“The Hoffman Report” Defamation Suit Filed Against APA and David Hoffman

On February 16, attorneys for retired Colonels and psychologists Morgan Banks, Debra Dunivin and Larry James, and also two psychologists who are former employees of the American Psychological Association (APA), Drs. Stephen Behnke and Russ Newman, filed a defamation lawsuit against the Chicago attorney David Hoffman, his law firm, and APA, alleging reckless disregard for the truth and false statements in a 2015 report called the Hoffman Report.

Mr. Hoffman was hired by APA in 2014 to review interactions between military psychologists, APA officials, and the Bush administration. Then APA president Dr. Nadine Kaslow sought to resolve ongoing accusations that APA was involved in supporting unethical behavior by military psychologists. The accusations were voiced by human rights activists and psychologists, and had been outlined in several publications, including a book by New York Times’ journalist, James Risen, Pay Any Price.

Hoffman concluded that communications of a 2005 APA members’ task force amounted to “collusion” with military psychologists and therefore with the Department of Defense. A media furor commenced following publication of the Report, splashing the issue of “torture” and APA across national news outlets. APA paid Hoffman $4.1 million for the Report, according to sources.

In the February 16 legal Complaint, a 187-page document filed in the Ohio, Court of Common Pleas, Civil Division, the attorneys for the Plaintiffs allege that the primary conclusions in the Report were not only false, but that Hoffman knew they were false. The complaint states that military psychologists, who had tried to prevent abuses in military interrogations, were painted as having worked to protect possibly abusive procedures. The Complaint alleges reckless disregard for the truth and actual malice in both how the investigation was conducted and in how Hoffman and APA handled matters following the completion and publication of the Report.

The Plaintiffs are represented by James E. Arnold of Columbus, Ohio, who is attorney for all Plaintiffs, attorney and psychologist Dr. Bonny Forrest of San Diego, California, who is attorney for Plaintiffs Banks, Dunivin, James and Newman, and Louis J. Freeh, Former FBI Director, from Washington, DC, who is an attorney for Dr. Behnke.

In the February Complaint, the attorneys describe details alleging how the expansion of the investigation was hidden, how Hoffman over-relied on the accusers and aligned with the accusers’ goals, and that Hoffman failed to consider and follow evidence that contradicted the final conclusions. The Complaint also states that the Report relied on “overstatements,” “misstatements,” and “unsupported inferences.”

The attorneys also allege that APA failed to adequately review the Report, failed to give Plaintiffs an opportunity to respond to allegations, and failed to respond to evidence of the mistakes and errors in the Report.

According to a press release also posted on February 16, Plaintiffs will seek a jury trial, for compensatory and punitive damages for reputational and economic harm.

The Times asked Dr. Forrest what was the reason the conflict had reached this level, and she referred to the joint statement, included in the press release. In that statement, the Plaintiffs write, “We have reached out repeatedly and persistently to APA’s counsel since October 2015 and to Sidley since June 2016 to try to correct the record and repair the damage caused by Hoffman’s false accusations without further damaging the APA. Those efforts have failed, and we now have no avenue left except this lawsuit.”

The press release noted, that Hoffman, “… cherry-picked evidence, ignored contradictory evidence, mischaracterized facts, and failed to follow obvious investigatory leads. Whenever facts might be open to more than one interpretation, he consistently chose the interpretation that portrayed the plaintiffs’ motives in the worst possible light. And, despite acknowledging privately to the APA that he found no evidence of the criminal behavior others alleged, he used terms such as ‘collusion,’ ‘joint enterprise’ and ‘deliberate avoidance’ that are drawn directly from the language of criminal prosecutions.”

“He was hired to write a neutral and objective report but instead assumed guilt and, like a prosecutor, set out to prove it,” commented Dr. Forrest in the press release.

In the 2015 Hoffman Report, Mr. Hoffman wrote that APA staff and officials were “intimately involved” in “behind-the-scenes coordination with the DoD.” Hoffman also concluded that the motivation for this was a “desire to curry favor with the government.” He wrote that because of this relationship with the military psychologists, APA officials essentially acted “to support the implementation by DoD of the interrogation techniques that DoD wanted to implement…”

However, the Plaintiffs’ attorneys state that the Report became a “prosecutorial brief,” and “Hoffman’s primary allegation rests on false statements about military interrogation policies in 2005, the year in which an APA task force was formulating guidelines for psychologists involved in interrogations.”

“Hoffman’s allegations have been proven false by evidence that was in his possession,” noted the attorneys for the Plaintiffs. “Despite that proof, neither Hoffman nor the APA have taken any significant steps to repair the damage he has done to the plaintiffs’ livelihoods and reputations.”

The complaint lists twelve counts: six are all plaintiffs against all defendants, four are all plaintiffs against Hoffman and his law firm, one is Behnke, Dunivin, and James against all defendants, and one is all plaintiffs against APA.

The Plaintiffs’ attorneys wrote, the “…narrative was adopted from long-standing critics of the Plaintiffs and the APA on whom Hoffman relied heavily during his investigation. Their narrative was driven by two goals: banning psychologists from any role in the interrogation process and holding psychologists ‘accountable’ for their alleged complicity in torture. Despite having been rebuffed by the Federal Bureau of Investigation (FBI), for years they had been advocating for criminal prosecutions of the Plaintiffs and others.”

The February 16 Complaint lays out arguments that Hoffman had documents in his possession and that he omitted these in his analysis and text of the Report. These documents, say the attorneys for the Plaintiffs, showed clearly that the military psychologists were working to restrict abusive procedures rather than allow abusive practices. “In fact, the then-existing military policies – some of which the military Plaintiffs helped to draft – were restrictive and were incorporated by reference into the PENS Guidelines. And the PENS participants were fully aware of the history of abusive interrogations, which were discussed in documents circulated at the PENS meetings,” the attorneys write. This evidence, which contradicted the views of the critics, was omitted or distorted, or failed to be followed-up as investigation leads, argue the attorneys in the Complaint.

The Complaint and other documents can be found at http://www.hoffmanreportapa.com/ and at The Modern Psychologist.

Among the examples given in the 187 page–document, the Complaint authors say that Hoffman distorted and omitted key pieces of the history of governmental and DoD policies governing military interrogations. Specifically, they write, he incorrectly emphasizes the outdated policies as the context for the PENS Task Force’s work.

Also, the Report consistently confuses the military policies with the CIA policies, notes the complaint, and ignores the evidence that the two approaches had “dramatically diverged,” omitting policy statements that would have clarified the differences.

And, Hoffman failed “… to describe the role the military Plaintiffs played in writing the regional policies, as well as taking other steps to prevent abuses at the sites to which they were posted.”

In reviewing circumstances, the attorneys write that as the investigation progressed, Hoffman and his team violated norms for conducting such an investigation and APA failed to exercise adequate oversight. “Hoffman obscured the investigation’s scope and the questions he began to pursue, misled the Plaintiffs about its goals, failed to warn them when the investigation had clearly become adverse to their interests, and purposely avoided following leads that would have produced facts that contradicted his narrative.”

“The investigation’s new direction was not disclosed to anyone other than the Accusers and the Special Committee,” the attorneys state. “The Plaintiffs were kept in the dark.”

The complaint alleges that the APA Board published the Report in a hasty manner and without adequate review, saying, “Within 24 hours of receiving the draft Report on June 27, 2015, the Board, on the advice of Hoffman, published it to two of the most vocal and active Accusers …”

The authors of the Complaint state that the board knew of the Accusers’ active engagement with the press during the course of the investigation, and, the Report was leaked to James Risen of The New York Times.

The APA Board immediately voted to post the full Report to the public on the APA website. The APA governing Council had less that 48 hours to review the Report and 6,000– plus pages of exhibits, including information that contradicted the Report’s conclusions, said the authors of the Complaint. “So hasty was the Board’s review and release of the Report that, as many have noted, the APA ignored its own policies that prohibit making deliberations about ethics investigations public.”

The Defendants did not give the Plaintiffs an opportunity to respond to the allegations in the Report, stated the attorneys for the Plaintiffs. For example, Dr. Behnke was immediately terminated without a notice period or without being allowed to meet with the APA board, even though he had been employed for 15 years. Plantiffs Banks, Dunivin, and Newman were “never even notified that the Report was complete or that it was about to be published.” Col. James received an online copy the day before it was released to the Council.

The Complaint lists views from others that pointed to problems in the Report and the process, but that have been ignored by APA.

“In a June 11, 2016, open letter, eight former APA presidents summarized the concerns expressed by four of the APA’s divisions and others as including ‘an apparent failure to properly vet [the Report], failure to protect the rights and reputations of those portrayed negatively, lack of due process for employees who were forced to resign, and more.’”

One of the APA’s largest divisions has passed a vote of no confidence in the Board’s actions, and another has said that the Board’s treatment of those named in the report “without a due process finding of wrongdoing is itself an unprofessional, counterproductive, and potentially unethical action.”

Despite these conflicts, APA re-hired Hoffman to review portions of the information the Plaintiffs provided, a step that ten former chairs of the Ethics Committee have stated that there is a potential conflict in re-hiring Hoffman, said the authors.

The Complaint states, “The false light in which the Plaintiffs Behnke, Dunivin, and James have been placed would be highly offensive to the reasonable person,” and has caused mental anguish, emotional distress, and “severe personal and professional humiliation and injury to their reputations in the community – reputations they have built over many years.”

[See story in Times Vol 6 No 8, “Hoffman Report Rocks Am Psychological Assn” page one.]

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