Legal Opinion Needed? Consult a Psychologist

The newly released report by the Department of Justice’s Office of Professional Responsibility (OPR report) shows not only that John Yoo and Jay Bybee created disgracefully flawed legal analysis but also that they tried to justify that reasoning by using bad science. As PHR has previously reported, the DOJ's Office of Legal Counsel (OLC) exploited certain health professionals’ opinions to establish the legal justifications for the “enhanced interrogation” program. The OPR report shows in greater detail just how sloppy and intellectually indefensible this process was.The most egregious case is John Yoo's OLC analysis of the legality of waterboarding. Yoo later admitted to OPR that he believed from the outset that waterboarding came close to the legal standard of torture. Rather than turning to the relevant case law (which includes convictions for waterboarding), Yoo relied on information provided by psychologists involved in the US military's Survival, Evasion, Resistance, Escape (SERE) program, designed to instruct service personnel in physical and psychological torture resistance.The psychologists Yoo cited were regarded as experts in waterboarding because of research they conducted into its use in training US service personnel. "Based on your research into the use of these methods at the SERE school…," Yoo concluded, "you do not anticipate that any prolonged mental harm would result from the use of the waterboard.”The SERE training setting differs dramatically from an interrogation setting. In SERE training those being waterboarded were volunteers who gave consent and were exposed to limited applications of waterboarding over a short period. They understood that they were participating in an exercise that would be ended any time they exhibit severe distress or if the participants used a previously agreed upon safe word to stop it. Though sometimes harrowing for the trainees, the situation could not approach the extreme psychological distress of detainees.The CIA Inspector General’s report publicly released last year analyzed this issue and concluded that:

The expertise of the SERE psychologists/interrogators on the waterboard was probably misrepresented at the time, as the SERE waterboard experience is so different as to make it almost irrelevant.

For Yoo, this expertise was not only relevant, it was a key factor in his finding that waterboarding was legal.The OPR report rightly faults Yoo and Jay Bybee for this misuse of the irrelevant SERE experience.? Subsequently, though, Associate Deputy Attorney General David Margolis wrote a review of the OPR report which rejected this finding, and others, in the process of overturning the OPR report’s conclusion that Yoo and Bybee should be referred for state bar disciplinary proceedings. ?Amazingly, in his review Margolis still finds the reliance on SERE training reasonable:

The SERE training—despite its differences with real world application of the waterboard—would be relevant to the threshold question of whether everyone subjected to the waterboard suffers severe mental pain or suffering.

Having established this erroneous standard, Yoo and Bybee consider the specific case of detainee Abu Zubaydah and try to determine from afar whether he would suffer severe mental pain or suffering as a result of being waterboarding. It is totally inappropriate to issue a legal opinion on an issue as important as the torture definition solely upon the basis of someone else’s unexamined and un-compared assessment of the facts. Yoo and Bybee relied on the determination of an unidentified psychologist that Zubaydah could withstand waterboarding. More bad science and bad legal reasoning.Margolis notes that:

The CIA’s psychological assessment [redacted] concluded that he [Zubaydah] would not experience any mental harm from the use of these techniques and OLC relied on that conclusion.

Margolis is evidently untroubled that Yoo and Bybee, when asked for an opinion about the legality of the technique of waterboarding, essentially turn over this judgment to the assessment of a psychologist. This is not legal analysis but an abdication of responsibility. If the psychologist thinks Zubaydah will be fine with waterboarding, Yoo and Bybee go along and give the green light. Leaving judgments of expected pain levels, and consequent legality, to psychologists involved in administering torture resistance training hardly sets a rigorous legal standard and is quite likely to empower those psychologists and facilitate abuse.Any advice the psychologists coming out of the SERE training program gave to John Yoo was not only irrelevant because of the differences with waterboarding as practiced in interrogations but it was also based on incomplete knowledge of the medical impact of waterboarding on SERE trainees. The combination of John Yoo’s “intentional professional misconduct” as found by the OPR report, and the willingness of psychologists to provide conclusions that were not based on rigorous science and were likely biased, resulted in approval of a technique that was clearly torture.As PHR has emphasized for years, the involvement of health professionals in designing, implementing and monitoring interrogation programs is unethical and is perhaps illegal in some cases. Health professionals should not be involved in calibrating pain; doing so violates their duty to act in the best interest of persons they treat.The Margolis Memorandum cannot be the final chapter in determining wrongdoing in the Bush Administration’s torture program. A full investigation of the role of health professionals in the whole torture regime is required and they, along with John Yoo and Jay Bybee, need to be professionally disciplined, and, if determined appropriate after a full investigation, perhaps criminally prosecuted.

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