Settlement sought in Hoffman Report suit

By James Bradshaw, Senior Editor
February 4, 2020

Settlement sought in Hoffman Report suitAmerican Psychological Association (APA) officials are “hopeful” a lawsuit sparked by the Hoffman Report can be settled soon but declined further comment.

“Because the case is still in litigation, it would not be appropriate for us to comment at this time,” Kim Mills, APA’s interim senior communications advisor, told The National Psychologist in December. “We remain hopeful that the case will be resolved soon.”

The Report, prepared by Chicago lawyer David Hoffman and his firm, Sidney Austin LLP, was commissioned by the APA in 2014 to combat reports that the association had supported unethical conduct by military psychologists in the torture/interrogation of terrorists held at detention centers in Guantanamo Bay, Cuba, and Abu Ghraib, Iraq.

Initially, APA officials billed Hoffman’s hiring as seeking an independent, let-the-chips-fall-where-they-may investigation.

But when the Report was released in 2015, it read like an indictment, focusing on the APA’s adoption of the 2005 PENS Report (Psychological Ethics and National Security) that allowed psychologists to continue working at the centers after the American Psychiatric Association banned its psychiatrist members from such work.

Military psychologists defended working at the centers on grounds they could monitor interrogations and police abusive and torturous methods. Those arguments were ignored in the Hoffman Report and any exculpatory information obtained in interviews was omitted from the finished product.

Two psychologists – James Mitchell, Ph.D., and John “Bruce” Jessen, Ph.D. – did contract with the CIA under President George W. Bush’s administration to develop “enhanced” interrogation techniques later equated with torture, but they were not members of APA and therefore not subject to its ethics standards.

As a result, the condemnation of the Report fell on APA member military psychologists who were not part of developing torture tactics but served in capacities related to detention centers – Larry James, Ph.D., of Ohio; L. Morgan Banks III, Ph.D., of North Carolina, and Debra Dunivin, Ph.D., of Washington, D.C.

The Report also drew into question the actions of the APA’s then ethics director, Stephen Behnke, Ph.D., and Russell Newman, Ph.D., J.D.

Newman was APA’s executive director for practice during the consideration and adoption of the PENS Report. He is married to Dunivin, who at the time worked for the Department of Defense.
In the wake of the report, Behnke was fired, two other staffers were forced to resign and a fourth was pressured into early retirement.

Despite complaints that the Report was one-sided, APA officials appeared to revel in the opportunity to clear the public perception of condoning torture and celebrated resetting its “moral compass” at the 2015 annual convention in Toronto.

A number of lawsuits were threatened, but the principle action came from James, Banks and Dunivin, the three military psychologists named in the Report, and Behnke and Newman.

The action was initially filed in early 2017 as a defamation suit against APA and Hoffman’s law firm in Montgomery County, Ohio, the home of Wright State University where James became director of the Psychology Department after retiring from the Army as a colonel.

A judge there dismissed the case, saying it was not within the court’s jurisdiction, and it was refiled in August of 2017 in the Superior Court of Washington, D.C. The APA is headquartered in Washington, D.C.

Whether the case is settled out of court or goes to trial, it is certain to increase APA’s expenses connected with the Hoffman Report, already estimated as approaching $8 million.

The law firm almost got a second commission as a result of complaints that the report was biased against military psychologists.

Despite member objections, APA officials approved hiring Hoffman’s firm to investigate the fairness of its own work. That contract was never fulfilled and the offer was withdrawn in view of pending litigation

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