Did the American Psychological Association's Board Violate DC Law?Among the many findings of the Hoffman Report was how the American Psychological Association’s (APA) Board acted when the time came to review the report that allowed psychologists to remain involved in torture interrogations being carried out by the military. The document, called the PENS report, relaxed psychologists’ ethical guidelines to allow them to continue to participate in these interrogations. This was largely at the behest of the U.S. Department of Defense (DoD), according to the conclusions of the Hoffman Report.

The effort that led to the PENS report apparently began with a New York Times story on November 30, 2004 that revealed allegations from a “leaked report by the International Committee of the Red Cross that psychologists at Guantanamo had been involved in psychological and physical coercion that was “tantamount to torture.”” Within days of that article, the APA’s leadership sprang into action to “figure out how to address the issue from a messaging perspective.” A task force, of course!

The PENS report was authored by a stacked committee (“the PENS Task Force”) of 9 people, 6 of whom had direct ties with the military. Gerald Koocher, then APA president-elect, was also a voting member of the task force and “took aggressive and vocal positions against the three non-DoD members: thus, the split was effectively 7-3 while Koocher was a the meeting.” The makeup of the committee was carefully designed from its outset so that its outcome would be DoD-friendly.

Why did the APA want to ensure the PENS report came out the way the DoD wanted? The Hoffman Report answers:

[…] because of the very substantial benefits that DoD had conferred and continued to confer on psychology as a profession, and because APA wanted a favorable result from the critical policy DoD was in the midst of developing that would determine whether and how deeply psychologists could remain involved in intelligence activities.

The final PENS report, contrary to APA’s public-facing media assertions, was not a specific nor detailed document. It was a very general, broad document designed to allow psychologists to continue to work in military interrogation settings without violating their ethical standards.

Emergency! How the Board Made it APA Policy Overnight

The APA’s efforts were apparently initially driven by media coverage of psychologists working in an interrogation setting. So it’s not surprising to learn that adopting the PENS report as official APA policy was also driven — not by a careful analysis or thoughtful consideration — but by an “emergency” meeting of the American Psychological Association’s Board.

After the task force report was finalized in Sunday, June 26, the Board of Directors acted in a highly unusual fashion to declare an “emergency” and to adopt the report as “APA policy,” an act normally reserved for the APA Council of Representatives.

The Board was not required to take any quick action with regard to the task force. Behnke had arranged for expedited approval by the Ethics Committee, and if there was a desire to formally adopt the report as APA policy, the Council of Representatives was meeting about six weeks later.

But the evidence shows that the Board acted in this unusual fashion motivated principally by the desire of APA Board members Ron Levant (APA President) and Gerry Koocher (APA President-Elect) to (1) create a PR message that would be perceived as backed not just by a public statement but by actual substance (a new APA ethics policy) and that could be used in a fluid PR situation perceived as negative, and (2) curry favor with DoD which had communicated that it wanted a prompt release of the report so it could use the report for its own purposes (which were both PR and policy purposes).

The New York Times had run an article on Friday, June 24, the first day of the task force meeting, reporting that “[m]ilitary doctors at Guantanamo have aided interrogators in conducting and refining coercive interrogations of detainees, including providing advice about how to increase stress levels and exploit fears.” The article quoted both Behnke and the ethics committee chairman of the American Psychiatric Association and compared the positions of the two organizations: “While the American Psychiatric Association has guidelines that specifically prohibit the kinds of behaviors described by the former interrogators for their members who are medical doctors, the rules for psychologists are less clear. . . . [I]n a statement issued in December, the American Psychological Association said the issue of involvement of its members in ‘national security endeavors’ was new.”

APA President Levant worried that the article made APA look bad because it “portrayed APA as unsure of where the ethical boundaries lie.”

To Levant and Koocher, managing APA’s image required it to show that the task force report was more than simply a set of high-level, “loose” statements that might be justified as a tentative “initial step,” but was instead a clear and “strict” statement of the actual ethical boundaries. The fact that the PENS report was nothing of the sort did not stand in the way of their strategic attempt to create the best possible media response.

By the last day of the task force meeting, Behnke had received information that an in-depth article by Jane Mayer on the policy and practice of aggressive interrogation techniques would be published in the New Yorker as soon as Tuesday, July 5,18 and advised Board members Koocher and Anton (along with Anderson, Farberman and Gilfoyle) of this. In response, Farberman said that if the PENS report was “fully approved” by that date, “we have very strong talking points. Without it we’re not in as strong a position.”

In addition, Behnke was communicating to Levant, Koocher, Anton, and APA management that DoD was very eager to get a copy of the PENS report, especially with The New Yorker article due to come out. Banks wrote Behnke to express appreciation for APA “support[ing]” DoD in the report: “I just finished with the [Army] Surgeon General and he will be in front of the Senate soon, on this issue. (He is very supportive.) Having APA’s support will mean a lot.”

So how to adopt this as APA policy with the Council’s consent? Declare an emergency!

In this context of vigorous media coverage and intense demand from DoD, President Ron Levant suggested to the APA Board not just that it declare an emergency and act in an expedited manner regarding the report, but that it take action to actually “adopt the task force report as policy.” In an email to the Board early in the morning of Friday, July 1, Levant asked for the views of the Board about “declaring an emergency to adopt” the report, “the emergency being that APA and psychology are getting pretty well trashed in the media, damaging our public image.” […]

By Friday, July 1, without an in–person or phone meeting or discussion, but simply some short emails, all the Board members who responded to Levant’s question had voted in favor of declaring an emergency and adopting the report as APA policy.

So because the APA is being trashed in the media, that’s a Board emergency? (The only other time in history the APA Board has declared an emergency meeting is to deal with a refinancing issue, something that constituted an actual emergency for the organization.)

This episode alone demonstrates, in my opinion, how reactionary and ridiculous the APA Board can be at times. Instead of engaging in thoughtful consideration of the matter face-to-face, they were driven by negative media coverage to act. This is how a $100 million+ non-profit makes its decisions??

Did the APA Board Break the Law?

So not only did they take emergency action for no reason other than because there were some apparently thin-skinned people on the Board, but they may have also violated DC law that governs non-profit organizations:

In looking back on this Board action, it was brought to our attention that under the Washington DC law applicable to not-for-profit corporations like APA, Board votes taken outside of an in-person meeting require a unanimous, written vote from all Board members by sending in signed proxy statements.

Not only are there no such signed proxy statements, but APA has no records of all Board members voting by email.

Our search of APA’s emails uncovered votes from 11 of the 12 Board members, but we did not find a vote or email response from Board member Jessica Henderson Daniel, who did not remember voting on this. Thus, it may be that the Board action adopting the PENS report as APA policy in 2005 was not a valid action of the Board on procedural grounds.

You would think that the Board — especially APA CEO and Executive Vice President Norman Anderson — would know how Board meetings need to be run. Whether through ignorance or incompetence, this demonstrates how shoddily run the APA Board has been at times.

Was there any legitimate reason to run roughshod over the APA’s Council of Representatives? Not a one. Did the APA Council of Representatives ever reprimand the Board for their hasty actions usurping the Council’s authority? Not that I could find. Instead, they simply rubber-stamped the PENS Task Force report when they next met.