The Faculty Lounge

On the 71st Anniversary of Kristallnacht

Seventy-one years ago today, my grandfather Felix Müller was dragged from his home in Frankfurt to the Buchenwald concentration camp.  His brother, my great-uncle Leopold, was arrested at his home in Bad Kissingen and locked up in the local jail.  It was "Kristallnacht," the night of mass action against German Jews ostensibly to punish them for a Jew's having shot and killed a German consular official in Paris.

A few years ago, I found my great-uncle's Gestapo file in an archive in Würzburg, Germany.  It included this record of his November 10 arrest.

We tend to remember Kristallnacht as a moment in the larger episode we call "the Holocaust," and therefore can't help but see it as one step in a larger genocidal plan.  But that's not what it was at the time.  At the time, it was an act of reprisal against an internal enemy for that group's supposed collective responsibility for one individual's murder of a government officer.

It's worth noting that in today's New York Times, David Brooks takes the country to task for our "patronizing" speculation in recent days that Fort Hood shooter Nidal Malik Hasan might be something other than the evil jihadi Brooks understands him to be.  Says Brooks:  "If public commentary wasn’t carefully policed, the assumption seemed to be, then the great mass of unwashed yahoos in Middle America would go off on a racist rampage."  This rush from (rather than to) judgment "wasn’t the reaction of a morally or politically serious nation," he argues.

On this seventy-first anniversary of the Kristallnacht pogroms, I beg to disagree. 

"Blame it on the Muslims . . . no, wait, it's the Jews." Actually, the problem is the prosecutor.

Remember back in 2006 when a Dutch newspaper published a cartoon of the prophet Muhammad wearing a turban shaped like a bomb that was about to explode?  Neither the cartoonist nor the newspaper were investigted for inciting hatred under Denmark's restrictive hate-speech laws, and two years later when police discovered a plot to kill the artist, the newspaper went ahead and reprinted the cartoons in an homage to free speech and "gesture of solidarity" with the cartoonist. 

And remember 'Fitna,' the rabidly anti-Islamic cinematic nightmare by Dutch lawmaker and right-wing radicalist Geert Wilders - the guy who called Islam a Nazi religion and the Quran an instrument of fascism?  The prosecutor declined to open an investigation until a public outcry (and court order) forced him to reconsider whether Wilders violated laws against inciting religious hatred.  Charges were filed but ultimately dropped when the prosecutor concluded that Wilder directed his rants toward Muhammad alone, but not to Muslims as a group.  (whatever.)

But now prosecutors are charging the Dutch affiliate of the Arab-European League with inciting hatred in a cartoon that suggests that the holocaust was a hoax.  Immediately after the cartoon appeared on the group's website in August, the prosecutor gave them two weeks to take it down, or face criminal charges.  The AEL complied initially, but reposted the cartoon once charges against Wilders were dropped.  

A spokesperson for the AEL said the cartoon was not meant to incite hatred and did not reflect its actual views about the holocaust.  Their goal, apparently, was to highlight the prosecutor's double-standard, and the  'incomprehensible' decision to threaten prosecution against AEL while dropping charges against Wilders.  Neither of the cartoons, he said, should lead to prosecution.

Still, prosecutors are forging ahead with charges that carry a year long prison sentence and $6700 fine.  The justification: although the Muhammad cartoons "can be offensive . . . the Holocaust cartoon crosses the line."     

It's hard to get your mind around the level of hatred wrapped up in these events.  But leaving aside the arguments for or against hate-speech laws generally, one does have to wonder what measure prosecutors are using to distinguish cartoons that are merely 'offensive' from ones that will land you in jail.

-Kathleen A. Bergin

Computer Terrorism and the Laws of War

A colleague of mine today raised an interesting question to which I don't know the answer.  He wondered if anyone was writing on the parallels between cyber-terrorism and the laws of war.  He was thinking specifically about situations where a remote cyber-attack effectively brings down the infrastructure in a target country (eg hospitals, schools etc).  Does anyone know of any work that brings together the fields of, say, International Humanitarian Law on the one hand, and Cybercrime on the other?

Lockerbie Bomber Released From Scottish Jail

The Scots have caused what is starting to amount to an international storm by releasing Abdelbaset Ali al-Megrahi, the only person convicted in the destruction of Pan Am Flight 103 over Lockerbie, Scotland in 1988. According to the initial BBC Web report:

The Lockerbie bomber has left Scotland on board a plane bound for Libya after being freed from prison on compassionate grounds.

Abdelbaset Ali al-Megrahi, 57, was jailed in 2001 for the atrocity which claimed 270 lives in 1988.

The decision to release Megrahi, who has terminal prostate cancer, was made by the Scottish Government.

There is more coverage, including a report that Megrahi still maintains his innocence, and another more recent BBC story raising questions about the release. Reactions have generally not been supportive (including those of the  white house and the US Attorney General) of the Scottish Executive's decision. That said, the decision reflects a fundamental distinction between European and American attitudes on punishment and incarceration, including the death penalty. As a death penalty opponent, I often find myself more in line with European sentiment on criminal punishment.

That said, I don't personally support the decision to release Megrahi. While I can understand that questions of compassion might dictate the release of a killer or other criminal prior to a full term of incarceration being served, and I prefer the European approach to the U.S. "punish, punish, punish and punish some more" mentality, I don't think that dying of a natural disease (or old age) in prison is in and of itself an end that society needs to go to great lengths to avoid. I have not studied nor thought deeply of these issues before now, but on first reflection, I think the questions that need to be asked in such a situation are:

1. whether there are reasonable arguments that compassion serves to mitigate against the convicted person serving the entirety of their sentence; if so, then
2. whether the person convicted has served such an amount of time, considering the seriousness of their crime and its effects on victims and society (including the victim's families and others who knew them), and given the totality of the circumstances, that a reasonable argument can be made that the crime has been "paid for" in some sense; if so, then
3. whether there is any reasonable possibility that the convicted person may engage in further crimes once released.

Here, I don't think that the case can come anywhere close to meeting the second part of the test. I  cannot personally think of anyone I know who would think that an eight year sentence is sufficient to even begin paying for the damage caused by the 270 lives intentionally killed by Megrahi (and others). So, it would not satisfy step two, even if it satisfies step one. The facts aren't all out yet, but the extent to which the Scottish Executive considered the issues raised in number two isn't at all clear from what I have read.

I did have a friend, Lynne Hartunian, who died on Pan Am 103 (a classmate at the State University of New York College at Oswego), so perhaps I am not sufficiently object to make any kind of objective case here. But trying to look past my own emotions, and those of my friends, I'm still not sure I fully understand what the Scots were thinking.

A New Meaning to Security Screening

Cleveland Hopkins International Airport is trialling "whole body" security scanners for the first time, according to last week's Cleveland Plain Dealer.  The new scanners see right through travellers' clothes and pick up security threats that metal detectors can miss, such as liquid explosives.  The machines use radio waves or weak x-rays to take full body scans of passengers, raising significant privacy concerns.  The airport is adopting a protocol where the person reading the scan never sees the actual passenger in an attempt to protect privacy to some degree.

What struck me as particularly interesting was the following paragraph from Jim Nichols' report in the Plain Dealer:

"The machines will replace metal detectors in two of the airport's dozen security-screening lanes as "primary" screening devices. Each passenger in a security line will be assigned to the next open lane, meaning they'll effectively be sent at random to either a full-body imager or an X-ray machine. (At 15 other airports, they're "secondary" screeners: Only passengers who set off metal detectors go through the full-body scanners, unless they opt for a pat-down.)"

Is there something wrong with Cleveland's approach?  It seems that in Cleveland, you have to take the more intrusive option (full scale pat-down) if you object to the initial full body scan, while in other airports you only face either of the intrusive options (pat-down or full scan)  if you set off the metal detector in the first place.  Does Cleveland Airport's approach raise more of a civil liberties issue than other airports?

 

Global Free Speech Update

Ethiopia:  Deputy Secretary of State Jacob Lew expressed concern to Prime Minister Meles during a trip to Ethiopia about a proposed anti-terrorism law that reportedly would define criticism of the government as a "terrorist act."  Good Lord, what kind of government does that?

France:  What to do about illegal downloads?  A proposal that would have punished illegal file-sharers by blocking their access to the internet was rejected recently by the Constitutional Council.  From reports on the decision, it appears that the problem with the law was not the interference with internet access itself, but the authority conferred upon administrative agents, as opposed to a judge, to suspend service.  

Italy:  Careful what you write about.  If a new media law is passed, journalists in Italy could serve 3 years in prison and face hefty fines for writing about an on-going police investigation, publishing a related document or disclosing the contents of a leaked wire-tap.  Could be worse, though.  Publish this stuff in the Czec Republic and you could get 5 years under a law passed last February.  

Kazakhstan:  Activists are criticizing a move to categorize blogs, chat rooms and social networking sites as forms of "mass media" under a new law that would place them under arbitrary government control.  The country already lacks a free and open internet, and bloggers have been prosecuted for anti-government criticism.  President Nursultan Nazarbayev faces pressure from the OSCE to nullify the measure and align the country's laws on freedom of the press with regional standards.  Kazakhstan becomes the organization's chair in six months.

Turkey:  Laws against insulting religion, the military, and the Turkish state continue to be used as a basis for politically motivated prosecutions despite reforms to the penal code undertaken last year. By one estimate more than 70 such cases are pending.  Though imprisonment and convictions are rare, the threat of prosecution itself has a profound chilling effect on speech.  Most recently, author Nedim Gursel was charged with insulting religion in his book, The Daughters of Allah.  Charges were dismissed last week after lawyers uncovered evidence that the complainant probably never read the book.      

-Kathleen Bergin

Conservative Radio Host Gets Waterboarded, Lasts Six Seconds, Changes Position on "It's Not Torture"

Bad Analysis vs. Bad-Faith Analysis

The Associated Press is reporting that President Obama might be open to prosecuting the lawyers who wrote the memos authorizing torture.  Brian Tamanaha has also posted a very interesting take on the memos, entitled "How We Know that the OLC Torture Memos were Not Issued in 'Good Faith.'" Tamanaha writes that the OLC's unquestioning acceptance of the CIA's assessment of the detainees' suffering demonstrates bad faith: "This is manifestly bad faith analysis because, as these statements make clear, the OLC lawyers had no independent factual basis for rendering their legal opinion. The OLC legal opinion, to put it more bluntly, is grounded entirely upon the self-severing assertions of individuals potentially subject to criminal liability."

 

But does bad analysis--even really, really, bad, self-serving analysis that results in untold suffering--necessarily equate to bad faith?  In a recent article, I argue that cognitive bias and associated blind spots may better explain such lapses.  The memo authors' reliance on the CIA's own self-serving assessment seems to fit in with classic bias blind spot research.  If the memo authors were truly trying to provide legal cover for a pre-ordained result, they did an amazingly bad job of it--one would expect a truly bad-faith author to manufacture the appearance of more reliable data, not to openly rely on self-serving assessments.  It seems more likely that the authors were simply blind to how the rest of the world would view their analysis, and never thought to question the reliability of the CIA's assessment.

 

So how could such bad analysis have been offered in good faith?  My article argues that John Yoo, in particular, was pre-disposed to suffer from certain cognitive biases.  First, he had a very strong political identity that correlated with the Bush administration's objectives.  His partisan feelings may have blinded him to the types of criticism his conclusions would face outside the echo chamber.  In addition, he had significant policymaking responsibility inside the administration, and I argue that the policy role may have led him to place a decreased emphasis on legal analysis--essentially, I think he was trying to write a legal memo while wearing a policy hat.  As a more general matter, I think the Bush administration was very poorly served by trying to hire "true believers" to provide legal counsel.  It is a tough balance for clients, because they want a lawyer who is loyal, but they need a lawyer who can accurately predict how outsiders will assess a case.  Hiring a lawyer with the same worldview as the client suggests that lawyer and client may share the same blind spots as well, to the detriment of both.

Waterboarding As A Form Of Punishment, Not Investigation

We learn now that Khalid Sheikh Mohammed, the apparent mastermind of 9/11,  was waterboarded 183 times.  Abu Zubaydah was waterboarded 35 times.  And I can 't help but wonder why we continue to think these acts were interrogation techniques.   Perhaps there are rare situations where a) a person has such important information; b) that person is so resistant to providing the information; and c) exigency is sufficiently high that a country might decide to abandon widely accepted values to protect thousands, or millions, of citizens.  Perhaps.  But if waterboarding really works in these situations, wouldn't you expect it to work quickly?  Is there really  data out there - or even something that feels more reliable than random chance - that a regimen of 35 or 183 immersions via waterboard  is likely to produce useful information that would be unavailable on fewer tries? (I hate to think of the regime that could conduct such empirical research.  And now, it appears, we have become one.)  

What makes more sense is that some folks involved in interrogation were sufficiently confident of the guilt of these fellows, and outraged at their actions, that they thought a little bonus torture was rightful and appropriate.  Perhaps they believed that Mohammed  might never receive any genuine corporeal punishment for his crimes - either because he might never be convicted of anything or because American punishment so clearly seems to reject pain as a legitimate instrument of punishment.  (Gosh, in our modern world, even the death penalty is now (usually) anesthetized.)  Given this practical reality, they may have chosen to employ brutal corporeal punishment in the one place they could - the investigatory process.  I've met a lot of people since that fateful September day that would have paid good money to waterboard these fellows. And not to garner more useful intelligence.

The demise of publicly sanctioned corporeal punishment - beatings, whippings, stonings, brutal executions - leaves certain people unsatisfied with state punishment.  We know what can happen when you beat or shoot a cop.  You may be physically battered by officers prior to arraignment.  (And probably charged with resisting arrest.)    Even fleeing suspects are sometimes physically punished for their decision to run.   Can we be surprised if some people believed that there was no better target for this street justice than people involved in the mass killing of Americans?

I would not be at all surprised if the actual investigators employing these techniques, and the people authorizing them, understood waterboards to be just deserts for 9/11.  That is not to say that Bybee, Yoo, and Bradbury approved these approaches for that reason - even if they did, their memoranda certainly aren't expressly designed to legitimize waterboarding as punishment for terrorist acts.  Perhaps these young lawyers were naifs.   But it is to say that when brutal investigative techniques are approved, it is fair to assume that some folks will use them for their investigative value...and others will use them for their brutality.

Image: Judge Jay Bybee, author of one of the famous "torture memos."