Friday, December 12, 2008

Books on torture and detainee policy

Here are some of my favorite books that cover both the theory (legal and philosophical) and practice of our post 9/11 detainee policy.

Clive Stafford Smith’s “Eight O’Clock Ferry to the Windward Side” is a riveting narrative of his experiences as a lawyer for prisoners at Guantanamo Bay, Cuba. Smith discusses the ordeals of his client, Binyam Mohamed, at the hands of the Moroccan secret service and at Bagram AFB in Afghanistan, as well as his understandable response to the surreal sham legal proceedings faced by detainees. Smith’s book is complementary to Joseph Margulies’ seminal “Guantanamo and the Abuse of Presidential Power.” Margulies lucidly and compassionately delineates the legal issues Guantanamo has set before us, whereas Smith focuses on the human cost of holding prisoners in what was intended to be the legal equivalent of outer space. Powerfully and persuasively argued, shocking and shaming, it is indispensable to any student of our foreign policy as it pertains to detainees. Unreservedly recommended.

“Torture and the Ticking Bomb” by Bob Brecher is a philosopher’s attempt to analyze the moral dilemma posed if an interrogator were confronted with a terrorist who knew the location of a bomb that will kill civilians but would not divulge it. One of the highest profile persons to argue that torture should be legal in this case is Alan Dershowitz, who does so on his interpretation of utilitarian principles. Dr. Brecher’s book is a thorough and thoughtful refutation of Dershowitz’s position on the basis of utilitarianism. Dr. Brecher begins his book by debunking the premises of the time bomb scenario, but he goes further. For example, Dr. Brecher points out that one cannot exclude torturing the terrorist’s children on utilitarian grounds, thus highlighting an inconsistency in the pro-legalization argument. Dr. Brecher also finds it telling that its advocates have not written draft legislation that would provide for Dershowitz’s torture warrants. Dr. Brecher goes on to discuss Jean Amery’s torture to delineate what it means to break someone, and these are among the most moving passages in his book. “Torture and the Ticking Bomb” is brief, and the arguments, while complex, are probably within the grasp of an undergraduate student in philosophy. This book is a powerful expose of an intellectually slipshod argument, too often justified by facile invocation of Jack Bauer’s fictitious exploits. Enthusiastically recommended.

“The Guantanamo Files” by Andy Worthington is an attempt to record the histories of a number of the detainees at the Naval base at Guantanamo, Cuba. One aspect of this book that is especially valuable is his narrative of how many came to be arrested in Pakistan and elsewhere. His discussion of the dark prison, where detainees are shackled to walls and not allowed to see sunlight is particularly disturbing. Worthington also describes how the Extreme Reaction Force brutalized a mentally ill detainee at Guantanamo. Others have recounted how this riot squad beat an American soldier who volunteered to play the role of a recalcitrant detainee so badly that the soldier had to be medically discharged from the armed services. “The Guantanamo Files” is (unfortunately) a highly useful addition to the literature on the treatment of detainees within the context of the war on terror.

“A Question of Torture” by Alfred W. McCoy is a valuable addition to the literature on the subject as it relates to the present detention policy of the United States. Professor McCoy teaches history at the University of Wisconsin-Madison, and his knowledge of Southeast Asia tends to frame his presentation. McCoy discusses the torture of Viet Cong as part of the CIA-directed Operation Phoenix, as well as other instances of twentieth century torture by the British and French. He makes a key connection, namely that torture often leads to extrajudicial killings, because neither trial nor release may be acceptable outcomes to the nation responsible for the torture. He also takes the position that the law has failed to keep pace with advances in what is sometimes called touchless torture (stress positions, sleep disturbance, extremes of heat and cold, sensory deprivation, etc.), despite its recent widespread practice. His book is most engrossing when it recounts contemporary events in Guantanamo, Abu Ghraib, Bagram, and elsewhere. Although McCoy has a tendency to mix in editorializing with scholarly research, his book is well worth reading.

“Beyond the Law” by Jordan J. Paust is a critique of the Bush administration’s War on Terror from the perspective of a scholar of international law. Professor Paust discusses how only the expressed will of congress can override an international treaty in the context of showing the many ways in which the administration’s policies are in conflict with international law. However, from this nonlawyer’s perspective, one of the most illuminating and useful portions of this book is its clarification of the various terms for our detainees, such as “enemy combatant.” Moreover, Professor Paust also takes to task Jon Yoo and the other administration lawyers who argued for unchecked executive power to combat terrorism. “Beyond the Law” is written with legal scholars as the primary audience; however, nonspecialists can find the book a rewarding, if uphill, journey.

“Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy” by Charlie Savage considers the relative balance of power between the executive versus the other two branches of our federal government, as well as the struggle between political appointees and career government servants within the executive branch. Mr. Savage won a Pulitzer prize for his coverage of presidential signing statements, and how the Bush presidency has expanded their scope. Takeover charts the intellectual underpinnings of enhanced executive branch power to young lawyers in the Reagan administration, among them John Roberts and Samuel Alito, both of whom presently are members of the Supreme Court. Mr. Savage examines the torture debate from several points of view, including the Judge Advocates General of the armed forces. He also relates the conflict between Harold Koh, Dean of the Yale School of Law, and his former pupil, John Yoo, then in the Office of Legal Counsel at the Department of Justice, over the memos governing torture and the Geneva Conventions. While at OLC, Professor Yoo played the president’s commander-in-chief of the armed forces card as if it were an ace that could never be trumped. Takover also recounts the story of how the state secrets privilege, a rule by which the government excludes certain evidence in a legal proceeding, grew out of a falsehood. The report on the crash of an Air Force B-29 was kept out of the courts, but fifty years later, the daughter of a crash victim learned that the report no real secrets but would have embarrassed the armed forces. Mr. Savage is rarely satisfied with conventional wisdom; his discussions generally go to the kernel most topics. His prose is crisp, making Takeover easy to read without being superficial. This book is essential reading to anyone interested in the political philosophies that shape current events.

“The Dark Side” by investigative journalist Jane Mayer is the most comprehensive book on the treatment of our detainees in the War on Terror that has yet appeared. Ms. Mayer explores at length how America’s survival, evasion, resistance, escape (SERE) program for torture-resistance was co-opted into a blueprint for how we would use interrogational torture. She discusses extraordinary rendition, sending prisoners to other countries with interrogational methods even harsher than our own. Her investigation paints a more sympathetic portrait of John Walker Lindh, the “American Taliban,” who was reviled as a traitor in the aftermath of 9/11 and who was tortured and denied access to the lawyer his parent had hired. “The Dark Side” gives specific examples of how our methods have destroyed minds and led to the deaths of detainees. In one of the most chilling passages, Ms. Mayer describes Vice President Cheney reading approvingly about Operation Phoenix, the Viet Nam-era program that led to thousands of extrajudicial killings. She explains how important the Office of Legal Counsel (a branch of the Justice Department) is in deciding what is or is not lawful. This gives context to Jack Goldsmith’s dilemma in whether or not to withdraw an infamous memo drafted under the supervision of a previous head of the OLC. Ms. Mayer’s book is deeply troubling to those who admire America’s extremely longstanding commitments to the rights of prisoners of war and to human rights more generally. One of the best books of 2008.

“Top Secret” by University of Chicago law professor Geoffrey R. Stone covers the subject of how to balance the need of government to keep certain secrets with the public’s need for transparency and accountability. Stone makes a strong case for a journalist-source privilege, similar to the attorney-client privilege, and his discussion of these zones of privacy alone is worth the price of the book. His arguments are sometimes densely written, but clear and balanced, and the reader who takes the time to ponder them is generously rewarded. “Top Secret” should prove valuable to legal scholars, journalists, and political scientists, especially in the post 9/11 era.

Tuesday, December 9, 2008

Wolves in Blazers and Khakis? In defense of the Duke lacrosse teams, I

In the spring and summer of 2006 many journalists wrote pieces that were heavily critical of the Duke lacrosse teams. Few managed the level of disdain that Marc Fisher did in his column “Wolves in Blazers and Khakis” (13 July 2006) in the Washington Post
( My impressions of the case are based on a number of news articles that appeared at the time, and the book, "Until Proven Innocent."

Mr. Fisher covered Collin Finnerty’s trial over an incident in Georgetown the previous November between a group of athletes including Collin versus Scott Herndon and Jeffrey Bloxham. Collin was convicted of assault: throwing fake punches and directing possibly homophobic insults at Jeffrey Bloxham. On the other hand, he never threw real punches and his friends indicated that he was the first person to get punched, an assertion that is consistent with a photograph shown by one of his lawyers.

We are all agreed that even assault should be illegal, though it is less serious than assault and battery. Likewise, using vulgar taunts is unacceptable behavior, yet it seems far-fetched that Collin and his friends were doing so in the absence of in-kind behavior from Scott and Jeffrey. Collin and his friends were probably drinking underage. I doubt that the incident was anyone’s finest hour. However, Mr. Fisher goes much, much further in his analysis of an incident that he says is common in Georgetown.

Mr. Fisher concludes that the complaining witnesses were entirely truthful in their testimony and implies that Collin’s friends perjured themselves in theirs. Claims of Collin’s excellent character are “proud, even arrogant,” but Mr. Fisher does not say that the priest (also family friend) and Michael Hannan, the father of Collin’s girlfriend, lied, only that they fail to apprehend Collin’s true nature.

Marc Fisher claims that Collin Finnerty and his friends behave decently while sober but appallingly while drunk. In the Georgetown incident, there is evidence that is superficially consistent with his hypothesis but not nearly enough to demand it. We don’t know how much the members of either of the two groups of friends had been drinking. Moreover, based his own testimony about an unrelated incident, Scott Herndon may be aggressive when he has been drinking. And Scott and Jeffrey might have perjured themselves, as discussed by Stuart Taylor and KC Johnson in “Until Proven Innocent.” Scott’s and Jeffrey’s accounts, in which they portray themselves as peace-loving victims, are not worth the trouble of laughing at. Why Mr. Fisher swallows them hook, line, and sinker in the absence of disinterested witnesses is beyond me, especially when the authorities implied that both parties were yelling at each other. It seems much more reasonable to assign blame for this minor scuffle equally to both parties.

But Mr. Fisher goes a step further than saying that Collin gets out of control when drunk. Mr. Fisher implies that he and his friends are putting on an act for their elders then showing their true selves only to one another. And that is the connection to the Duke rape case: “a raucous party at which a bunch of drunken kids verbally abused a hired performer,” an incident that was “entirely within character for these kids and the friend they tried to talk out of trouble.” He offers not one scintilla of evidence for his conjecture about Collin and his friends putting on an act. Moreover, his characterization of the party serves his thesis more than it resembles reality: the party was not raucus, and there was only one racial epithet uttered by a lacrosse player (not Collin) after being provoked by an in-kind remark by the stripper who was not the accuser, Kim Roberts.

Mr Fisher’s position leads him to discount what I see as compelling character testimony. Surely there is no tougher critic than the father of one’s girlfriend even in the best of times. After being indicted for rape, Collin was suspended and then put on academic leave at Duke, on top of being tried for the Georgetown incident. If Mr. Hannan had any doubts whatsoever about Collin’s character, Mr. Hannan would surely have forbidden his daughter from seeing him. Instead, Mr. Hannan took time off from his other responsibilities to defend the young man under oath.

Mr. Fisher is contemptuous of the lawyers and their yellow pads arrayed in Collin’s defense, as well as Collin’s blazers and khakis, and his and his friends’ “Yes, Sir’s.” This ignores two points. First, anyone with a modicum of common sense going to court will present himself well. Second, if I were in the shoes of Kevin Finnerty, Collin’s father, I would be looking at the Georgetown case through the lens of a possible thirty-year prison sentence for rape; therefore, my strategy in the former case would be governed by the need not to lose the latter one. Perhaps this explains the lawyers and the character witnesses, as well as the fact that Collin did not testify himself.

His classmates and a teacher have spoken up for Collin, as found in “Until Proven Innocent” (pp. 12-14). Nader Baydoun and R. Stephanie Good’s “A Rush to Injustice” recounts Duke student Emma Stevenson and her friends discussing the rape case just prior to indictments (pp. 155-156). “They joked that Nifong would probably indict someone as unlikely as Collin Finnerty because Collin was one of the nicest guys on the team and one of the least likely to hurt anyone.” Reporting several months later, Peter Applebome wrote about the time immediately after the names of the first two indicted players were announced (, “Nona Farahnik, who lived in the same dormitory as Mr. Finnerty and Mr. Seligmann, said, ‘When they said it was Reade and Collin, everyone knew it didn't happen.’” Since these testimonials come mainly from his male and female classmates, they undercut Mr. Fisher’s thesis.

Articles by Sharon Swanson ( and Joan Collins ( consistently describe Collin as mild-mannered. Collin’s parents stood by him unreservedly (; his father said, "In some ways, I'd say Collin is a much better man than I could ever hope to be." Although one might argue that the support of one’s parents should be treated with gentle skepticism, it surely should not be ignored entirely. Collin’s neighbors asked him to baby-sit prior to his indictment and indicated they would be happy if he did so again ( His coach at Chaminade High School made Collin an assistant during the time the rape charge was still pending and later praised his performance in that capacity ( If one reads Collin’s freshman essay on cloning (, he or she may begin to doubt and ultimately to reject Mr. Fisher’s portrait of Collin as a wolf. Finally, along with this ample evidence to his good character, doesn’t Collin’s empathetic reaction to the case of Eric Volz (, speaks more clearly and forcefully about who he really is than the insignificant incident in Georgetown?

Mr. Fisher does not seem to think so. His response to my bringing up the Volz case and the interest that the Duke Three have shown in Innocence Project ( was, “I'm glad to hear that the indicted students are taking an interest in the rights of the accused, and as I've said from the very beginning of this matter, the appalling rush to judgment in the phony rape case reveals a mindset that deserves far more rigorous attention, especially on college campuses. But in the case of the Georgetown incident, I covered that trial and there was very little that was unclear--it seemed plain that the accused behaved deplorably. To my mind both then and now, they deserved a far more serious punishment than they received.”

The judge must have felt otherwise, since he set aside Collin’s conviction near the end of 2006. One could dismiss Mr. Fisher as one of many superficial, self-impressed journalists, who, lacking heart or brain, declared a “free-fire zone” (Peter Applebome’s apt phrase) on the lacrosse players. Yet, the puzzle deepened for me when I started reading Mr. Fisher’s other columns: a compassionate interview with Alan Keyes’ daughter, a lamentation about an inner city youth choir program that was in jeopardy, a bittersweet retrospective on Leonard Slatkin’s tenure as music director in Washington, DC. Mr. Fisher wrote “one incident often does make a gentleman's character.” But I would like to give Mr. Fisher the benefit of the doubt that he did not give Collin. One sour piece of fruit does not condemn the whole tree.

Update (August 10, 2009): I added another link, this one in the third paragraph from the end.

Monday, December 8, 2008

The Wilmington Journal versus Julia Boseman

Two items in a recent issue (23 October 2008) of the Wilmington Journal attacked State Senator Julia Boseman. Cash Michaels (“Boseman spins untruths about her record on Black Issues”) said that a Boseman campaign flier was misleading. The flier states that Boseman was “fighting for $4 million to help victims of predatory lending.” Mr. Michaels argued that although the legislation had not yet made it out of committee, Senator Boseman’s flier made it sound as if the bill had passed. Having seen this flier myself, I can say that it is Mr. Michaels’ argument that is dishonest. Worse still, the article quotes Reverend William Barber, president of the NCNAACP, as describing former state representative Thomas Wright as a “fallen colleague.” Wright has been convicted of fraud and obstruction of justice.

However, Dawuud El-Amin’s “ An open letter to Thomas E. Wright” in the same issue makes a more outlandish statement. After noting Wright’s conviction and sentence of seven years, Mr. El-Amin indicated that the sentence was unusually long for this crime. Wright said “I guess the hidden hand got mad, when you didn’t take that deal.” He goes on to say that only after Wright supported Julia Boseman’s opponent, Al Roseman, in 2006, did Wright anger the “hidden hand” that is Julia Boseman, according to Mr. El-Amin, which then “fanned the flames” of Mr. Wright’s destruction. It is difficult to see how anyone is responsible for Mr. Wright’s fall other than himself. Sadly, there is little in either article to give one confidence in the Wilmington Journal as a reliable source for news and informed opinion.

In the interest of full disclosure, I have supported Ms. Boseman's senate campaigns.

Monday, December 1, 2008

In Memoriam, William C. Placher

About a month ago I was working my way through my UNCW colleague James Megivern’s book on theological issues concerning the death penalty. I wondered about the details of a medieval religious penance for killing or wounding during war, and so I did what countless other Wabash students and former students have done: I asked Dr. Placher. I had asked questions via email before and received thoughtful replies in about ten minutes or so. This particular question stumped even him, but he promised to poke around and see what he could find. We exchanged a few more emails and he said that he was working on a book on the Gospel according to St. Mark. I would have liked to hear more about this book…and so many other things.

Today I heard the news that Bill passed away this weekend ( Few of us are genuinely irreplaceable, but Bill was one such individual. Bill was always the epitome of a teacher-scholar to me. I wish I had one-tenth of his gentle demeanor toward students, his breadth and depth of knowledge, or even his superhuman ability to return a large stack of term papers with valuable comments the very next class after they had been turned in. I know that I cannot match the eloquent and heartfelt comments his former students have already left at this site, let alone do justice to the man himself. It takes nothing away from my other teachers to say that Bill was the best teacher I have ever had. For that reason, I would like to offer my own remembrances.

I took two classes with Bill: an introduction to early modern philosophy my freshman year and an introduction to Greek philosophy as a junior. As a freshman, I wrote a paper in which I commented about the Heisenberg uncertainty principle to the effect that despite the fact that we cannot determine a particle’s position and momentum simultaneously, the particle did not have a definite position and momentum. Bill’s response (despite a rumor that he had not taken even a single science classes at Wabash) was that physicists interpreted the Heisenberg uncertainty principle to mean that the particle did not even have definite position and momentum. A year later when I took second semester physics, I learned that Bill was right.

In the fall semester of my junior year I had loaded up with difficult classes, I had already written one paper for Bill’s class and had just finished one on Adam Smith for my class in the history of economic thought near Thanksgiving break. I had no idea how I could conjure up a second paper and was just about ready to resign myself to writing something mediocre. Yet I realized that I would be letting Bill down, and I just couldn’t do that. I changed topics from Aristotle to Plato and started my research. As was my custom, I wrote it in the guest bedroom of the Kappa Sigma house, so that the noise of my late night typing would not disturb my fraternity brothers. Bill was pleased with the final result, and that was all that I could have hoped for.

This past June I returned to Wabash for the Big Bash Weekend. For the second time in a row, I managed to pick a time when Bill was not going to be on campus. I bought several books of his at the bookstore, and I had hoped that he would sign them for me the next time I came to campus, so that I could give them to a friend of mine. I’ll still do so, but it will be a bittersweet occasion. I know of a coach who tells his players that there are only a finite number of practices in their lifetimes. I guess the same is true of trips up the stairwell in Center Hall to Bill’s office, but my heart wishes for just one more.

Wednesday, November 26, 2008

An open letter to the editor of the Wilmington Journal

Your editorial on 30 October 2008 urged your readers not to vote for Attorney General Roy Cooper, citing his handling of the Duke lacrosse case as the reason to support Cooper’s challenger, Robert Crumley:

"In our opinion, Mr. Cooper lost our vote, and our respect, when he refused to allow a trial to go forth in the Duke Lacrosse rape case, and then declared the three white suspects who allegedly raped a young black female '''innocent.'''

It is difficult to square this editorial with two of the Journal’s previous articles, a January 2007 editorial, and its review of “Until Proven Innocent” from September 2007.

The editorial on 18 January 2007 had what appears on the surface to be plain wisdom, in the format of an open letter to Cooper from “North Carolina’s African-American community, and anyone else who believes true justice comes from the gavel of a judge, not the demands of a mob; or slick, race-baiting defense attorneys.” Elsewhere, the editorial said, “The African-American community wants truth by the law, not trial by the media.” Had the Wilmington Journal voiced the latter sentiments nine months earlier, it would have been timely and refreshing. One mob in March was asking for castration of the putative rapists, and some articles took the rape as a given. But by January of 2007 it was clear that there simply was no case. There was no inculpatory DNA evidence; there was at least one unassailable alibi; and the alleged victim had made errors in the identification process.

However, your January 2007 editorial created at least one straw man. To what race-baiting were you referring? Nothing said by the attorneys or families of the Duke three even comes close; to the contrary, the parents of the players have been uncommonly forgiving toward the accuser, saying that she had had a hard life.

Your editorial also generated unfounded fears. Why you gave any credence at all to the idea that Mr. Cooper wanted to “dump this case” is beyond my ken; anyone familiar with the record of James Coman (one of the attorneys appointed to reinvestigate the case, along with Mary Winstead) would have had the opposite fear, that they would force the case to go the full fifteen rounds unnecessarily. When you asked for the interview of more witnesses, you never made clear what new information you hoped to obtain. Mr. Coman and Ms. Winstead conducted many interviews and weighed and sifted the evidence for months. They found nothing except prosecutorial overreach, and Attorney General Cooper wisely and compassionately ended the matter.

But the key point I want to address is the editorial’s warning to Attorney General Cooper. It said “After all, as a Democrat, just like Mike Nifong, you need the Black vote for any future political aspirations.” Cash Michaels’ review (6 September 2007) of “Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Case” claimed that January, 2007 editorial in the Wilmington Journal was not making a threat of political retaliation against Attorney General Roy Cooper. Mr. Michaels noted that authors Stuart Taylor and KC Johnson seemed to ignore the following sentence from the January 2007 editorial: “Darn it, we get blamed for everything, don’t we?” Mr. Michaels then chided the authors for not realizing that this sentence showed that the Wilmington Journal was merely restating “some of what was being alleged about Cooper online,” as opposed to making a threat itself.

The rest of the review is filled with poorly reasoned arguments, yet Mr. Michaels never attempts to refute one of Mr. Taylor and Professor Johnson’s key points: By withholding support of the Duke three, some leaders in the African-American community missed an opportunity to make allies with the defendants’ families and their allies: earnest, if newly minted, civil libertarians. The Duke three themselves clearly understood that their relative affluence gave them access to, not “race-baiting,” but hard-working attorneys, who had the ability to uncover wrongdoing with respect to the DNA evidence, and that not every defendant is so fortunate. Moreover, they have taken a persistent and genuine interest in the plights of others wrongly accused or convicted. This interest tells me that the three young men learned something.

That is more than we can say of the Wilmington Journal. Your editorial endorsing Mr. Crumley gives no clue what your paper found insufficient in Mr. Coman and Ms. Winstead’s investigation. But more importantly, it made good on the threat of political payback implied in the editorial of January 2007, the threat that Cash Michaels denied was present. As of September of 2007, Mr. Michaels already knew of the outcome of Attorney General Cooper’s investigation, and you had ample time to come to a conclusion about his thoroughness and fairness in this matter. Either you and Mr. Michaels had no idea what each other were thinking (which is implausible), or Mr. Michaels’ review was disingenuous.

The Duke case made me suspect how inadequate our system must be at representing the indigent and near indigent when they are defendants. The more I read and hear, the more I see that my suspicions are well founded (Tulia, Texas comes immediately to mind). As long as African-Americans lag behind the mean in income and wealth, they will suffer disproportionately, due to poor representation. Nothing would have delighted me more than to see the Wilmington Journal pick this issue up. Instead, the Duke lacrosse case stands as a missed opportunity.