I just published an op-ed in the National Law Journal, where I suggest that John Yoo may have written his torture memos for some of the same reasons that people applied 450 volt electric shocks to a bound older man in Stanley Milgram's famous experiments. Have a look, and let me know if you agree.
Update: I recently got reprint permission. Here's the text of the op-ed:
The "Torture Memos": Lessons for all of us
Andrew Perlman / Special to The National Law Journal
May 05, 2008
It is easy to believe that John Yoo wrote his widely discredited "torture memos" because he holds radical views of presidential authority or because he has some unusual moral failing. The reality, however, may be far more ordinary and disturbing: He willfully followed the lead of White House officials who were eager to find a legal justification for torture. The banality of Yoo's compliance shouldn't excuse him in any way, but his mistakes can help us understand why attorneys might offer equally troubling legal advice in much less public settings.
We can draw some valuable insights in this regard from one of the most stunning social psychology experiments ever conducted. More than 40 years ago, Stanley Milgram found that, under the right conditions, an experimenter could successfully order more than 60% of adults to administer what they believed to be painful and dangerous electric shocks to an innocent, bound older man with a heart condition, despite the man's repeated pleas to be let go. In essence, Milgram found that people are surprisingly likely to obey authority figures under certain conditions.
Social psychologists have identified many of the conditions that tend to promote this type of wrongful obedience, including (1) a plausible legitimate reason for the wrongful conduct (Milgram's subjects were told that the experimenters were studying the learning process); (2) positive language to describe the negative behavior (Milgram's subjects were told that the shocks would help the bound person to learn); (3) rules that, on their face, seem benign; (4) the creation of a contractual obligation to help; (5) the assignment of specific roles (Milgram's subjects were "teachers"); (6) the physical separation of the victim from the person carrying out the orders; (7) the proximity of the person issuing the orders to the person following them; (8) the blurring of responsibility for the wrongful conduct; (9) the incremental nature of the requests (Milgram's subjects started shocking the "learner" at a benign 15 volts and increased the shocks by small increments); (10) the social prestige of the setting; and (11) the elimination of dissent (Milgram found that the presence of a dissenter dramatically reduced obedience). For a similar list, see Philip Zimbardo, The Lucifer Effect: Understanding How Good People Turn Evil 273-75 (2007).
Notably, the conditions that produced obedience in Milgram's experiments probably also existed at the Office of Legal Counsel (OLC) when Yoo wrote his infamous memos. The White House gave Yoo a plausible legitimate reason for the wrongful conduct — preventing future terrorist attacks (factor No. 1). Administration officials often referred to "torture" as "enhanced interrogation" (nos. 2 and 3). Yoo probably felt some obligation to help the White House, given the OLC's stated role as adviser to the president and the climate of fear regarding terrorism (No. 4). The lawyering role also insulated Yoo from feeling personally responsible for torture; he was "merely" offering a legal opinion (No. 5). In addition, the detainees were removed from him in time and place, making it easier for him to ignore the consequences of his memos (No. 6).
Yoo had to report directly to top officials at the White House, who were insistent on getting the legal opinions that they wanted (No. 7). Moreover, Yoo could have perceived that he was "simply" giving a legal opinion; he wasn't engaging in torture, nor was he advising as a policy matter that torture should occur (No. 8). And the move toward torture occurred gradually over a period of months, with increasing pressure from top officials to justify "enhanced interrogation" techniques (No. 9). The prestige of the White House (No. 10) would also have contributed to Yoo's willingness to comply, especially given Yoo's relative youth at the time. (He was in his 30s.) Finally, the White House was well-known for quashing dissent on issues of this sort, making it even more difficult for someone to express independent judgment (No. 11).
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