Dangerous Psychology of Secret Courts / Military Tribunals · 4 September 2006

Psychologist and ex-army officer, Norman F. Dixon, in his book, On the Psychology of Military Incompetence, wrote about the staggering irrationality which can beset the thinking of otherwise highly competent, intelligent, conscientious individuals when they begin to act as group. The Penguin Dictionary of Psychology notes that the group-think tendency has been suggested as one of the prime reasons why politicians operating in closed groups so often make disastrous decisions.

The symptoms of group-think include: collective attempts to ignore or rationalize away items of information which might otherwise lead the group to reconsider shaky but cherished assumptions; an unquestioned belief in the group’s inherent morality, thus enabling members to overlook the ethical consequences of their decision; stereotyping people outside the group as less worthy in some ways; shared illusion of unanimity in a majority viewpoint, augmented by the false assumption that silence means consent; self-appointed mind-guards to protect the group from adverse information that might shatter complacency about the effectiveness and morality of their decisions.

Dixon notes that homogeneity of the group in such areas as education, experience will tend to increase the chances of group-think. He notes that this will particularly be the case with military officers. He also notes that it is a feature of armed services that the penalty for error is very much more substantial than the reward for success. The net result of this bias toward negative reinforcement will be that fear of failure rather than hope of success tends to be the dominant motive in decision-making. Such fear increases the tendency for group-think, particularly as the militarist is relatively prejudiced and authoritarian person socially conformist security-seeking, prestige-orientated anti-intellectual, … Dixon adds that they are lacking in complexity of thinking, independence, and relatively high in anxiety.

Dixon notes the connection between the conservatism syndrome and a liking for militarism. In Political Conservatism as Motivated Social Cognition, Jost, Glaser etc. note that conservatives perceive the world as generally threatening. High profile terrorist attacks such as those on September 11, 2001, might simultaneously increase the cognitive accessibility of death and the appeal of political conservatism. In turn, mortality salience leads people to defend culturally valued norms and practices to a stronger degree and to distance themselves from, and even to derogate, out-group members to a greater extent And, in turn, mortality salience has also been shown to evoke greater punitiveness, and even aggression, toward those who violate cultural values.

This combination of the general tendency to group-think and of military minds will make it very difficult for a military court/tribunal such as at Guantanamo Bay to objectively evaluate information and make balanced decisions. Secrecy will make it almost impossible.

But what about secret civilian courts, or civilian courts where important evidence is heard in secret?

Almost by definition there is little in the way of public information about the operation of secret civilian courts. However, the operation of open criminal courts provides examples of how lack of public scrutiny can lead to distorted results. There is the case of a prominent former Australian judge who pleaded not guilty to a driving offence on the grounds that someone else was driving his car. The Court accepted his defense. It was only through the efforts of a journalist that it subsequently emerged that the supposed driver was actually dead at the time. If the former judge’s evidence had been given in secret court, or as secret evidence, the lie would have stood.

And, how much easier it must have been for the magistrate (judge) hearing this traffic case to accept the excuse of the former judge precisely because he was a former judge the magistrate would not only have not suspected, but would have psychologically resisted the idea, that someone in his identification group would lie to a court.

The same is true for in-house court experts. The Australian Family Court is effectively a semi-secret court because legal restrictions on identifying people before it mean that there is no media interest in reporting any of its proceedings; something that the Court finds very useful in allowing it to engage in its own group-think. The Court employs so-called counselors/mediators to make assessment of the psychological situation of families. Once a family assessment has been made and presented to the court, it will be very difficult for a judge to take a significantly different view. Indeed, the judge may feel that he must act to exclude contrary evidence; and he may frame his reasons for judgment in terms that ensure appeal court judges will be biased toward the biased conclusion that he has reached a conclusion that is not so much his, as that of the counselor/mediator!

Like the Family Court, military tribunals will receive evidence from in-house experts (in this case, in-house will mean military / security people who are effectively part of the military identification group) and this evidence in unlikely to be subjected to a great deal of scrutiny.

As with military courts, the Family Court judge’s group-think will be promoted by feelings of the groups inherent morality and superiority to others. (This site has an account of a Family Court case in which these characteristics of group-think were on ample display—see article “Which Judge? Deceit dressed as profound policy!”)

Thus anyone before a secret court or military tribunal runs the risk of suffering the same fate as Japan’s General Yamashita. According to a 2004 CRS Report to Congress, Military Tribunals: Historical Patterns and Lessons, Yamashita was charged as a war criminal in 1945 with neglect of duty in controlling his troops. According to the CRS Report, none of the charges established a direct link between Yamashita and the underlying criminal acts. Nevertheless, Yamashita was found guilty as charged.

According to the CRS report, twelve international correspondents covering the trial voted 12 to zero that Yamashita should have been acquitted. Frank Reel, a (US army officer and lawyer) member of the defence team, concluded that Yamashita was not hanged because he was in command of troops who committed atrocities. He was hanged because he was in command of troops who committed atrocities ON THE LOSING SIDE.

If a public military tribunal can convict a man without evidence, just imagine what a secret military tribunal can do!