The return of the "brainwashed" defense.

Who's winning, who's losing, and why.
Jan. 28 2002 4:20 PM

The Brainwashed Defense

Will Walker's, Moussaoui's, and Reid's lawyers breathe new life into an old tactic?

As the first suspects in the terrorist war on America prepare to stand trial, their defenders and apologists are invoking a word from the Cold War: "brainwashed."

Last week, the father of Richard "Shoe Bomber" Reid insisted his son was "brainwashed." A friend of John "American Taliban" Walker's told People magazine that Walker had been brainwashed by al-Qaida. And recently, Slate reported that Abd-Samad Moussaoui, the brother of Zacarias "20th Hijacker" Moussaoui, believes that, in Britain, his brother "became prey to an extremist brainwashing cult."

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

What is "brainwashing," and is there any scientific basis for believing it works? Were Osama Bin Laden's suicide bombers no different from the members of Heaven's Gate or the residents of Jonestown? Is a "brainwashed" defense open to criminal defendants? Has such a defense ever been used successfully in an American trial? Is the American belief that cults and new religions routinely brainwash their adherents rooted in science or is it merely a marker for a Western intolerance toward novel or strange religions? And might this same public certainty that brainwashing works lead to acquittals in the upcoming terror trials?

British journalist Edward Hunter coined the term "brainwashing" in his 1953 book, Brain-Washing in Red China, which described Communist techniques for controlling the minds of nonbelievers. American scholars, journalists, and the public loved the term, and by the time The Manchurian Candidatewas released in 1962, the nation was sold on the possibility that evil Communists could, with the flip of a queen of diamonds, brainwash normal citizens into becoming robotic assassins. (In 1968, when Michigan Gov. George Romney claimed that the Johnson administration had "brainwashed" him about Vietnam, Sen. Eugene McCarthy quipped that in Romney's case "a light rinse would have done.")With the emergence of strange new cults and sects over the past decades, "brainwashed" has become the best explanation we can muster to explain seemingly normal Americans' decisions to commit mass suicide or troll the airports in unflattering saffron robes.

The "Moonies/Scientologists/Hare Krishnas made me do it" defense has received a good bit of play in American courtrooms over the last 25 years—much of it successful. The most famous attempt at the defense came in the Patty Hearst case. Hearst, a 19-year-old heiress to the Hearst publishing fortune, was kidnapped, held in a closet, and tortured for several months by the Symbionese Liberation Army, whom she then joined and aided in several armed robberies. (For a primer on the SLA, click here.) At trial, Hearst's lawyer F. Lee Bailey advanced a "duress" defense, explaining that she would never have robbed the bank had the SLA not "brainwashed" her. The jury didn't buy it, even when Robert J. Lifton, one of the earliest scholars in brainwashing, himself testified in her defense. Hearst was sentenced to seven years in prison.

Hearst's brainwashing claim ultimately succeeded—not in any court of law, but in the court of public opinion. Six of Hearst's former jurors joined a massive national movement to commute her sentence, and John Wayne, one of her many famous defenders, declared, after the tragedy in Jonestown, Guyana: "It seems quite odd to me that the American people have immediately accepted the fact that one man can brainwash 900 human beings into mass suicide, but will not accept the fact that a ruthless group, the Symbionese Liberation Army, could brainwash a little girl by torture, degradation and confinement." President Carter commuted her sentence, and President Clinton granted her a pardon.

Why does the American public embrace brainwashing as scientific fact, long after the scientific community and the courts have made it clear that the phenomenon is dubious at best? Perhaps because brainwashing became so much a part of mainstream popular culture; perhaps because it offers a "scientific" explanation for religions we cannot accept. Perhaps, more profoundly, if everyone who doesn't think as we do can be dismissed as "brainwashed," we can keep asserting cultural and religious supremacy and still appear open-minded and tolerant. Religious crusades are not elitist. They are medicinal.

There is good empirical evidence to shore up the early claims about brainwashing, primarily in studies done mostly on former POWs by Edgar Schein and Robert Lifton in the early '60s. Prisoners could indeed have their minds and values shaped by their captors. According to Lifton, the standard requirements for a really sparkling clean brainwash include: isolation of the subjects, control over their information, debilitation, degradation, discipline and fear, peer pressure, performance of repetitive tasks, and renunciation of formerly held values. (All of which sounds eerily like law school to me.)

Where the empirical proof really broke down, however, and where the anti-cult movement unleashed a witch hunt, was in the "second-generation" brainwashing theory: a branch of scholarship trying to prove that subjects could be brainwashed without physical coercion. Most of the early brainwashing scholars disavowed these applications of their theories in non-coercive settings. It requires a long, airy leap of logic to believe that a subject released from physical restraint will continue to obey the commands of her captors for protracted periods of time. But two Berkeley-based scholars—sociologist Richard Ofshe and psychologist Margaret Singer—made names for themselves in the '80s with theories of "coercive persuasion," wherein manipulation, exploitation, and misrepresentation by cult leaders can substitute for physical coercion. This became the most satisfying public explanation for why Americans were joining the Rev. Sun Myung Moon's Unification Church or the Krishnas. And while the second-generation, non-coercive theory of brainwashing is almost entirely without empirical support, Ofshe and Singer managed to corner the expert witness market in a host of post-Jonestown, post-Cold-War brainwashing cases.

The vast majority of brainwashing cases are civil. Some concern the "deprogrammers" of the brainwashed. Mostly, they involved former cult members suing the groups for torts including false imprisonment, intentional infliction of emotional distress, or fraud. Some have resulted in multimillion dollar jury verdicts. But every dog has its day, and all junk-science has its limit. The watershed for the second-generation brainwashing defense (and the end of Ofshe's and Singer's impressive run as unbeatable expert witnesses) came in 1990 with U.S. v. Fishman, a California federal criminal action in which a defendant put forth an insanity defense in a mail fraud case, alleging that he'd been brainwashed by the Scientologists. The judge tossed the brainwashing testimony, holding that the views did not represent the consensual view of the scientific community.

More and more, the idea of brainwashing is dismissed by courts as either Cold War hysteria or the anti-cult mania of the '70s and '80s. With their new affection and tolerance for cults (now respectfully renamed "new religious movements") and a dearth of empirical evidence that evil geniuses can force innocents to do what they would not normally do, the scientists aren't around to testify. The most dramatic phenomenon revealed by the current empirical evidence is that something called "social influence" exists. (This is more or less the same thing that makes you buy the Ralph Lauren turtleneck instead of the one from Sears.) And the scientists themselves have tended to break down over definitions, politics, and empirical evidence (click here for an excellent account of the meltdown over brainwashing that has beset the academy of late).

But still, Americans love the idea of brainwashing. In much the same way that we clung to myths about ritual satanic abuse of schoolchildren long after the McMartin preschool case was proved a sham, we are simply sold on the notion that brainwashing works. Studies show American jurors overwhelmingly still believe brainwashing is a highly potent psychological phenomenon. In one much-cited 1991 survey of 383 random subjects, nearly 78 percent believed brainwashing can occur even if the subject "is not actually held captive against their will." In a 1992 survey of 1,000 random New Yorkers, about 43 percent of respondents believed that brainwashing is absolutely necessary to make someone join a religious cult.

What is it about the Moonies or the Branch Davidians that makes Americans so certain that their adherents must have been brainwashed into compliance? First, brainwashing offers a clinical/scientific explanation for frankly un-American levels of religious fervor. Some religion is nice; the sort that comes with a tasteful choir and topical sermons. But head-shavings, communes, and the eating of too many legumes make us nervous. So does mass suicide. Second, Americans place a high premium on personal freedom, such that any religion that restricts movement, choices, or association, smacks of cults to us. Believing in brainwashing allows us to consider our own religious beliefs normal, even rational, while allowing us to dismiss Jehovah's Witnesses, Mormons, and Scientologists as zombies. We can feel sorry for them and still go to church on Sunday.

If the American public is comfortable with the notion of brainwashing as the best explanation for religious zealotry, it remains to be seen whether we will also accept that fundamentalist Islam is merely a "cult" that's subjected its members to relentless brainwashing. If the Sept. 11 bombers are just so many "Manchurian candidates" and John Walker just a California kid who got brainwashed, juries may have a tough time finding them guilty.

Our ambivalence about fundamentalist Islam is clear. We can't decide whether Muslim fundamentalists are an enemy to be vanquished or a cult to be "deprogrammed." A search of Nexis since Sept. 11 reveals hundreds of references to Islam in tandem with brainwashing, including numerous assertions that all madrasahs are Islamic mind-control factories. Already the cult experts are arguing that Walker, Reid, and Moussaoui are victims of extremist cults. Rick Ross, a lecturer, deprogrammer, and expert witness on cults recently toldTime magazine that that the Taliban "is an apparitional cult." Former Moonie and author Steven Hassan claims to see unmistakable signs of brainwashing in both Walker and Moussaoui, both of whom apparently underwent radical personality changes upon converting to Islam.

In the terror trials of 2002, defense attorneys will be hard pressed to find a judge who will still recognize a second-generation brainwashing specialist as an expert or a brainwashing expert who would even testify that Bin Laden can remotely control the minds of thousands of innocent young men. The real problem is that jurors, and the public, may still believe it regardless. A perfectly credible legal narrative can be crafted to play on the same sympathies that ultimately freed Patty Hearst: Reid, Moussaoui, and Walker, young converts to a religion that is a vicious brainwashing cult. Your Honor, Osama made them do it.

If anyone has been brainwashed, it's the millions of Americans who still view new, radicalized, or unusual religions as "cults" and their leaders as masters of mind control. We must try these terror cases free from the patronizing assumption that strange, even crazy beliefs are necessarily products of illness or undue influence. The proper word to describe a savage act committed at the behest of a charismatic lunatic is not "brainwashed." It's evil.

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