Saturday, August 1, 2009

The Nuremberg Defense: Will the APA be first in the dock?

Nuremberg Trials. Defendants in their dock. The main target of the prosecution was Hermann Göring (at the left edge on the first row of benches), considered to be the most important surviving official in the Third Reich after Hitler's death.

The Doctors Trial considered the fate of twenty-three German physicians who either participated in the Nazi program to euthanize persons deemed "unworthy of life" (the mentally ill, mentally retarded, or physically disabled) or who conducted experiments on concentration camp prisoners without their consent. The Doctors Trial lasted 140 days. Eighty-five witnesses testified and almost 1,500 documents were introduced. Sixteen of the doctors charged were found guilty.

The American Medical Association has forbidden participation in Military Interrogations as have professional licensed associations of psychiatrists. Yet some health care providers - notably the APA has not yet clearly renounced participation.

Will the American Psychological Association finally renounce the Nuremberg Defense? Or instead might they be first in the dock among large US professional groups to be investigated for war crimes?

The APA and the Nuremberg Defense July 26, 2009 Stephen Soldz

The long-standing struggle within the American Psychological Association over involvement of psychologists in potentially abusive national security interrogations is heating up again, this time with a dispute over its ethics code. In 2002, the APA added the infamous standard 1.02 to its code. This standard allows psychologists to ignore the other provisions of the code when it conflicts with “law, regulations, or other governing legal authority.”

With its echoes of the universally reviled Nuremberg Defense – “I was just following orders” – of the Nazi doctors and others tried for war crimes after World War II, this standard has been deeply disturbing to many APA members and others. This code is binding upon all APA members and upon most licensed psychologists in the country as most, perhaps all, states require those receiving licenses to adhere to the APA code. Standard 1.02 built a loophole into the ethics code that allowed any unethical behavior by those following military or other governmental orders.

Interestingly, in an unenforceable aspirational section of the ethics code, the wording is different: “If the conflict is unresolvable via such means, psychologists may adhere to the requirements of the law, regulations, or other governing authority in keeping with basic principles of human rights.” [Emphasis added.]

After World War II, as the allies planned the prosecution of Germans for crimes committed during the war, they anticipated the possibility that defendants would use the defense that they were “just following orders” and were thus not morally culpable for their actions. The rules governing the Nuremberg trials stated:

“The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.”

This defense of following orders has been known ever since as the “Nuremberg defense” and has been regularly rejected in both U.S. and international law. In fact, the very term “Nuremberg defense” is often derided as the attempt of scoundrels to avoid moral and criminal responsibility.

In the wake of reports of psychologists aiding the Bush regime program of torture and detainee abuse, having the Nuremberg Defense in the APA’s ethics code took on added significance. Potentially, it could allow psychologists involved in detainee abuse or torture to escape future liability for these abuses before the APA or state ethics committees. Further, since violating professional ethics could be introduced as evidence in the unlikely possibility of future war crimes trials, 1.02 could provide some protection in potential future trials.

Human rights advocates within the APA have experienced revulsion at an ethics code that is effectively gutted by including the Nuremberg Defense. As Ken Pope, a former Chair of the APA Ethics Committee who has since resigned from the association wrote in a statement sent to thousands of psychologists:

“Nuremberg’s message of inescapable ethical responsibility and accountability came at an unfathomable price. It should never be set aside and forgotten, especially in a profession’s formal statement of its ethical values.”

READ THE REST: Psyche, Science, and Society Blog of Stephen Soldz: Psychoanalyst, Psychologist, Researcher here

During the Doctors Trial, American medical expert Dr. Leo Alexander points to scars on the leg of Jadwiga Dzido. The scars were the result of medical experiments on Dzido when she was imprisoned at the Ravensbrueck concentration camp. (Dec. 22, 1946 photo. United States Holocaust Memorial Museum Photo Archives)

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