Thursday, April 28, 2011

One Guantánamo Hearing That Did Take Place in New York

(Many thanks to IntlawGrrls for inviting me to contribute this guest post)

Earlier this month, in an unassuming Manhattan state supreme courtroom, I had the privilege to present oral argument at the first U.S. court hearing on whether a psychologist’s participation in abusive interrogations can violate professional standards of conduct. The Center for Justice & Accountability and the New York Civil Liberties Union represent New York psychologist Dr. Steven Reisner (left) in this proceeding against the New York Department of Education’s Office of Professional Discipline (OPD) for its failure to investigate his fellow New York psychologist Dr. John Leso for his role in the abusive interrogation program at Guantánamo Bay, Cuba.
Psychologists, like other medical professionals, assume the obligation to do no harm. But in response to the reported roles that psychologists have played in the interrogation of detainees taken into U.S. custody since September 11, seemingly bedrock principles of law and professional standards have become the subject of debate. While the American Medical Association and the American Psychiatric Association moved swiftly to endorse codes prohibiting their members from participating in abusive interrogations, the American Psychological Association has proved more ambivalent, claiming that psychologists are in “a unique position to assist in ensuring that such processes are safe and ethical for all participants.” But even so, the American Psychological Association has clarified its position that
Any direct or indirect participation in any act of torture or other forms of cruel, degrading or inhuman treatment or punishment by psychologists is strictly prohibited. There are no exceptions. Such acts as waterboarding, sexual humiliation, stress positions and exploitation of phobias are clear violations of APA's no torture/no abuse policy.
New York’s Department of Education and its Office of Professional Discipline find no such prohibition in the state’s professional ethics standards since they reject, at the outset, that such conduct constitutes the practice of psychology at all.
Dr. Reisner and CJA filed a professional misconduct complaint against Dr. Leso last July, alleging that while Dr. Leso served as a clinical psychologist at Guantánamo, he recommended a series of escalating physically and psychologically abusive interrogation tactics to be used on detainees and personally supervised and participated in interrogations where his tactics were used. The OPD declined jurisdiction, claiming that Dr. Leso’s alleged conduct at Guantánamo did not qualify as the practice of psychology as defined by New York law. To wit, if Dr. Leso intended to harm detainees on behalf of an institutional client (the Department of Defense) then they were not his patients. Because they were not his patients, his conduct in relation to them was not subject to professional standards. Thus, the complaint did not trigger an otherwise mandatory investigation. At the hearing, the Attorney General, arguing on behalf of the Department of Education, claimed that rejecting the complaint was correct, since Dr. Leso apparently was asked to use psychology as a weapon, an act that the Attorney General maintains is not contemplated by the legal definition of the profession.
Such arguments turn the healing nature of psychology completely on its head. By the same logic, if a school psychologist had recommended similar abuses to be applied to children, if a nursing home psychologist had done the same to elderly inmates, or if a prison or locked-ward psychologist had done the same to incarcerated inmates, these psychologists, too, would be subject to no professional standards or regulation whatsoever. In other words, the implication of the Attorney General’s position is that the intent to harm should immunize Dr. Leso and other licensed psychologists working in institutional settings from the professional ethics standards all New York psychologists are bound to uphold. Noting the controversial character of the case, the court queried whether it had any authority to rule differently, such determinations having been entrusted to the Department of Education and its Office of Professional Discipline.
Indeed, New York’s Department of Education, like the licensing authorities in other states and throughout the world, has been entrusted with the obligation to ensure that licensed professionals abide by professional standards of ethics, and they must not be allowed to shirk that responsibility. Although this case may seem controversial, New York’s is not the first licensing authority to face questions like those raised by our complaint. Similar authorities in South Africa, Brazil, Chile, and Uruguay have held doctors accountable under professional ethics standards for participation in torture and other human rights abuses. Professional ethics standards are designed not only to protect the public but also to protect health care professionals themselves from pressure to harm people in their care, to protect the very integrity of the profession. The complaint against Dr. Leso alleges that while he was acting on the authority of a New York license to practice psychology, he lost his ethical bearings in the context of abusive interrogations at Guantánamo. Whether New York will correct those bearings remains to be seen.
To learn more about the case, please click here. To learn more about intelligence ethics (including sources for this blog post), please click here.


1 comment:

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