime of total control designed to strip detainees of their autonomy, abu Zubaydah was denied solid foods. He was fed only high-calorie liquids which provided him with minimal sustenance and left him constantly hungry.[97]
According to one of the FBI agents who observed with dismay the CIA’s harsh methods, “the contractor insisted on stepping up the notches of his experiment,” and devised the idea of placing abu Zubaydah in confinement boxes.[98] One box was too narrow to allow him to sit down; the other was so short that instead of standing he reportedly “had to double up his limbs in a fetal position.”[99] The coffin-like boxes were black, both inside and out, and covered with towels, possibly in an effort to constrict the flow of air inside.[100] At the time that the CIA was inflicting escalating levels of abuse on abu Zubaydah, he was still recovering from his gunshot wounds.[101] In fact, the CIA interrogators were so worried that abu Zubaydah might die that they videotaped his interrogations in an attempt to protect themselves from potential liability.[102] The CIA later destroyed these videotapes.[103]
As part of his mistreatment, abu Zubaydah was slammed directly into hard concrete walls (only later covered by a plywood sheet), with a thick collar placed around his neck that was presumably intended to protect him from additional life-threatening injury.[104] He was also forced to stand with his wrists shackled to a bar or hook in the ceiling above his head, and with his feet shackled to an eye bolt in the floor, for more than 40 hours.[105] This is commonly reported to be one of the most painful physical torture techniques.[106] As described by the Red Cross, prisoners subjected to this method are made to stand
naked, held with the arms extended and chained above the head . . . for periods from two or three days continuously, and for up to two or three months intermittently, during which period toilet access was sometimes denied resulting in allegations from four detainees that they had to defecate and urinate over themselves.[107]
The infliction of this stress position contributed to the death of one detainee in the internment facility at Bagram Air Base.[108] For abu Zubaydah, this stress-position technique was often combined with “cold cell” technique, so that abu Zubaydah was left to stand naked and repeatedly doused with cold water in a cell kept near 50 degrees Fahrenheit.[109]
Dr. Jessen and his fellow “psychologist/interrogator”[110] worked to identify abu Zubaydah’s phobias. After discovering an especially vehement phobia that abu Zubaydah suffered from, the psychologists devised a scheme to terrorize abu Zubaydah with this fear: “You would like to place Zubaydah in a cramped confinement box with an insect. You have informed us that he appears to have a fear of insects. In particular, you would like to tell Zubaydah that you intend to place a stinging insect into the box with him.”[111] As many reporters have noted, this technique is reminiscent of an incident in George Orwell’s novel Nineteen Eighty-Four, in which the fictional government terrorizes the protagonist by exploiting his intense fear of rats.[112]
Finally, abu Zubaydah was waterboarded at least 83 times in August 2002, usually twice per session and sometimes three times in a single session.[113] The Red Cross report contains abu Zubaydah’s own description of his waterboarding. His account describes how waterboarding was used, to devastating effect, in combination with the other abusive techniques described above:
During these torture sessions many guards were present, plus two interrogators who did the actual beating, still asking questions, while the main interrogator left to return after the beating was over. After the beating I was then placed in the small box. They placed a cloth or cover over the box to cut out all light and restrict my air supply. As it was not high enough even to sit upright, I had to crouch down. It was very difficult because of my wounds. The stress on my legs held in this position meant my wounds both in the leg and stomach became very painful. I think this occurred about 3 months after my last operation. It was always cold in the room, but when the cover was placed over the box it made it hot and sweaty inside. The wound on my leg began to open and started to bleed. I don’t know how long I remained in the small box, I think I may have slept or maybe fainted.
I was then dragged from the small box, unable to walk properly and put on what looked like a hospital bed, and strapped down very tightly with belts. A black cloth was then placed over my face and the interrogators used a mineral water bottle to pour water on the cloth so that I could not breathe. After a few minutes the cloth was removed and the bed was rotated into an upright position. The pressure of the straps on my wounds was very painful. I vomited. The bed was then again lowered to a horizontal position and the same torture carried out again with the black cloth over my face and water poured on from a bottle. On this occasion my head was in a more backward, downwards position and the water was poured on for a longer time. I struggled against the straps, trying to breathe, but it was hopeless. I thought I was going to die. . . .
I was then placed again in the tall box. While I was inside the box loud music was played again and somebody kept banging repeatedly on the box from the outside. I tried to sit down on the floor, but because of the small space the bucket with urine tipped over and spilt over me. I remained in the box for several hours, maybe overnight. I was then taken out and again a towel was wrapped around my neck and I was smashed into the wall with the plywood covering and repeatedly slapped in the face by the same two interrogators as before.
…
This went on for approximately one week. During this time the whole procedure was repeated five times. On each occasion, apart from one, I was suffocated once or twice and was put in the vertical position on the bed in between. On one occasion the suffocation was repeated three times. I vomited each time I was put in the vertical position between the suffocation.
During that week I was not given any solid food . . . My head and beard were shaved everyday.
I collapsed and lost consciousness on several occasions. Eventually the torture was stopped by the intervention of the doctor.
I was told during this period that I was one of the first to receive these interrogation techniques, so no rules applied. It felt like they were experimenting and trying out techniques to be used later on other people.[114]
Not surprisingly, the effects of the interrogation program are deep and long-lasting. Abu Zubaydah reports, “Since then I still lose control of my urine when under stress.”[115]
The Red Cross has concluded that many of the techniques inflicted upon abu Zubaydah – whether used singly or in combination – constitute torture. Others constitute cruel, inhuman, or degrading treatment.[116] The Red Cross has also stated: “The alleged participation of health personnel in the interrogation process and, either directly or indirectly, in the infliction of ill-treatment constituted a gross breach of medical ethics and, in some cases, amounted to participation in torture and/or cruel, inhuman or degrading treatment.”[117]
Regardless of what legal categories these techniques fall within, one conclusion is clear: a psychologist who helps inflict such cruel and shocking abuse on a defenseless human being has violated the most basic standards of conduct of the profession. Dr. Jessen not only enabled and participated in abu Zubaydah’s torment, he also personally designed the abusive and degrading techniques to which abu Zubaydah was subjected. As explained in Section IV, Dr. Jessen’s actions violate the ethical guidelines of the APA and Idaho’s regulations governing the practice of psychology.
B. Dr. Jessen’s Misrepresentation of His Professional Competence Injured Detainees and Endangered U.S. Interrogators.
As described in Section III.A, Dr. Jessen tenaciously promoted the unproven idea that the brutal techniques used in SERE mock interrogations could be reverse-engineered to elicit accurate intelligence from terrorism suspects. Dr. Jessen marketed his supposed expertise in these methods to military and CIA leadership, sought opportunities in which he could act as an instructor, and offered advice to interrogators on how to use these methods. Ultimately, as a CIA independent contractor, Dr. Jessen personally implemented his theories by directing and supervising interrogations of CIA detainees.
1. Dr. Jessen acted outside of the bounds of his professional competence.
Official governmental reports have concluded that Dr. Jessen far exceeded the bounds of his professional competence when he asserted that he could provide expertise in conducting interrogations. The Senate Armed Services Committee explained:
JPRA’s expertise lies in training U.S. military personnel who are at risk for capture, how to respond and resist interrogations (a defensive mission), not in how to conduct interrogations (an offensive mission). SERE instructors play the part of interrogators, but they are not typically trained interrogators. SERE instructors are not selected for their roles based on language skills, intelligence training, or expertise in eliciting information.[118]
The Inspector General of the Department of Defense has similarly explained: “The SERE expertise lies in training personnel how to respond and resist interrogations – not in how to conduct interrogations. Therefore, the Joint Personnel Recovery Agency and SERE mission is defensive in nature, while the operational interrogation mission is sometimes referred to as offensive.”[119] The Armed Services Committee further characterized “Dr. Jessen’s initiative” in the development of his plan as inappropriate and misguided: “As experienced intelligence officers were making recommendations to improve intelligence collection, JPRA officials with no training or experience in intelligence collection were working on their own exploitation plan.”[120] The Committee concluded that JPRA’s “efforts in support of ‘offensive’ interrogation operations went beyond the agency’s knowledge and expertise” and that “JPRA’s support to U.S. government interrogation efforts contributed to detainee abuse.”[121] The CIA’s Office of Medical Services (“OMS”), which was neither consulted nor involved during the CIA’s initial analysis of the risks and benefits of coercive interrogation techniques, has since concluded that “the expertise of the SERE psychologist/interrogators on the waterboard was probably misrepresented at the time.” The OMS has determined that “there was no a priori reason to believe that applying the waterboard with the frequency and intensity with which it was used by the psychologist/interrogators was either efficacious or medically safe.”[122]
Numerous professional interrogators and other intelligence officials have questioned Dr. Jessen’s qualifications to design interrogation tactics, train interrogators, or supervise and conduct interrogations. Many of these intelligence professionals have condemned Dr. Jessen’s rash foray into an area in which he lacked any expertise. As one investigative report explained,
In truth, many did not consider Mitchell and Jessen to be scientists. They possessed no data about the impact of sere training on the human psyche, say former associates. Nor were they ‘operational psychologists,’ like the profilers who work for law enforcement. . . . But they wanted to be, according to several former colleagues.[123]
One former colleague of Dr. Jessen, Air Force Colonel Steve Kleinman, a career military interrogator, has stated that when Dr. Jessen and Dr. Mitchell became involved in interrogations for the CIA, “that was their first step into the world of intelligence . . . . Everything else was role-play.”[124] Col. Kleinman and two other former colleagues further asserted that “neither Mitchell nor Jessen had any experience with al Qaeda, Islamic extremists or battlefield interrogations.”[125] Col. Kleinman continued, “What they failed to understand was they were stepping out of their area of expertise.” Unfortunately, “[t]here was nobody, apparently, at the decision-making level that had enough expertise and experience in the area of interrogation to quickly see the disconnect between the SERE model, a resistance model, and an actual interrogation for intelligence purposes.”[126]
Dr. Jessen’s lack of interrogation expertise was affirmed by one of the two Federal Bureau of Investigation (“FBI”) agents who first questioned abu Zubaydah at the CIA facility where he was held. This agent testified before Congress that “the CIA specializes in collecting, analyzing, and interpreting intelligence. The FBI, on the other hand, has a trained investigative branch. Until that point, we were complimenting each other’s expertise, until the imposition of the ‘enhanced methods.’ As a result people ended doing what they were not trained to do.”[127] The FBI agent faulted “outside contractors with no expertise in intelligence operations, investigations, terrorism, or al Qaeda. . . [and no] experience in the art of interview and interrogation.”[128] According to this agent, one contractor admitted these shortcomings to him at the time.[129]
2. Dr. Jessen offered false assurances of the usefulness of his recommended techniques.
Some officials expressed concern over Dr. Jessen’s techniques’ effectiveness. According to Michael Rolince, former section chief of the FBI’s International Terrorism Operations, the tactics designed by Dr. Jessen and others amounted to “voodoo science.”[130] Dr. Jessen had no grounds for his assertions that abusive and degrading interrogation practices could produce reliable information – and he had ample reason to believe that these techniques would, in fact, elicit false information.
Dr. R. Scott Shumate was the chief operational psychologist for the CIA’s Counterterrorism Center at the time of abu Zubaydah’s capture, and he was present during the early interrogation of abu Zubaydah by the CIA. Disgust with the abusive methods developed by reverse-engineering SERE tactics led Dr. Shumate to leave even before Dr. Jessen had used his most dangerous tactics.[131] Dr. Shumate later told associates that the CIA’s hiring of Dr. Jessen’s partner, Dr. Mitchell, was a mistake.[132]
The fact that Dr. Jessen had no experience conducting interrogations led to one of the most serious flaws in his coercive approach: there was no way of knowing whether abusive interrogation could produce accurate information. The origin of the techniques that were commonly practiced in SERE training should have made this flaw obvious.
Given that the techniques used in SERE mock interrogations were originally designed to induce prisoners to say whatever their captors wanted them to say, it is no surprise that these techniques failed to produce reliable evidence. The Armed Services Committee concluded: “The use of techniques similar to those used in SERE resistance training – such as stripping students of their clothing, placing them in stress positions, putting hoods over their heads, and treating them like animals – was . . . inconsistent with the goal of collecting accurate intelligence information.”[133] As Col. Kleinman stated to the press, “I think [Jessen and Mitchell] have caused more harm to American national security than they’ll ever understand.”[134]
Throughout this process, Dr. Jessen consistently offered assurances about the safety of his proposals, despite having no empirical basis for his claims that the abuse and torture he helped inflict would cause no long-term harm to detainees. The only evidence Dr. Jessen has ever provided in support of these assurances is that U.S. soldiers who are subjected to similar treatment during SERE training do not suffer lasting harm. Setting aside whether this claim is accurate,[135] Dr. Jessen ignored obvious differences between the impact of these techniques when used during role-playing exercises in a controlled environment and the impact of these techniques when inflicted upon captives in an actual interrogation.
As he promoted the use of brutal interrogation tactics, Dr. Jessen repeatedly asserted that his methods were safe, according to two high-ranking CIA officials.[136] In interviews with the Armed Services Committee, as disclosed in the Senate Report, Dr. Jessen professed his opinion “that, in some circumstances, physically coercive techniques are appropriate for use in detainee interrogations.”[137] Dr. Jessen claimed to believe that these techniques should be used only if they “do not cause long-term physical or psychological harm.”[138] The Committee Report continues:
Dr. Jessen acknowledged that empirically, it is not possible to know the effect of a technique used on a detainee in the long-term, unless you study the effects in the long-term. However, he said that his conclusion about the long-term effects of physically coercive techniques was based on forty years of their use at SERE school.[139]
In truth, Dr. Jessen lacked any basis for his advice to the CIA, and through them to the Justice Department, that exposure to abusive interrogation during SERE training caused no long-term psychological damage.[140] No surveys are conducted of students who have completed SERE training.[141] More importantly, such evidence (were it to exist) would still not address the crucial differences between SERE training and actual interrogations. The Armed Services Committee Report highlights some of the major differences between the training and interrogation contexts and explains why the misapplication of SERE techniques to real interrogations “created a serious risk of physical and psychological harm to detainees.” SERE schools
employ strict controls to reduce the risk of physical and psychological harm to students during training [including] medical and psychological screening for students, interventions by trained psychologists during training, and code words to ensure that students can stop the application of a technique at anytime should the need arise. Those same controls are not present in real world interrogations.[142]
As a senior Army SERE psychologist explained in internal communications obtained by the Armed Services Committee: “[E]verything that is occurring [in SERE school] is very carefully monitored and paced; no one is acting on their own during training. Even with all these safeguards, injuries and accidents do happen. The risk with real detainees is increased exponentially.”[143] One CIA contract psychologist admitted to being aware that the use of SERE-inspired tactics in training exercises vastly differed from their use in real interrogations: “One of the psychologist/interrogators acknowledged that the Agency’s use of the technique differed from that used in SERE training and explained that the Agency’s technique is different because it is ‘for real’ and is more poignant and convincing.”[144]
If Dr. Jessen had sought to discover what effects his methods might have on the detainees they were used upon, he would have found an answer that belied his assurances. Medical professionals have studied the short- and long-term effects of various forms of torture and have found that torture victims experience long-lasting psychological consequences in addition to physical harm. The consequences of torture include not just the momentary panic one experiences while pain and terror are being inflicted, but also psychological effects that last well beyond the torture itself. A recent study in the Archives of General Psychiatry explains that “abusive techniques employed during captivity which emphasized psychological torture over physical injury, such as psychological manipulation, forms of deprivation, humiliation and stress positions, cause as much mental pain and traumatic stress as does torture designed to inflict physical injury.”[145] Referring to this study, a report by Physicians for Human Rights and Human Rights First concluded that “the significance of the harm caused by non-physical, psychological abuse is virtually identical to the significance of the harm caused by physical abuse.”[146] The report also found the distinction between physical and psychological abuse to be spurious:
Although discussion of torture and other cruel, inhuman and degrading treatment of detainees can be divided into psychological and physical techniques, ultimately all techniques that violate human dignity carry a high risk of psychological damage. Further, the distinction between harsh physical and psychological techniques is artificial as most torture techniques involve both components.[147]
Severe depression is one of the most common disorders experienced by the victims of torture. Other effects include post-traumatic stress disorder, intense anxiety disorders, sexual dysfunction, memory and concentration impairment, sleep disturbance, smoking and alcohol abuse, and self-harming behaviors. Victims also report somatization disorders, with symptoms of dizziness, nausea, headache, back pain, numbness, difficulty breathing, rashes, and chest pressure.[148]
In a joint 2006 letter, leading medical and psychological experts, including contemporary and past presidents of the APA, condemned the notion that SERE techniques would have benign long-term effects on detainees:
There must be no mistake about the brutality of the ‘enhanced interrogation methods’ reportedly used by the CIA. Prolonged sleep deprivation, induced hypothermia, stress positions, shaking, sensory deprivation and overload, and water-boarding . . . among other reported techniques, can have a devastating impact on the victim’s physical and mental health.[149]
Dr. Jessen also neglected to consider that U.S. interrogators who adopted his methods or who carried out interrogations under his supervision would themselves suffer psychological trauma as a result of their participation in brutal torture or abuse of their fellow human beings. One expert has argued that torture causes trauma not only to individual torturers, but also to the professional operations of which they are a part:
[T]orture breaks down professionalism. Professionals become less disciplined, more brutal, and less skilled while their organizations become more fragmented and corrupt. Usually, organizations and interrogators are worse off than before they started torturing despite their best intentions. . . . In torture, the rhetoric of professionalism is common, but the behavioral and organizational indicators show a rapid decay in professionalism.[150]
Dr. Jessen did not adequately anticipate and prepare for the possibility that U.S. interrogators would themselves suffer long-term psychological trauma as a result of their participation in the torture or abuse of others. One CIA officer has recounted that another colleague who interrogated and tortured a “high value” CIA detainee:
[He] has horrible nightmares. When you cross over that line of darkness, it’s hard to come back. You lose your soul. You can do your best to justify it, but it’s well outside the norm. You can’t go to a dark place without it changing you . . . You are inflicting something really evil and horrible on somebody.[151]
Dr. Jessen’s efforts to advance his career by positioning himself as an expert on interrogation were dangerous and unethical. These reckless, self-promoting actions would merit investigation and censure even if no one had ever listened to Dr. Jessen’s advice. However, Dr. Jessen was all too successful in persuading CIA officials to heed his advice. By the summer of 2002, this success allowed Dr. Jessen to attain exactly the type of position he was clearly seeking. As a contract psychologist with the CIA, Dr. Jessen became a well-compensated “expert” with the authority to personally direct the interrogations of terrorism suspects. The devastating effects of Dr. Jessen’s interrogation methods can be seen in the case of the first detainee to whom these methods were applied. In retrospect, it is not surprising that his actions endangered U.S. personnel and seriously harmed the long-term health of detainees: Dr. Jessen was operating far outside the limits of his proficiency, promoting his alleged expertise in a field where he lacked any training, education, or experience.
IV. Dr. Jessen’s Violation of the APA’s Ethical Principles of Psychologists and Code of Conduct.
A. Dr. Jessen violated Idaho law by violating the APA’s Code of Ethics, because the Code has been incorporated into Idaho law.
1. The APA’s Code of Ethics is incorporated into the Idaho Administrative Code by statute.
Dr. Jessen, as a psychologist duly licensed by the State of Idaho, is strictly bound by the APA’s 2002 Code of Ethics. The Idaho Board of Psychologist Examiners incorporates the APA Code of Ethics into state law by statute in IDAPA 24, Title 12, Chapter 01, rules 4 and 350.[152] The ethical obligations of the APA Code carry the force of law with regard to the Board of Psychologist Examiners’ disciplinary power.
2. APA statements and resolutions established after the last publication of the Code of Ethics clearly indicate that the Code provides no defense for torture.
The APA has stated that the 2002 Code neither allows nor condones psychologists’ participation in torture or other cruel, inhuman or degrading treatment.[153] These statements and resolutions provide insight into the way the Code should be interpreted. The relevant statements show that the Code – and therefore Idaho law – should be construed to hold Dr. Jessen accountable for his role in the torture of detainees. Since the APA itself is the most persuasive interpretive authority on the Code’s meaning, its statements should be given substantial deference. Since Dr. Jessen’s actions are not permissible under the Code, they constitute violations of Idaho law.
B. Dr. Jessen violated numerous elements of the APA Code and Idaho law.
1. In designing, conducting training for, and supervising the infliction of mental harm on detainees, Dr. Jessen violated Section 3.04 of the APA Code, which deals with “Avoiding Harm.”
Dr. Jessen clearly failed to take steps to avoid harm or to minimize harm to the detainees, as provided for in Section 3.04.[154] Rather, he actively sought to physically and psychologically “exploit” them in order to gather intelligence information, regardless of how reliable that information proved to be.[155] The short and long-term effects of torture on abu Zubaydah and other detainees are devastating and have been well documented. (These effects are discussed above in Section III.B).
2. Demonstrated most glaringly by his drafting of an “Exploitation Plan,” Dr. Jessen violated Section 3.08 of the APA Code by engaging in exploitative relationships with detainees.
Dr. Jessen violated the directive of Section 3.08 of the Code that psychologists not exploit those individuals over whom they have “supervisory, evaluative, or other authority.”[156] Dr. Jessen treated these individuals as a means to an end rather than respecting the basic human dignity of abu Zubaydah and other detainees as an end in itself. His “Draft Exploitation Plan,”[157] which recommended that the government “[h]old, manage and exploit detainees” at an “undisclosed facility” hidden from the press, the Red Cross, and foreign observers,[158] is an affront to the ethical precept embodied in Section 3.08. Furthermore, Dr. Jessen produced slides for a training session that explicitly detailed steps to effect the “degradation” of detainees,[159] and knowingly and intentionally advised the CIA to carry out interrogation techniques aimed directly at what he perceived to be abu Zubaydah’s psychological vulnerabilities, for example a suspected fear of insects.[160]
3. Dr. Jessen violated Section 3.01 of the APA Code by unfairly discriminating against detainees in designing interrogation tactics that targeted their religious and cultural beliefs.
The techniques Dr. Jessen crafted that intentionally degraded detainees’ religion and culture – forced shaving and sexual humiliation – amounted to unfair and unlawful religious discrimination, a violation of Section 3.01 of the APA’s Code of Ethics.[161] Dr. Jessen’s memorandum on prisoner handling at Guantanamo Bay recommended that “GTMO tailor punishment to maximize cultural undesirability and tailor rewards to maximize desirability.”[162] Abu Zubaydah and other detainees reported having their hair and beards forcibly shaved in the course of their detention,[163] despite the fact that keeping one’s beard is an expression of devotion and piety in Islam.[164] It is documented that, at least with respect to one other detainee, forced shaving was used in part as a means “to assert control over the detainee.”[165] Forcibly stripping detainees of their clothing constitutes sexual humiliation, exacerbated by the presence of female interrogators.[166] These deliberate cultural violations amount to the kind of unfair discrimination contemplated in Section 3.01.
4. Dr. Jessen’s aggressive promotion and misrepresentation of his professional expertise violated the APA Code’s standards on “Boundaries of Competence” (2.01) and the “Avoidance of False or Deceptive Statements” (5.01).
Dr. Jessen actively marketed his own expertise and the relevance of the SERE program to the CIA and other government agencies, often beyond the bounds of his professional competence. In doing so, he violated Section 2.01 of the APA Code.[167] According to a 2007 investigative report, Dr. Jessen and Dr. Mitchell deceptively represented themselves as experts on interrogation techniques in the course of offering their consulting services to the U.S. government. Even their peers were skeptical of the assertions that the SERE psychologists were making about their expertise. One quotes Dr. Mitchell as saying, “We know how people are responding to stress;” though he promised to show supporting data, “it would never arrive.”[168]
The Board of Psychologist Examiners should further investigate the nature of Dr. Jessen’s self-representation and the potential misconduct therein. To date there is little public information on the nature Dr. Jessen’s evolving relationship with the CIA as he transitioned from Department of Defense employee to private contractor.[169] If Dr. Jessen misrepresented research and expertise on interrogation techniques in the course of making a name for himself and, after 2005, in soliciting business for the consulting firm Mitchell Jessen & Associates, in addition to the violation of Section 2.01, then his actions amounted to violations of Section 5.01(a).[170]
5. By playing conflicting roles in designing interrogations, training interrogators, and even supervising interrogations, Dr. Jessen violated Section 3.06 of the APA Code.
Dr. Jessen played several, often conflicting roles in his interrogation work, which violated Section 3.06 of the APA Code.[171] First, he was entrusted to both design techniques to gather information from detainees, and he was charged with ensuring that those techniques did not amount to torture by the government’s standards. At the same time, he also aggressively promoted his own expert services at the expense of detainees. His combined roles as protector and exploiter of the detainees may constitute a violation of Standard 3.06 because these multiple roles and interests call into question his professional objectivity under subsection (1) of the standard, and created an obvious risk of “harm or exploitation” to the detainees, and abu Zubaydah specifically, under subsection (2).
C. Section 1.02 of the APA Code of Ethics provides no defense for Dr. Jessen’s violations.
The fact that Dr. Jessen violated the Code while in government service does not provide a defense. Section 1.02 of the APA Code[172] states that where psychologists’ ethical responsibilities conflict with the law, they are permitted to adhere to the law even if in doing so they violate the Code. This provides no defense for Dr. Jessen’s violations, because the APA’s ethical standards were never in conflict with any other legal obligation. No law compelled Dr. Jessen to design interrogation tactics that violated so many of the standards enumerated elsewhere in the Code. As detailed above, Dr. Jessen was not under orders to engage in interrogations, but instead purposely marketed himself as an interrogation expert, despite possessing no meaningful expertise in active interrogations. Moreover, once engaged in the design of interrogation programs, Dr. Jessen could have chosen to recommend only those techniques that clearly comported with the APA Code. But, by his own volition and not due to any legal obligation, Dr. Jessen crafted “detainee exploitation” procedures that plainly violated his professional obligations.[173] Thus, there is nothing to prevent this Board’s full enforcement of the APA ethical standards and Idaho law.
That conclusion is plain in light of the APA’s recent statement that explicitly stated that “[t]here is no defense to torture under the Ethical Principles of Psychologists and Code of Conduct (2002)”[174] and the resolutions the APA has issued condemning psychologists’ participation in torture.[175] Strikingly, one resolution enumerates specific interrogation techniques that closely parallel the techniques created and implemented by Dr. Jessen and that the organization considers to be torture in light of the UN Convention Against Torture, the Geneva Conventions, and other international and medical conventions.[176]
In sum, the APA Ethics Code is state law in Idaho with regard to the professional conduct of licensed psychologists such as Dr. Jessen. Dr. Jessen’s involvement in crafting abusive interrogation techniques amounts to violations of numerous elements of the Code, and the Idaho Board of Psychologist Examiners should investigate and act accordingly.
I urge the Board to initiate immediately an investigation into the responsibility of Idaho licensee Dr. Jessen for the acts described above. These acts constitute clear violations of professional ethics. Moreover, the abuse and other harms that resulted from Dr. Jessen’s direct supervision and professional recommendations demonstrate the he is a danger to the general public and that he is unfit to practice psychology. It is imperative that the body responsible for regulating Dr. Jessen’s license determine whether such allegations have indeed transpired and, if so, take disciplinary action to stop the erosion that his continued licensure causes to this profession’s integrity.
Respectfully Submitted,
[1] Dr. Jessen goes by the name Bruce Jessen. He currently resides in Spokane, Washington, and works for Mitchell Jessen & Associates, a consulting company he co-founded in 2005.
[2] Scott Shane, Interrogation Inc.: 2 U.S. Architects of Harsh Tactics in 9/11’s Wake, N.Y. Times, Aug. 11, 2009, available at http://www.nytimes.com/2009/08/12/us/12psychs.html (hereinafter “Shane, Interrogation Inc.”).
[3] Mission Statement, Idaho Board of Psychologist Examiners. https://secure.ibol.idaho.gov/IBOL/BoardPage.aspx?Bureau=PSY.
[4] Idaho Code § 54-2305(3) (authorizing the Board to revoke and suspend psychologist licenses); Idaho Code § 54-2305(4) (authorizing the Board “[t]o conduct hearings upon complaints concerning violations of the provisions of, and the rules adopted pursuant to, this chapter and cause the prosecution and enjoinder of all such violations”); Idaho Code § 54-2309 (providing that a license previously issued may be revoked, suspended, restricted, or otherwise disciplined if the Board finds that any of several enumerated conditions exist).
[5] Press Release, American Psychological Association, “Saying It Again: Psychologists May Never Participate in Torture” (Apr. 22, 2009), available at http://www.apa.org/releases/editorial-bray.html (“Mitchell and Jessen are not members of the APA, and therefore the association has no jurisdiction to investigate their activities.”).
[6] See “Counterterrorism Detention and Interrogation Activities,” Special Review, Central Intelligence Agency Inspector General, May 7, 2004, at 35 (hereinafter “CIA Inspector General Report”).
[7] Idaho Board of Psychologist Examiners, Licensure Application Process, available at https://secure.ibol.idaho.gov/IBOL/StreamHTMLPage.aspx?Bureau=PSY&HTMLUrl=\
Procedures\PSY_LICENSURE.htm (“All applicants must certify under oath that they have reviewed and will abide by the laws, rules, and ethics governing the practice of psychology.”).
[8] See, e.g., Dutchess Business Services, Inc. v. Nevada State Bd. of Pharmacy, 191 P.3d 1159 (Nev. 2008) (holding that the Nevada Board of Pharmacy possessed jurisdiction to discipline two defendants for violations that occurred outside of Nevada); In re Kim, 958 A.2d 485 (N.J. Super. Ct. 2008) (upholding the New Jersey State Board of Medical Examiners’ power to reprimand a physician for conduct occurring in another state, pursuant to a provision authorizing discipline for “professional or occupational misconduct as may be determined by the board”); Colorado State Bd. of Medical Examiners v. Sullivan, 976 P.2d 885 (Colo. Ct. App. 1999) (holding that under the Colorado Medical Practice Act the state disciplinary board possessed jurisdiction to revoke a physician’s license for unprofessional conduct occurring during his employment at a military base that was legally considered outside of the state).
[9] See Dutchess Business, 191 P.3d at 1165 (“These statutes are plain and unambiguous. Nothing in NRS 639.210(4) limits the Board’s review of unprofessional conduct to acts occurring solely in the State of Nevada.”); Sullivan, 976 P.2d at 887 (explaining that the statutory definition of “unprofessional conduct” is “not limited to acts that occur only inside the state of Colorado”).
[10] For example, Idaho licensees may be disciplined if they are “[f]ound guilty by a court of competent jurisdiction of a felony.” Idaho Code § 54-2309(1). An Idaho-licensed psychologist convicted of a felony in another state would clearly fall within this proscription, and the Code therefore expressly contemplates that activity occurring outside the state is subject to investigation and reprimand.
[11] See Sullivan, 976 P.2d at 887 (noting that the Colorado statute defining unprofessional conduct “provides . . . that unprofessional conduct includes receiving a conviction for violation of any federal or state law regulating the possession of a controlled substance . . . . Hence, the statute expressly includes acts occurring outside this state within its definition of unprofessional conduct”). Likewise, a psychologist whom the Board determines has behaved unethically, see Idaho Code § 54-2309(5), or has otherwise violated the rules of professional conduct, see Idaho Code § 54-2309(4), may be disciplined regardless of where the behavior occurred.
[12] Idaho Code § 54-2301. See Dutchess Business, 191 P.3d at 1165 (“Licensees who commit acts of unprofessional conduct, whether in this state or elsewhere, violate the public interest of this state in its licensed pharmaceutical wholesalers. Thus, the Board has jurisdiction to discipline and impose penalties on [the defendants].”); Sullivan, 976 P.2d at 888 (recognizing that construing the Colorado Medical Practice Act to authorize investigation of out-of-state conduct “also furthers the express purpose of the MPA to protect the citizenry against unauthorized, unqualified, and improper practice of the healing arts in this state”).
[13] Idaho Code § 54-2301.
[14] See Kim, 958 A.2d at 387 (permitting discipline for out-of-state conduct, explaining that “[i]n keeping with its public safety protection function, the Board issued a reprimand to advise the public of appellant’s prior ethical lapse”).
[15] Investigating behavior that occurred outside the state is not an assertion of extra-territorial jurisdiction. As explained in a court decision from another state: “When, as here, the Board disciplines a physician licensed in this state for acts that occur outside the state, the MPA operates solely upon that physician’s future activities in this state and his or her license to practice medicine in Colorado. It does not prevent, by operation of Colorado law, practicing medicine in another jurisdiction. It merely restricts the use of the Colorado license within state boundaries. Sullivan, 976 P.2d at 888. Nor would this investigation intrude upon the prerogatives of the federal government, merely because Dr. Jessen’s conduct occurred while he was a federal employee and contractor. The State of Idaho possesses ultimate authority over whom it chooses to license to practice psychology and other professions. See Sullivan, 976 P.2d at 888 (“[C]ontrary to respondent’s contention, the Board does not regulate or legislate as to medical practice within Fort Carson by disciplining respondent for acts occurring there. Rather, as analyzed above, its order operates solely upon respondent’s license to practice medicine in Colorado.”).
[16] Shane, Interrogation Inc. Following the Korean War, the Air Force introduced SERE training in order to expose pilots and other personnel to the abuse, and the pressure to give up information, that they would potentially suffer were they to fall into the hands of an enemy that does not follow the Geneva Conventions. Since the Vietnam War, the program has expanded to include every branch of the military. Committee Report. Inquiry into the Treatment of Detainees in U.S. Custody. Report of the Committee on Armed Services, United States Senate. 110th Congress, 2nd Session. November 20, 2008, at xiii, 4 (hereinafter “Senate Armed Services Committee Report”); Katherine Eban, Rorschach and Awe, Vanity Fair, July 17, 2007, available at http://www.vanityfair.com/politics/features/2007/07/torture200707 (hereinafter “Eban, Rorschach and Awe”); Jane Mayer, The Experiment, New Yorker, July 11, 2005, available at
http://www.newyorker.com/archive/2005/07/11/050711fa_fact4 (hereinafter “Mayer, The Experiment”).
[17] Office of the Inspector General of the Department of Defense, Review of DoD-Directed Investigations of Detainee Abuse, August 26, 2006, at 23.
[18] Committee Report. Inquiry into the Treatment of Detainees in U.S. Custody. Report of the Committee on Armed Services, United States Senate. 110th Congress, 2nd Session. November 20, 2008, at xiii (hereinafter “Senate Armed Services Committee Report”).
[19] Id.
[20] Id. at 4.
[21] Id. at xiii.
[22] Shane, Interrogation, Inc.
[23] Matthew Cole, Psychologists Told CIA Waterboarding Was Safe Despite Red Flags; CIA Followed Interrogation Program of Bruce Jessen and Jim Mitchell, ABC News, May 1, 2009, available at http://abcnews.go.com/Blotter/story?id=7474412&page=1 (hereinafter “Cole, Psychologists Told CIA Waterboarding Was Safe”).
[24] Id.
[25] CIA Inspector General Report 13; Shane, Interrogation Inc.
[26] Committee staff interview of Bruce Jessen (July 11, 2007); E-mail from Col John R. (Randy) Moulton to MAJ l Jack Holbein, BGen Thomas Moore, CAPT Darryl Fengya, and [redacted] … (February 14, 2002) as quoted in Senate Armed Services Committee Report at 6-7; CIA Inspector General Report 13.
[27] Shane, Interrogation Inc.
[28] Dr. Jessen sent a copy of the paper he wrote with Dr. Mitchell to JPRA Commander Colonel John “Randy” Moulton, and Dr. Jessen requested that Col. Moulton circulate the paper to his chain of command at JFCOM and the Joint Staff. E-mail from Bruce Jessen to Col Randy Moulton (February 12, 2002), quoted in Senate Armed Services Committee Report at 7.
[29] E-mail from Col Randy Moulton to MAl Jack Holbein, BGen Thomas Moore, CAPT Darryl Fengya, and [redacted] (February 14, 2002), quoted in Senate Armed Services Committee Report at 7.
[30] Dr. Jessen taught this “crash course” alongside and JPRA instructor Joseph Witsch. E-mail from Jim Perna to Christopher Wirts, Bruce Jessen, and Joseph Witsch (February 20, 2002), as quoted in Senate Armed Services Committee Report at 8. SOUTHCOM, the United States Southern Command, is based in Miami, Florida. It is responsible for US military operations in Central and South America and the Caribbean. “About Us,” SOUTHCOM web site, available at http://www.southcom.mil/AppsSC/pages/about.php.
[31] E-mail from Bruce Jessen to Col Randy Moulton (March 12, 2002), as quoted in Senate Armed Services Committee Report at 8.
[32] See ***, below [cite to the passage or the footnote where we discuss how the Senate Report indirectly reveals that the agency Jessen provided training to in the first half of 2002 was the CIA.]
[33] Committee staff interview of Bruce Jessen (November 13, 2007), as quoted in Senate Armed Services Committee Report at 8.
[34] E-mail from Bruce Jessen to Col Randy Moulton (March 12, 2002), as quoted in Senate Armed Services Committee Report at 10. There are several levels of SERE courses. Level C subjects students to “days of physical and psychological hardship inside a mock prisoner-of-war camp.” Mayer, The Experiment.
[35] Hearing to Receive Information Relating To The Treatment of Detainees, Senate Committee on Armed Services, 110th Cong. (September 4, 2007) (Testimony of Joseph Witsch) at 20 (hereinafter “Testimony of Joseph Witsch (September 4, 2007)”), as quoted in Senate Armed Services Committee Report at 8; Joint Personnel Recovery Agency, Al Qaeda Resistance Contingency Training: Contingency Training for [Redacted] Personnel Based on Recently Obtained Al Qaeda Documents (undated), as quoted in Senate Armed Services Committee Report at 8-9.
[36] Joint Personnel Recovery Agency, Exploitation (undated); Physical Pressures Used In Resistance Training and Against American Prisoners and Detainees, as quoted in Senate Armed Services Committee Report at 9.
[37] Joint Personnel Recovery Agency, Exploitation (undated), as quoted in Senate Armed Services Committee Report at 9.
[38] Physical Pressures Used In Resistance Training and Against American Prisoners and Detainees, as quoted in Senate Armed Services Committee Report at 9.
[39] E-mail from Bruce Jessen to Col Randy Moulton et al. (March 18, 2002) as quoted in Senate Armed Services Committee Report at 11.
[40] The colleague referred to is Christopher Wirts, Chief of JPRA’s Operational Support Office. Investigative journalist Jane Mayer characterized Wirts as follows: “a senior civilian at the JPRA . . . described by colleagues as an extensively tattooed former SERE instructor with a shaved head, who was particularly avid about exporting SERE techniques into the war on terror […].” Mayer, The Dark Side, 248. Wirts collaborated extensively with Dr. Jessen on applying SERE tactics to detainee interrogations and participated in a number of training sessions to that end. See, e.g., Senate Armed Services Committee Report 44, 92, 170.
[41] Memorandum for Col Cooney, Prisoner Handling Recommendations (February 28, 2002), attached to e-mail from Bruce Jessen to Joseph Witsch (March 13, 2002) quoted in Senate Armed Services Committee Report at 11 (brackets in original).
[42] Dr. Jessen circulated the plan to Col. Moulton as well as senior civilian leadership. E-mail from Bruce Jessen to Col. Randy Moulton, April 16, 2002, as quoted in Senate Armed Services Committee Report at 16.
[43] Senate Armed Services Committee Report at 14-15.
[44] Senate Armed Services Committee Report at 14.
[45] Senate Armed Services Committee Report at 20. The Senate Report redacts the name of the agency whose officer was trained by Dr. Jessen, calling it “another government agency,” but this agency has been revealed to be the CIA. As discussed next, Dr. Jessen and JPRA led a training session in early July for members of the same agency, id. at 21-23. Describing this training, the Senate Report inadvertently failed to redact the name “CIA” from page 23 and the name of the CIA’s chief counsel for its Counterterrorism Center from page 22. This mistake was noted in the press and indicates that the “another government agency” referred to in this section of the Report is the CIA. See Brian Beutler, Senate Report Accidentally Reveals SERE Instructors Trained CIA Officials in Torture, Talking Points Memo, April 24, 2009, http://tpmmuckraker.talkingpointsmemo.com/2009/04/senate_report_accidentally_reveals_sere_instructor.php. The Senate Report also notes: “Initially, the senior SERE psychologist could not recall if he provided the assistance to the [redacted] while he was still working at JPRA or if the assistance had occurred after he left JPRA. After he left JPRA in 2002, the senior SERE psychologist began working as a contractor to [redacted] but was restricted from discussing the nature of his work with the Committee.” Senate Armed Services Committee Report at 20 n.139 (emphasis in original).
[46] Senate Armed Services Committee Report at 20.
[47] See the previous footnote regarding the revelation that the “another government agency” referred to in the Senate Report is the CIA.
[48] Id.
[49] Senate Armed Services Committee Report at 20.
[50] Memorandum from Christopher Wirts, June 14, 2002, quoted in Senate Armed Services Committee Report at 20, n.144.
[51] Id., 21.
[52] At the time, waterboarding was still practiced at the Navy’s SERE school, but the Navy has since abandoned its use. Senate Armed Services Committee Report at 22.
[53] Senate Armed Services Committee Report at 22.
[54] Senate Armed Services Committee Report at 23. Once again, the Senate Report redacts the name of the agency and refers to it in a heading as an “other government agency.” However, the context indicates that this is the same agency, the CIA, that was referred to earlier.
[55] Senate Armed Services Committee Report at 23-24, citing committee staff interview of Bruce Jessen (July 11, 2007). The Senate Report states: “In July 2002 . . . Dr. Bruce Jessen . . . was detailed to [redacted] for several days. At the conclusion of this assignment, Dr. Jessen retired from the Department of Defense and began working as an independent contractor to [redacted].” Senate Armed Services Committee Report at 23-24. Investigative reports have identified this redacted organization as the CIA. See Shane, Interrogation Inc.; Cole, Psychologists Told CIA Waterboarding Was Safe; Eban, Rorschach and Awe; Mark Benjamin, The CIA’s Torture Teachers, Salon.com, June 21, 2007, available at http://www.salon.com/news/feature/2007/06/21/cia_sere/ (hereinafter “Benjamin, The CIA’s Torture Teachers”).
[56] Cole, Psychologists Told CIA Waterboarding Was Safe.
[57] Senate Armed Services Committee Report at 20. Although Dr. Jessen did not cooperate with the Senate inquiry regarding his CIA activities, id. at 20 n.139, he and Dr. Mitchell “advertised their CIA credentials as exhibitors” at a 2004 APA conference in Hawaii. Benjamin, The CIA’s Torture Teachers.
[58] Shane, Interrogation Inc.
[59] Cole, Psychologists Told CIA Waterboarding Was Safe.
[60] Eban, Rorschach and Awe.
[61] Cole, Psychologists Told CIA Waterboarding Was Safe; see also Eban, Rorschach and Awe (“According to people familiar with their compensation, they get paid more than $1,000 per day plus expenses, tax free, for their overseas work.”).
[62] Shane, Interrogation Inc.
[63] Jane Mayer, The Secret History: Can Leon Panetta Move the C.I.A. Forward Without Confronting its Past?, New Yorker, June 22, 2009, available at http://www.newyorker.com/reporting/2009/06/22/090622fa_fact_mayer. Shane, Interrogation Inc., reports a smaller number of employees in 2007.
[64] Sheri Fink, Has Consulting Firm For CIA Gone MIA?, ProPublica, May 27, 2009, available at http://www.propublica.org/article/has-cia-consulting-firm-gone-mia-527.
[65] Shane, Interrogation Inc.
[66] CIA Inspector General Report 3.
[67] Id., at 36.
[68] Id., at 35.
[69] Id., at 90.
[70] Id., at 36.
[71] Walter Pincus, Waterboarding Historically Controversial; In 1947, the U.S. Called It a War Crime: In 1968, It Reportedly Caused an Investigation, Wash. Post, Oct. 5, 2006, at A17, available at http://www.washingtonpost.com/wp-dyn/content/article/2006/10/04/AR2006100402005.html; Wilson R. Hung, Waterboarding is Illegal, available at http://lawreview.wustl.edu/slip-opinions/waterboarding-is-illegal/#_edn55.
[72] CIA Inspector General Report 37.
[73] The International Committee of the Red Cross found that the interrogation techniques used on abu Zubaydah were used in some combination on at least thirteen other High Value Detainees. International Committee of the Red Cross Report on the Treatment of Fourteen “High Value Detainees” in CIA Custody, February 2007 (hereinafter “Red Cross Report”).
[74] Eban, Rorschach and Awe.
[75] CIA Inspector General Report at 2-3.
[76] CIA Inspector General Report at 12; see also id. (stating that abu Zubaydah was believed to be “the most senior Al-Qa’ida member in U.S. custody at that time” and that his capture seemingly “presented the Agency with the opportunity to obtain actionable intelligence”).
[77] Senate Armed Services Committee Report at 16.
[78] This interpretation is suggested by the congressional testimony of Ali Soufan, an FBI interrogator who initially questioned abu Zubaydah: “[T]he CIA specializes in collecting, analyzing, and interpreting intelligence. The FBI, on the other hand, has a trained investigative branch. Until that point, we were complimenting each other’s expertise, until the imposition of the ‘enhanced methods.’ As a result people ended doing what they were not trained to do.” Statement of Ali Soufan, Committee on the Judiciary, United States Senate, May 13, 2009, available at http://judiciary.senate.gov/hearings/testimony.cfm?id=3842&wit_id=7906.
[79] Senate Armed Services Committee Report at 16.
[80] Red Cross Report at 5; Council of Europe, “Secret detentions and illegal transfers of detainees involving Council of Europe member states: second report” (June 11, 2007).
[81] Officials have stated that abu Zubaydah was not linked to the planning of the September 11, 2001 attacks. Dickey, Christopher. Securing the City. Simon & Schuster. 2009. (citing a profile of Abu Zubaydah created by the Director of National Intelligence). The camp with which abu Zubaydah was affiliated, Khalden, was initially painted as an Al Qaeda training facility, but this characterization has been contested by multiple detainees and the 9/11 Commission Report. 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks Upon the United States. July 22, 2006 http://www.gpoaccess.gov/911/pdf/fullreport.pdf; Khalid Sulaymanjaydh Al Hubayshi Unclassified Verbatim Combatant Status Review Tribunal Transcript, Pgs. 65-73 Department of Defense http://www.dod.mil/pubs/foi/detainees/csrt_arb/Set_1_0001-0097.pdf. Further allegations against abu Zubaydah made subsequent to his capture have not officially been rescinded, but some officials have come out to say that the government’s depiction of Abu Zubaydah was overly inflated and that “[t]o make him the mastermind of anything is ridiculous.” Peter Finn & Joby Warrick, Detainee’s Harsh Treatment Foiled No Plots, Washington Post, March 29, 2009. One former intelligence official said of efforts to follow up on the many purported leads from abu Zubaydah, “We spent millions of dollars chasing false alarms.” Id. To this date, abu Zubaydah has not been charged with any crimes, the government has removed his name completely from the charge sheets of multiple detainees with whom he was formerly implicated, and he has seen countless people who were supposedly close associates of his be released from Guantanamo Bay. Id.
[82] Finn & Warrick, “Detainee’s Harsh Treatment Foiled No Plots.”
[83] CIA Inspector General Report at 17; Bybee memorandum at 2 (“You have informed us that Zubaydah suffered a wound during his capture, which is being treated.”).
[84] Dan Eggen & Walter Pincus, FBI, CIA Debate Significance of Terror Suspect, Wash. Post (Dec. 18, 2007) (“Abu Zubaida was shot three times while attempting to leap from the roof of one apartment to another.”), available at http://www.washingtonpost.com/wp-dyn/content/article/2007/12/17/AR2007121702151.html; Brian Ross, CIA- Abu Zubaydah: Interview with John Kiriakou: Transcript, ABC News, Dec. 10, 2007, http://abcnews.go.com/images/Blotter/brianross_kiriakou_transcript1_blotter071210.pdf; J.J. Green, Former CIA Officer: Waterboarding is Wrong, but it Worked, WTOPnews.com, Mar. 20, 2008, available at http://www.wtop.com/?sid=1368866&nid=251; see also A Review of the FBI’s Involvement in and Observations of Detainee Interrogations in Guantanamo Bay, Afghanistan and Iraq, Department of Justice Inspector General’s Report, May 2008, at 67 (hereinafter “DoJ Inspector General Report”) (“There was a gunfight during the arrest operation and Zubaydah was severely wounded.”).
[85] Soufan Testimony.
[86] DoJ Inspector General Report at 68; Red Cross Report at 14, 28; Soufan Testimony.
[87] CIA Inspector General Report at 12.
[88] DoJ Inspector General Report at 68; Soufan testimony.
[89] DoJ Inspector General Report at 68.
[90] Testimony of Ali Soufan before the United States Senate Committee on the Judiciary (hereafter Soufan testimony), May 13, 2009, available at http://judiciary.senate.gov/hearings/testimony.cfm?id=3842&wit_id=7906
[91] Senate Armed Services Committee Report at 17; Eban, Rorschach and Awe; Mayer, The Experiment.
[92] DoJ Inspector General Report at 67.
[93] Soufan testimony.
[94] Id. Another FBI agent who also took part in abu Zubaydah’s early interrogation reported that during this period, “the CIA shaved Zubaydah’s head, sometimes deprived Zubaydah of clothing, and kept the temperature in his cell cold.” DoJ Inspector General Report at 68.
[95] Red Cross Report at 14.
[96] Red Cross Report at 15.
[97] Id., at 18.
[98] Soufan Testimony; Red Cross Report, at 14. See also Jane Mayer, The Black Sites: A rare look inside C.I.A.’s secret interrogation program, The New Yorker, Aug. 13, 2007. http://www.newyorker.com/reporting/2007/08/13/070813fa_fact_mayer..
[99] Jane Mayer, The Dark Side, at 165 (Doubleday 2008).
[100] Id. The CIA’s use of this method on abu Zubaydah is confirmed by the Agency’s Inspector General Report and by a Justice Department memorandum, which describes the technique this way: “Cramped confinement involves the placement of the individual in a confined space, the dimensions of which restrict the individual’s movement. The confined space is usually dark.” CIA Inspector General Report at 13.
[101] At the time that the CIA requested authorization to use abusive techniques on abu Zubaydah, his wounds were still being treated. See Bybee memorandum at 2, 3.
[102] CIA Inspector General Report at 36.
[103] Id., at 36-37.
[104] Red Cross report at 12. See also Scott Shane, Book Cites Secret Red Cross Report of C.I.A. Torture of Qaeda Captives, N.Y. Times, July 11, 2008. http://www.nytimes.com/2008/07/11/washington/11detain.html; see also Scott Horton, Six Questions for Jane Mayer, Author of The Dark Side, Harper’s Magazine, Jul. 14, 2008, available at http://harpers.org/archive/2008/07/hbc-90003234 (noting, “This account – which [Abu Zubaydah] gave to the International Committee of the Red Cross (ICRC) – was confirmed to me independently by a former CIA officer familiar with his interrogation.”); Jane Mayer, The Dark Side, at 169 (Doubleday 2008) (“Zubayda described being thrust headfirst against a bare concrete wall. In the beginning, he said, he was propelled by just a towel that was wrapped around his neck . . . Later, however, the interrogators apparently became more technically proficient. Zubayda reported that they used something akin to a dog collar, a thick plastic strip that encircled the prisoners’ necks.”).
[105] Red Cross Report at 8, 11; As New Evidence Emerges that ‘War on Terror’ Prisoners were Held on Diego Garcia, Reprieve Demands Immediate Action from the British Government, Reprieve, July 31, 2008. http://www.reprieve.org.uk/documents/2008_08_01DiegoGarciascandal-ReprievedemandsimmediateactionfromUKgovernment.pdf. ; Red Cross Report at 15.
[106] Jane Mayer, The Dark Side, at 168 (Doubleday 2008).
[107] Red Cross Report at 8.
[108] See description of Dilawar’s death in Senate Armed Services Committee Report at 151-52, citing U.S. Army Criminal Investigation Command Bagram Branch Office Memorandum, CID Report of Investigation FINAL -0134-02-CID36923533 (October 8, 2004). [new citation possibly tk]
[109] As New Evidence Emerges that ‘War on Terror’ Prisoners were Held on Diego Garcia, Reprieve Demands Immediate Action from the British Government, Reprieve, July 31, 2008. http://www.reprieve.org.uk/documents/2008_08_01DiegoGarciascandal-ReprievedemandsimmediateactionfromUKgovernment.pdf. See also David Johnston, At a Secret Interrogation, Dispute Flared Over Tactics, The New York Times, Sept. 10, 2006. http://www.nytimes.com/2006/09/10/washington/10detain.html?pagewanted=1.
[110] CIA Inspector General Report at 35.
[111] Bybee memorandum at 3.
[112] “‘The worst thing in the world’, said O’Brien, ‘varies from individual to individual. It may be burial alive, or death by fire, or by drowning, or by impalement, or fifty other deaths. There are cases where it is some quite trivial thing, not even fatal.’…
‘By itself’, he said, ‘pain is not always enough. There are occasions when a human being will stand out against pain, even to the point of death. But for everyone there is something unendurable – something that cannot be contemplated. Courage and cowardice are not involved. If you are falling from a height it is not cowardly to clutch at a rope. If you have come up from deep water it is not cowardly to fill your lungs with air. It is merely an instinct which cannot be destroyed. It is the same with the rats. For you, they are unendurable. They are a form of pressure that you cannot withstand, even if you wished to. You will do what is required of you.’” George Orwell, Nineteen Eighty-Four 283-84 (1949).
[113] CIA Inspector General Report at 36; Red Cross Report at 10.
[114] Red Cross Report at 30.
[115] Id.
[116] Red Cross Report at 24, 26.
[117] Id., at 27.
[118] Senate Armed Services Committee Report at 5.
[119] Office of the Inspector General of the Department of Defense, Review of DoD-Directed Investigations of Detainee Abuse, August 26, 2006, at 24.
[120] Senate Armed Services Committee Report at xiv and 14.
[121] Senate Armed Services Committee Report at xxvii.
[122] CIA Inspector General Report at 21.
[123] Eban, Rorschach and Awe.
[124] Cole, Psychologists Told CIA Waterboarding Was Safe.
[125] Id.
[126] Id.
[127] Testimony of Ali Soufan before the United States Senate Committee on the Judiciary (May 13, 2009), available at http://judiciary.senate.gov/hearings/testimony.cfm?id=3842&wit_id=7906 (hereinafter “Soufan Testimony”).
[128] Soufan Testimony.
[129] Id.
[130] Eban, Rorschach and Awe.
[131] Eban, Rorschach and Awe; see also Soufan Testimony (“Throughout this time, my fellow FBI agent and I, along with a top CIA interrogator who was working with us, protested, but we were overruled. I should also note that another colleague, an operational psychologist for the CIA, had left the location because he objected to what was being done.”).
[132] Eban, Rorschach and Awe.
[133] Senate Armed Services Committee Report at xxvi.
[134] Eban, Rorschach and Awe.
[135] Physicians for Human Rights and Human Rights First cite “[a] study of healthy well-trained military men participating in Prisoner of War survivor school training [that] reveals that even a five hour experience of simulated ill treatment of a Prisoner of War (POW) (including mock interrogations and dilemmas designed to test the soldier’s ability to avoid exploitation by captors) leads to symptoms of peritraumatic dissociation (i.e. amnesia, depersonalization, and derealization symptoms experienced during and for a short time immediately after exposure to a traumatic event.). Further, exposure to a highly stressful experience of being placed in a mock POW environment was associated with an increase in such symptoms in nearly all participants.” Jarle Eid & Charles A. Morgan, III., Dissociation, Hardiness, and Performance in Military Cadets Participating in Survival Training, 171 mil. meD. 436 (2006), cited in “Leave No Marks: Enhanced Interrogation Techniques and the Risk of Criminality,” report of Physicians for Human Rights and Human Rights First, August 2007, 6. In a subsequent report, Physicians for Human Rights went on to state that, “Although these [prior PHR] reports were published in 2007 and 2008 respectively, they summarized scientific literature that was well established in 2001. A large body of research exists on the effects of the techniques used in SERE training, much of it supported by the CIA. See for example The Search for the Manchurian Candidate (c) 1979 by John Marks. Published by Times Books.” “Aiding Torture: Health Professionals’ Ethics and Human Rights Violations Revealed in the May 2004 CIA Inspector General’s Report,” Physicians for Human Rights, August 2009, 5.
[136] Cole, Psychologists Told CIA Waterboarding Was Safe.
[137] Senate Armed Services Committee Report at 24.
[138] Id.
[139] Id.
[140] See Bybee memorandum at 1.
[141] Bybee memorandum at 5.
[142] Senate Armed Services Committee Report at xvi.
[143] Senate Armed Services Committee Report at 5-6 [quoting “senior Army SERE psychologist LTC Morgan Banks in an email to personnel at Guantanamo Bay, Cuba”].
[144] CIA Inspector General Report at 37.
[145] Basoglu M. et al., Torture vs. Other Cruel, Inhuman or Degrading Treatment: Is the Distinction Real or Apparent?, Archives Gen. Psychiatry 277 (2007).
[146] “Leave No Marks: Enhanced Interrogation Techniques and the Risk of Criminality,” report of Physicians for Human Rights and Human Rights First, August 2007, 3.
[147] “Leave No Marks: Enhanced Interrogation Techniques and the Risk of Criminality,” report of Physicians for Human Rights and Human Rights First, August 2007, 43, Citing Office of the U.N. High Comm’r for Human Rights, Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 48, u.n. Doc hr/P/Pt/8/rev.1 (Aug. 9, 1999), 29, available at http://www.ohchr.org/english/about/publications/docs/8rev1.pdf.
[148] Physicians for Human Rights, Broken Law, Broken Lives: Medical Evidence of Torture by U.S. Personnel and Its Impact (2008), http://brokenlives.info/, pg. 91-92; “Leave No Marks: Enhanced Interrogation Techniques and the Risk of Criminality,” report of Physicians for Human Rights and Human Rights First, August 2007, 43.
[149] Letter from Allen S. Keller, Program Dir., Bellevue/NYU Program for Survivors of Torture, Gerald P. Koocher, President, American Psychological Association, Burton J. Lee, Physician to the President for George H.W. Bush, Bradley D. Olson, Chair, Divisions for Social Justice, American Psychological Association, Pedro Ruiz, President of the American Psychiatric Association, Steven S. Sharfstein, Immediate Past President, American Psychiatric Association, Brigadier General Stephen N. Xenakis, (Ret. U.S.A) and Philip G. Zimbardo, Prof. Emeritus, Stanford & past President, American Psychological Association, to Sen. John McCain (Sept. 21, 2006), available at http://physiciansforhumanrights.org/library/news-2006-09-22.html. Senator McCain has publicly stated that the use of torture not only was unnecessary and a “violation of the Geneva Conventions and the convention against torture that we ratified under President Reagan,” but also that “once publicized, [it] helped al Qaeda recruit.” Sam Stein, McCain Whacks Cheney: Torture Violated Law And Helped The Terrorists, Huffington Post, August 30, 2009, http://www.huffingtonpost.com/2009/08/30/mccain-whacks-cheney-tort_n_272179.html.
[150] Darius Rejali, Torture and Democracy 454 (Princeton University Press 2007).
[151] Jane Mayer, The Black Sites: A rare look inside C.I.A.’s secret interrogation program, The New Yorker, Aug. 13, 2007. http://www.newyorker.com/reporting/2007/08/13/070813fa_fact_mayer
[152] 004. INCORPORATION BY REFERENCE (RULE 4).
The document titled “Ethical Principles of Psychologists and Code of Conduct,” published by the American Psychological Association and dated June 1, 2003, as referenced in Section 350, is herein incorporated by reference and is available from the Board’s office and on the Board web site.
. . .
350. CODE OF ETHICS (RULE 350).
All licensees shall have knowledge of the Ethical Principles of Psychologists and Code of Conduct, as published in the American Psychologist, as referenced in Section 004.
IDAPA 24, Title 12, Chapter 01, rules 4 and 350 (current as of May 2009).
[153] See, e.g., “Reaffirmation of the American Psychological Association Position Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment and Its Application to Individuals Defined in the United States Code as ‘Enemy Combatants,’” Resolution Adopted by APA on August 19, 2007, Amended by APA on February 22, 2008, available at http://www.apa.org/governance/resolutions/notorture0807.html.
[154] 3.04 Avoiding Harm
Psychologists take reasonable steps to avoid harming their clients/patients, students, supervisees, research participants, organizational clients, and others with whom they work, and to minimize harm where it is foreseeable and unavoidable.
Ethical Principles of Psychologists and Code Of Conduct.
Though neither the APA Code nor Idaho statutes define the term “patients,” the detainees and abu Zubaydah in particular, were undoubtedly under Dr. Jessen’s professional care and would reasonably be understood to fall under the protection of this ethical standard, especially given the “others with whom they work” language. See below for additional discussion of definitions.
[155] See discussion of “draft exploitation plan,” above.
[156] 3.08 Exploitative Relationships
Psychologists do not exploit persons over whom they have supervisory, evaluative, or other authority such as clients/patients, students, supervisees, research participants, and employees.
Ethical Principles of Psychologists and Code Of Conduct.
[157] Senate Armed Services Committee Report at 14.
[158] See additional discussion in Section III.A.1 and notes 42-44, above.
[159] See additional discussion in Section III.A.1 and notes 35-39, above.
[160] The references to – and reliance upon the advice of – SERE experts in the August 1, 2002, memorandum from Jay Bybee indicate that Dr. Jessen used information he had gleaned about what he perceived to be Abu Zubaydah’s fears and vulnerabilities in order to concoct an interrogation scheme that comported with Dr. Jessen’s assessment that harsh, degrading treatment of Abu Zubaydah and other detainees would elicit information. “You would like to place Mr. Zubaydah in a cramped confined box with an insect. You have informed us that he appears to have a fear of insects. In particular, you would like to tell Zubaydah that you intend to place a stinging insect into the box with him.” Memorandum for John A. Rizzo, Acting General Counsel of the Central Intelligence Agency, Re: Interrogation of al Qaeda Operative, August 1, 2002, 3.
[161] 3.01 Unfair Discrimination
In their work-related activities, psychologists do not engage in unfair discrimination based on age, gender, gender identity, race, ethnicity, culture, national origin, religion, sexual orientation, disability, socioeconomic status, or any basis proscribed by law.
Ethical Principles of Psychologists and Code Of Conduct.
[162] Memorandum for Col Cooney, Prisoner Handling Recommendations (February 28, 2002), attached to e-mail from Bruce Jessen to Joseph Witsch (March 13, 2002) quoted in Senate Armed Services Committee Report at 11 (brackets in original).
[163] Red Cross Report at 17.
[164] Carol Delaney, Untangling the Meanings of Hair in Turkish Society, Anthropological Quarterly, Vol. 67, No. 4 (Oct., 1994), pp. 159-172, The George Washington University Institute for Ethnographic Research. Pg. 167.
[165] Report of the Committee on Armed Services, supra note 1, at 90.
[166] In a report, Physicians for Human Rights describes the removal of detainees clothing during interrogations as an example of sexual humiliation. “Sexual humiliation as an interrogation technique relies on perceived cultural and religious taboos to target the detainee’s sense of identity and, in men, presumed dominance as a male to humiliate and control the victim and induce the threat and fear of sexual abuse or physical assault.” The purpose of such conduct is to “exploit cultural and religious stereotypes regarding sexual behavior and induce feelings of shame, guilt, and worthlessness.” “Leave No Marks: Enhanced Interrogation Techniques and the Risk of Criminality,” report of Physicians for Human Rights and Human Rights First, August 2007, 29.
[167] 2.01 Boundaries of Competence
(a) Psychologists provide services, teach, and conduct research with populations and in areas only within the boundaries of their competence, based on their education, training, supervised experience, consultation, study, or professional experience.
Ethical Principles of Psychologists and Code Of Conduct.
[168] Eban, Rorschach and Awe.
[169] The APA describes a July 2003 conference that Dr. Mitchell and Dr. Jessen attended this way:
On July 17-18, RAND Corp. and the APA hosted a workshop entitled the “Science of Deception: Integration of Practice and Theory” with generous funding from the Central Intelligence Agency (CIA). The workshop provided an opportunity to bring together individuals with a need to understand and use deception in the service of national defense/security with those who investigate the phenomena and mechanisms of deception. Meeting at RAND headquarters in Arlington, VA, the workshop drew together approximately 40 individuals including research psychologists, psychiatrists, neurologists who study various aspects of deception and representatives from the CIA, FBI and Department of Defense with interests in intelligence operations. In addition, representatives from the White House Office of Science and Technology Policy and the Science and Technology Directorate of the Department of Homeland Security were present. . . .
The [breakout session] scenarios dealt broadly with issues such as embassy walk-in informants, threat assessment, intelligence gathering, and law enforcement interrogation and debriefing. Participants were prompted in advance to think about research issues and practical considerations they wanted the broader group to consider. Across the two days, there were a number of thought-provoking discussions suggesting the need to develop both short-term and long-term research programs on deception. Workshop participants will review transcripts from the meeting toward the goal of developing a more detailed summary suitable for public consumption.
APA’s Science and Policy Insider News, July 2003, available at http://www.apa.org/ppo/spin/703.html. Dr. Mitchell and Dr. Jessen’s attendance at the conference is noted in “Rorschach and Awe,” supra note 10, among other sources.
[170] 5.01 Avoidance of False or Deceptive Statements
(a) Public statements include . . . lectures and public oral presentations . . . . Psychologists do not knowingly make public statements that are false, deceptive, or fraudulent concerning their research, practice, or other work activities or those of persons or organizations with which they are affiliated.
Ethical Principles of Psychologists and Code Of Conduct.
[171] 3.06 Conflict of Interest
Psychologists refrain from taking on a professional role when personal, scientific, professional, legal, financial, or other interests or relationships could reasonably be expected to (1) impair their objectivity, competence, or effectiveness in performing their functions as psychologists or (2) expose the person or organization with whom the professional relationship exists to harm or exploitation.
Ethical Principles of Psychologists and Code Of Conduct.
[172] 1.02 Conflicts Between Ethics and Law, Regulations, or Other Governing Legal Authority
If psychologists’ ethical responsibilities conflict with law, regulations, or other governing legal authority, psychologists make known their commitment to the Ethics Code and take steps to resolve the conflict. If the conflict is unresolvable via such means, psychologists may adhere to the requirements of the law, regulations, or other governing legal authority.
[173] In fact, his actions in all likelihood violated the law. [Cite to CAT etc tk.]
[174] “No Defense to Torture under the APA Ethics Code,” APA Ethics Committee Statement, June 2009, available at http://www.apa.org/ethics/torture-code.html.
[175] See, e.g., “Reaffirmation of the American Psychological Association Position Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment and Its Application to Individuals Defined in the United States Code as ‘Enemy Combatants,’” Resolution Adopted by APA on August 19, 2007, Amended by APA on February 22, 2008, available at http://www.apa.org/governance/resolutions/notorture0807.html.
[176] “An absolute prohibition against the following techniques [ . . . ] arises from, is understood in the context of, and is interpreted according to these texts: mock executions; water-boarding or any other form of simulated drowning or suffocation; sexual humiliation; rape; cultural or religious humiliation; exploitation of fears, phobias or psychopathology; induced hypothermia; the use of psychotropic drugs or mind-altering substances; hooding; forced nakedness; stress positions; the use of dogs to threaten or intimidate; physical assault including slapping or shaking; exposure to extreme heat or cold; threats of harm or death; isolation; sensory deprivation and over-stimulation; sleep deprivation[…]. Psychologists are absolutely prohibited from knowingly planning, designing, participating in or assisting in the use of all condemned techniques at any time and may not enlist others to employ these techniques in order to circumvent this resolution’s prohibition.” “No Defense to Torture under the APA Ethics Code,” APA Ethics Committee Statement, June 2009, (emphasis added to indicate those techniques detailed in the Bybee memorandum).