Excuse: Duress

Master Sergeant William Olsen was captured during the Korean War by the Communist forces in late 1950 and taken to the Kangye prisoner of war camp. There the Chinese who ran the camp set out to "reeducate" him and his fellow prisoners as to the true nature of the war, namely that "they were the victims of the warmongers and were the aggressors in Korea" (U.S. v. Olsen, 20 C.M.R. 461 (1955)). This "reeducation" was in no way haphazard. It was systematic and relentless, involving countless hours of lecturing, group discussion, and interrogation. The Chinese called this treatment of the POWs "lenient policy," because it was short on threats and long on "persuasion." Over the course of the war, it proved remarkably successful. It got American POWs to do things the Germans during World War II had never gotten them to do. They informed on each other, frustrated each other's escape attempts, and in one way or another almost all collaborated with the enemy. The capstone of the Chinese strategy was "start small and build," a technique that the psychologist Robert Cialdini describes thus:

Prisoners were frequently asked to make statements so mildly anti-American or pro-Communist as to seem inconsequential. ("The United States is not perfect." "In a Communist country, unemployment is not a problem.") But once these minor requests were complied with, the men found themselves pushed to submit to related yet more substantive requests. A man who had just agreed with his Chinese interrogator that the United States is not perfect might then be asked to make a list of these "problems with America" and to sign his name to it. Later he might be asked to read his list in a discussion group with other prisoners. "After all, it's what you believe, isn't it?" Still later, he might be asked to write an essay expanding on his list and discussing these problems in greater detail.

The Chinese might then use his name and his essay in an anti-American radio broadcast beamed not only to the entire camp but to other POW camps in North Korea as well as to American forces in South Korea. Suddenly he would find himself a "collaborator," having given aid and comfort to the enemy. Aware that he had written the essay without any strong threats or coercion, many times a man would change his image of himself to be consistent with the deed and with the new "collaborator" label, often resulting in even more extensive acts of collaboration. (Cialdini, p. 76)

The issue that arose in the aftermath of the war was whether soldiers who had committed treason might argue that "brainwashing" of the kind Cialdini here describes constitutes a kind of duress. Generally courts have refused to extend the notion of duress this far. After all, the kind of "coercive persuasion" involved usually did not contain actual threats of physical harm—that's what makes it brainwashing. But many commentators have insisted that in at least some such cases the defendant comes to be so far in the thrall to some power as to warrant the invocation of the excuse nonetheless. The most famous recent case in which duress-by-brainwashing was unsuccessfully argued is that of Patty Hearst, the newspaper heiress, who was kidnapped by a group calling itself the Symbionese Liberation Army and who let herself be "persuaded" to participate in a bank heist. Since she was not actually forced to participate, but did so "voluntarily," she was denied the duress excuse.