The Illusion of Guilt

There is a sickness in our minds, and it runs deep. It is a desire to force the facts to fit our opinions, rather than force our opinions to fit the facts. This madness is especially dangerous when the facts in question are related to crimes and justice. Our institutions have a terrible tendency to force people to appear guilty instead of determining whether or not they actually are guilty.

One area where this tendency manifests is in the way cops interrogate suspects. The Reid Technique is currently popular among American law-enforcement agencies as a way to get suspects to confess. It is a powerful technique, with a proven track record of getting people to confess to crimes that they could not possibly have committed. FalseConfessions.org describes how this can happen on this page. Here’s a typical example:

Martin Tankleff had just turned 17, when he found his mother brutally murdered and his father clinging to life after being attacked. After calling 911, he was immediately taken to police headquarters and underwent harsh interrogation by homicide investigators. He was told that his hair was found in his mother’s dead fingers and that his father awoke from his coma to identify young Martin as his attacker. Although he was never Mirandized and maintained his innocence, police finally convinced Marty that he must have blacked out. Confused and scared, Marty came to believe his interrogators that he blacked out and committed the crime. Although not one bit of forensic evidence linked Marty to the crime scene, he was convicted and sentenced to fifty years in prison. After serving close to 18 yeas, his conviction was finally overturned in 2007. (see www.Martytankleff.org)

A recent scientific study, reported here by the Star, concluded that it was extremely easy to get people to believe themselves guilty of a crime: 70 percent of participants in a study were persuaded that they were guilty of a crime, with only minimal suggestions from the researchers. To make matters worse, some of the fooled participants became so convinced of their own guilt that they could not be re-persuaded to believe themselves innocent, even when the researchers revealed the ruse! The scientists prematurely ended the study, frightened of their terrible discovery, but the techniques they used remain common practice in police departments all across America. In fact, the Reid Technique was first developed in 1942, so we have several decades’ worth of false confessions on the books. How many people have already died, wrongfully convinced of their own guilt? I can only guess.

It’s worth noting, as Brian Gallini does in this paper, that the Reid Technique was based off of polygraph techniques – the so-called “lie detector”, which happens to be based on a pack of lies. Gallini observes that the polygraph’s credibility was already in question in 1942, so the Reid technique was in trouble from the start, and yet it has become common practice, in spite of evidence that it does not work! And speaking of the polygraph, that one hasn’t gone away, either: California is now requiring paroled sex offenders to take the test. Apparently, it is too much to ask that our governments refrain from using methods that routinely incriminate innocent people.

The Reid Technique and the polygraph are not alone in the government’s arsenal of methods for conjuring up guilt. Let us not forget that our forces are fighting a War on Terror, and to fight such a war, they must sometimes use “enhanced interrogation techniques” to get critical information out of terrorist suspects. Torture, in other words. But does torture work? There is precious little evidence in its favor. There are many who claim that it is effective, but, as former FBI agent Ali Soufan notes in this op-ed, they have a track record of lying. The US Army’s own field manual on intelligence interrogation notes that “the use of force is a poor technique, as it yields unreliable results, may damage subsequent collection efforts, and can induce the source to say whatever he thinks the interrogator wants to hear”. Alas, it is that final property of torture – that it can induce someone to say whatever the interrogator wants to hear – that makes it so useful to its practitioners. When you want to force the facts to fit your opinion, waterboarding people into submission seems like a great idea. (For a good examination of this mad way of thinking, read this piece by Major Anthony Milavic.)

There is one other information-gathering technique that I wish to discuss: mass surveillance. This one stands out from the others I’ve mentioned because it’s so much less personal, and it doesn’t appear to force anyone to lie. And yet, it suffers from the same failures as torture, polygraphing, and Reid Technique: it’s terrible at getting the truth and great at creating the appearance of guilt.

In defense of the first assertion, consider this post from WashingtonsBlog, in which the author notes (among other good points) that even before the 9/11 attacks, there was plenty of mass surveillance going on, and plenty of data being gathered about the people who would eventually carry out the attacks, but none of that data was able to prevent the attack. Why not? The author quotes from this piece by Nassim Taleb: “Big data may mean more information, but it also means more false information.” Perhaps this is why the NSA’s bulk metadata collection program has failed to prevent even a single terrorist attack.

As for creating the appearance of guilt, we need look no further than the strange case of Brandon Mayfield:

But there’s another danger that Snowden didn’t mention that’s inherent in the government’s having easy access to the voluminous data we produce every day: It can imply guilt where there is none. When investigators have mountains of data on a particular target, it’s easy to see only the data points that confirm their theories — especially in counterterrorism investigations when the stakes are so high — while ignoring or downplaying the rest…

Mayfield had converted to Islam after meeting his wife, an Egyptian. He had represented one of the Portland Seven, a group of men who tried to travel to Afghanistan to fight for al Qaeda and the Taliban against U.S. and coalition forces in a child custody case. He also worshipped at the same mosque as the militants. In the aftermath of 9/11, these innocent associations and relationships, however tangential, were transformed by investigators into evidence that Mayfield wasn’t a civic-minded American, but a bloodthirsty terrorist intent on destroying the West…

FBI agents broke into Mayfield’s home and law office. They rifled through documents protected by attorney-client privilege, wiretapped his phones, analyzed his financial records and web browsing history, and went through his garbage. They followed him wherever he went. Despite all this, the FBI never found a smoking gun connecting him to Madrid. They did, however, find Internet searches of flights to Spain and learned that he once took flying lessons. To FBI agents already convinced of his guilt, this was all evidence of Mayfield’s terrorist heart…

While it may seem like there were a freakish number of coincidences here, when the FBI was confronted with evidence that demonstrated Mayfield’s innocence, they twisted it to support their original theory of his guilt. With no evidence that Mayfield had traveled internationally for years — his passport had expired, and the last record of foreign travel was during his military service in 1994 — the FBI simply concocted the theory that he must have traveled overseas as part of this terrorist conspiracy under a false identity…

Because of mistakes made by the FBI — they left shoe prints in the carpet of the Mayfields’ home and broke in one time when Mayfield’s son was home alone — Mayfield concluded he was under surveillance by federal authorities. Paranoia set in. When driving, he would look to see if someone was following him home or to the office. The FBI took his skittishness as more evidence of his guilt.

There is a saying, which some attribute to Cardinal de Richelieu: “Qu’on me donne six lignes écrites de la main du plus honnête homme, j’y trouverai de quoi le faire pendre.” Translated: “If you give me six lines written by the hand of the most honest of men, I will find something in them which will hang him.” (Hat tip to Cory Doctorow for telling me about that quote) In other words, it’s easy to make people look guilty. And if six lines aren’t enough, then collect six hundred, or maybe six million. That is what mass surveillance offers: enough noise to cherry-pick any data we want, and invent guilt in any target we choose.

This all has to stop. We have tens of thousands of people being wrongfully convicted, and millions of people being pointlessly spied on, all because our institutions refuse to admit that they can be wrong. I don’t know how to put an end to all of this, but I know we need to do it, and as soon as possible. It is time to stop supporting the illusion of guilt.

That Stinging Sensation

Thanks to Techdirt and Reason, I recently learned of a report by Human Rights Watch that describes the shenanigans that the FBI has been up to in the name of “national security”. The report, titled Illusion of Justice, doesn’t take long to get into some pretty infuriating stuff:

Indeed, in some cases the Federal Bureau of Investigation may have created terrorists out of law-abiding individuals by conducting sting operations that facilitated or invented the target’s willingness to act. According to multiple studies, nearly 50 percent of the more than 500 federal counterterrorism convictions resulted from informant-based cases; almost 30 percent of those cases were sting operations in which the informant played an active role in the underlying plot. In the case of the “Newburgh Four,” for example, a judge said the government “came up with the crime, provided the means, and removed all relevant obstacles,” and had, in the process, made a terrorist out of a man “whose buffoonery is positively Shakespearean in scope.”

And then it gets worse:

All of the high-profile domestic terrorism plots of the last decade, with four exceptions, were actually FBI sting operations—plots conducted with the direct involvement of law enforcement informants or agents, including plots that were proposed or led by informants.

In other words, in order to catch terrorists, the FBI is actively creating terrorists, sometimes out of completely helpless people, and they’re doing it at an alarming rate.

First off, this is extremely cruel. Remember that some of these people are going to prison for things they would never have done if the FBI hadn’t asked them to do so. The government deceived them and then punished them. Second, this is extremely wasteful behavior. Every resource spent creating a new criminal to catch could have been spent catching an already existing criminal, or possibly doing something else entirely. And then, of course, the FBI uses the fact that they successfully caught and convicted a terrorist as justification for continuing their operations. They continue to receive funding and wield power, so that they can go create more “terrorists” to catch. We already have too much fear-mongering about terrorism going around; creating more terrorists is piling stupidity on top of stupidity.

But I am not here today merely to chastise the FBI for creating bogeymen to frighten us. You see, the FBI is not the only one doing this sort of thing. An anonymous commenter on Techdirt pointed me to a Watchdog Report from the Journal Sentinel that describes the actions of a different agency, the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (what, no sex, drugs and rock’n’roll?). It seems that the ATF has been up to the exact same sort of shenanigans:

■ ATF agents befriended mentally disabled people to drum up business and later arrested them in at least four cities in addition to Milwaukee. In Wichita, Kan., ATF agents referred to a man with a low IQ as “slow-headed” before deciding to secretly use him as a key cog in their sting. And agents in Albuquerque, N.M., gave a brain-damaged drug addict with little knowledge of weapons a “tutorial” on machine guns, hoping he could find them one.

■ Agents in several cities opened undercover gun- and drug-buying operations in safe zones near churches and schools, allowed juveniles to come in and play video games and teens to smoke marijuana, and provided alcohol to underage youths. In Portland, attorneys for three teens who were charged said a female agent dressed provocatively, flirted with the boys and encouraged them to bring drugs and weapons to the store to sell.

■ As they did in Milwaukee, agents in other cities offered sky-high prices for guns, leading suspects to buy firearms at stores and turn around and sell them to undercover agents for a quick profit. In other stings, agents ran fake pawnshops and readily bought stolen items, such as electronics and bikes — no questions asked — spurring burglaries and theft. In Atlanta, agents bought guns that had been stolen just hours earlier, several ripped off from police cars.

Preying on helpless people, creating criminals and crime where none existed before, endangering innocent lives, and wasting resources. The FBI and the ATF are both doing it with reckless abandon. Our tax dollars at work, ladies and gentlemen. And if these two agencies are both doing it, completely independently of each other, you can bet that every other agency with enforcement powers is getting in on the act. In this article on C4SS, Kevin Carson notes that a county sheriff’s deputy (no connection to the FBI or ATF) pressured an autistic boy into buying drugs. This prompts Kevin to question the logic of stings in general:

I’ve never understood the logic by which someone in uniform can commit an act that’s defined as illegal by statute, in the course of a sting operation, without themselves breaking the law. If it’s illegal for a citizen to offer drugs or sexual acts for sale, or to solicit their sale from others, how is it legal for a cop to offer to buy or sell drugs from a citizen?

I think it’s a good question. After all, these people getting caught in the stings are just doing what they were told to do by police officers. Isn’t that what good citizens are supposed to do?

It’s time to put a stop to this. We put up with the existence of government agents and agencies only because they stop people from harming us; we cannot put up with these agents encouraging others to cause harm. If agents are allowed to create problems that they can then solve, they create a greater perceived need for their services while simultaneously doing the exact opposite of the service we expect them to do. I say that it’s time to declare sting operations illegal, and make it impossible to convict someone who was caught in a sting. Maybe then, the cops and g-men can finally go back to doing their job and protecting people, instead of tricking people and throwing helpless shmucks in jail.

Making hay in the dark

Imagine that there is a group of people, dedicated to finding needles. We’ll call them the Needle Seekers’ Association. They’re looking for loose and lost needles. After all, those things can be dangerous if you’re not expecting them! And where are you most likely to find loose needles? In haystacks, of course! So the Needle Seekers collect haystacks.

A lot of haystacks.

Just so many haystacks. In fact, they soon end up with more haystacks than all the farmers in the county. But hey, gotta find those needles somehow. So the seekers collect hay, and sort hay, and search through hay, and bring out needles.

Then they keep the hay.

In fact, they don’t just keep it, they use it! They get into the hay business, and they sell quite a lot of it. With their huge stock of hay, the Needle Seekers’ Association becomes the biggest hay seller in town.

Then one day, a traveler comes to town, observes what’s going on, and asks, “Why do these hay sellers call themselves needle seekers? I’m seeing a lot of hay in what they do, but where are all the needles?”

Where, indeed.

The impetus for this story is the latest revelation from Snowden and company that the NSA scoops up and keeps data on 9 totally innocent people for every genuine surveillance target (and even that may be giving them too much credit). They sort this data and then, as the article puts it, they “retain, store, search and distribute to its government customers” this information. As Boing Boing puts it here:

Almost everything in the NSA cache is haystack, in other words, with just a few needles. And the hay is deliberately collected and retained, even though it consists of things like love notes, baby pictures, medical records, and other intimate data belonging to people who are under no suspicion at all.

And just what are they doing with all that hay? Rest assured that they are doing something with it. After all, when you see a farmer’s field full of haystacks, it’s safe to assume that the farmer isn’t actually looking for needles in them.

The Spy Draft

The national security letter strikes me as an inherently bad thing. As they exist today, they can compel people and institutions to hand over information, much like a warrant, except that they don’t require a judge’s oversight. A judge is only required to review an NSL if someone challenges the NSL. But here’s the really tricky thing: when you get one, you can’t talk about it. It comes with a built-in gag order. So good luck asking anyone if you have any grounds to challenge it, sucker. For most folks, your only realistic options are to comply or to get arrested. In effect, they force the recipient to become a spy; they must hand over whatever secret information their superiors want, but they cannot reveal their actions to anyone. Brewster Kahle got one, and his experience was not a pleasant one. I don’t want to see that sort of thing happen to anyone.

And how many people does this sort of thing happen to? Well, if we go by 2013 alone… 19,212. That’s how many NSLs were sent out in just one year. Nineteen thousand secret warrants. Nineteen thousand forced acts of spying. And if you think that’s bad, apparently it used to be worse: this article says that between 2003 and 2006, the FBI issued about 200,000 NSLs. That comes out to about 180 secret gag warrants being sent out every single day.

Some folks call modern America a “police state”, but I don’t think that’s quite the right term. It conjures up images of massive overt oppression, when what’s really happening is much more insidious. I propose, instead, that we call our current state a “spy state”. You can’t see who’s watching you, but you know they’re there, seeing everything you do. And life goes on and everything seems normal, until the day they decide they need you, in which case you’d better cooperate, or you’ll just disappear. There is no resisting the spy draft.