By Bruce Miller
My name is Bruce Miller and I am a professor at Western New England University School of Law in Springfield, Massachusetts. I have taught Constitutional Law since 1980 and courses about the relationship of law and terrorism since the attacks of September 11, 2001. For the past eight years, I have been working with the Massachusetts Campaign Against Torture, a citizens’ group dedicated to ending the involvement of health care providers, particularly psychologists, in the torture and abusive treatment of prisoners and detainees. I’m grateful to the Joint Committee on Public Health for its careful consideration of Senate Bill No. 1194 and House Bill No. 1149, which would prohibit such involvement by Massachusetts licensed professionals, and for the opportunity to speak in support of these important Bills.
The scope and depth of participation of psychologists in the design and implementation of abusive methods of interrogating national security detainees is now beyond dispute. The Feinstein Report, issued by the U.S. Senate in December of 2014, confirmed the CIA’s long suspected use of techniques amounting to torture of detainees held at so-called Black Sites around the world, between 2001 and 2006. In April of 2015, The Coalition for Ethical Psychology (CEP) published a study that revealed the central role played by psychologists in fashioning, promoting, and even applying these techniques directly to detainees. See STEPHEN SOLDZ, NATHANIEL RAYMOND & STEVEN REISNER, ALL THE PRESIDENT’S PSYCHOLOGISTS, 11-16 (April 2015). The CEP study also detailed how the CIA’s heavy reliance on health care professionals in its abusive interrogation program was in turn used to support the specious defense of the program as “safe” effective, and . . . legal.” Id. at 26. The program was in fact none of these things. But the presence of health care providers at every stage of its design and execution permitted the program’s defenders to suggest that licensed professionals, practicing in accordance with appropriate ethical constraints, provided a reliable safeguard against the abuse of detainees.
To investigate their complicity in CIA torture, the American Psychological Association (APA) retained David Hoffman as independent counsel. In July of 2015, Hoffman submitted his report to the APA’s Board of Directors. The Hoffman Report definitively shows that the CIA’s use of psychologists, which had been trumpeted as a safeguard, was in fact a green light for torture. The Report further revealed that leaders of the APA colluded with CIA officials to provide ethical cover for the psychologists who participated in the abuse of detainees. To its credit, the APA took Hoffman’s findings to heart. In August of 2015, the APA Council of Representatives approved, by near unanimous vote, a resolution prohibiting the participation of psychologists in national security interrogations. The Council also adopted a definition of the ban against torture and cruel, inhumane, and abusive treatment that is virtually identical to the one provided by the Bills under consideration by the Committee today.
The wisdom of the APA’s resolution was underscored this past summer by the settlement of a lawsuit brought by the ACLU on behalf of three Black Site detainees who were tortured by the CIA. The defendants in this suit were James Mitchell and Bruce Jessen, both psychologists, who designed the interrogation methods used on the three detainees. The settlement, reached on the eve of trial, followed a ruling by the presiding federal judge that the evidence secured from deposition testimony of Mitchell and Jessen “would support a finding [that they] designed the [techniques] to be used on detainees, and thus they clearly had knowledge they would be so used.”7 Mitchell and Jessen themselves acknowledged, as part of the settlement, that they worked with the CIA to develop a program that contemplated the use of specific coercive methods to interrogate detainees.
In my view, the 2015 APA resolution and the Mitchell-Jessen settlement remove any basis for principled opposition from within the health care profession to the Bills being considered by the Committee today. But they also underscore the practical need for the Bills. Mitchell and Jessen continue to maintain publicly that they did nothing wrong. And, as important as the revised APA standard is, it is still just that—a standard of responsibility adopted by a national professional organization. By itself, it does not carry the force of law. But Senate Bill No. 1194 and House Bill No. 1149 will. If enacted, they will make clear that a Massachusetts health care provider seeking to obtain or keep a professional license shall not “engage, directly or indirectly, in the torture or abusive treatment of a prisoner,” or “participate in the interrogation of a prisoner.” An Act Prohibiting the Participation of Healthcare Professionals in the Torture and Abuse of Prisoners, H.1149, 190th Cong. § 2(b) (2017).
The Bills will not, by themselves, end torture or other abusive practices. The daunting challenges presented by lethal terrorist attacks on civilians may tempt authorities to resort to using these practices again, despite being proven that they are not effective, legal, or safe. But state laws like these will prevent those who might torture from claiming the false imprimatur of endorsement by licensed health care professionals. For Massachusetts to be the first state to cut this link would provide an exemplary contribution to the protection of both human rights and professional integrity.