Preet Bharara:

From CAFE and the Vox Media Podcast Network. Welcome to Stay Tuned. I’m Preet Bharara. The Israel-Hamas war is a devastating story with vast implications for the Middle East, the US and the world order. On Stay Tuned we’ll do our best to cover it as events unfold. Today we’re departing from the show’s usual format. It’s an extremely difficult situation all around and people understandably have very strong feelings. As part of the continuing conversation about this war, instead of answering questions myself this week, I’ll be speaking with my friend Dan Senor, who’s an author and former foreign policy advisor to President George W. Bush. Senor has long been outspoken about his support for Israel and its prerogatives in the Middle East, and we’ve had spirited discussions about these issues over the years.

Dan Senor:

One of the core tenets of Zionism is that Israel’s, the Jewish people’s fate will never again be in other people’s hands that Israel does not seek permission to defend the Jewish people. And it does not have to depend on anyone else because having to seek permission or depend on others as we both know, has not worked out very well for the Jews in history.

Preet Bharara:

Then I’m joined by author and Drexel University professor of law, Adam Benforado for a conversation about cognitive psychology and criminal justice.

Adam Benforado:

And so I think it’s critical in law school to think about once you know the truth about what is actually moving the legal system, should you press those levers. And I think that’s something that each individual lawyer has to struggle with on their own.

Preet Bharara:

That’s coming up. Stay tuned.

Q&A

Dan Senor was awarded the Department of Defense Medal for distinguished public service, the Pentagon’s highest civilian honor during the George W. Bush administration. Dan has served as a senior advisor to former house speaker Paul Ryan’s campaign for vice president and as a foreign policy advisor to Senator Mitt Romney’s presidential campaigns. He’s the co-author of the forthcoming book, The Genius of Israel: The Surprising Resilience of a Divided Nation in a Turbulent World set for release on November 7th. His 2009 book Start-up Nation: The Story of Israel’s Economic Miracle became a New York Times bestseller and was translated into more than 30 languages. A fellow podcaster, Dan is the host of Call Me Back with Dan Senor. Dan Senor, welcome to the show.

Dan Senor:

Hi, Preet, thanks for having me.

Preet Bharara:

I know it’s a tough time for a lot of people and you’ve been paying close attention to the things that are happening in Israel. I do want to timestamp that we are recording this on Wednesday, October 18th at around 11:00 AM Eastern time because by the time this drops, things are very fluid on the ground and in the air and elsewhere. My first question to you is, so President Biden is in Israel. How is that trip going? Is the US doing enough to support Israel? Is it handling the situation correctly?

Dan Senor:

Well, I think that President Biden’s first actions and first statements were extremely important for Israel and for the forces of civilization around the world and specifically in the western world in that his first conversation with Prime Minister Netanyahu on the Saturday that the attack began, the invasion began, so on October 7th. My understanding is that Prime Minister Netanyahu asked President Biden for a bunch of things and the president gave him everything he asked for, including time and space to run its response that not the situations which Israel’s experienced in the past. When Israel tries to respond to a massive terror attack or an escalation in hostilities and they’re given a few days and then told to reign it in, he was asked for space and time and like I said, I think the President gave it to him for now at least.

And then his statement, president Biden’s statement during the week and then his 60 Minutes interview were both extremely powerful for… Look, some people are quibbling with some of the things he said and were unhappy that he didn’t mention Iran in his statement or a 60 Minutes interview because Iran clearly had some role in this. And that he was using some language about Israel being mindful of the scale of its response. But I think both those missed the point. President Biden used two phrases. Two phrases that were extremely important and historic. He compared Hamas to ISIS and he compared Hamas to the Nazis and what the Jews were experiencing to the Holocaust. He cited this point that it was the deadliest day for Jews in antisemitic violence since the Holocaust, anywhere in the world, the deadliest day. And the reason comparing it to the Nazis and comparing to ISIS was so important was because when the United States through the course of three administrations, the Obama administration, then the Trump administration and then the Biden administration were committed to completely wiping out ISIS in Raqqa in the Middle East.

There was no discussion about the proportionality of the US’ response to ISIS. There was no discussion about, well, there’s going to be a vacuum after the caliphate is wiped out and before we do anything, we need to think about who’s going to govern that space once ISIS is pushed out. And there was no discussion about… Yes, tragically in any war situation, in any fog of war situation, there are civilian casualties. That was the reality of how the US prosecuted its war against ISIS. I don’t need to tell you about how the United States prosecuted its war against the Nazis. Look what the US did to cities like Dresden in Germany or the firebombing in Tokyo or… I can go on and on and on, to the lengths of the US went to wipe out the threat from the Nazis.

By President Biden invoking the Nazis and invoking ISIS gave as clear a signal to Israel as one could imagine, and to the world that the President of the United States sees this threat like the Israelis do, and I thought he was giving them about as flashing a green light as one could get to do what you got to do.

Preet Bharara:

You said something interesting at the start of your comment though. You said Biden is clearly giving Israel space and time, and then you said, for now at least, is that indefinite? Are there any points at which that might be retracted? Are there any red lines at all in the prosecution of this war?

Dan Senor:

In May of 2021, President Biden gave very strong assurances to the government at the time, the Israeli government at the time was not the Netanyahu government, to respond to the hostilities from Hamas and basically gave Israel green light for a number of days until it didn’t. I think it was about eight or nine days, 10 days. And then by day 11, I think if memory serves me correct, they basically said, okay, we got to wind this down. And in the 2006 second Lebanon war, the Bush administration gave the Olmert government a lot of leeway to do what it had to do clobber, Hezbollah. It went for 32 days, and as Israel got closer and closer to day 32, it wasn’t timed to day 32, but it just so happened there was a civilian infrastructure hit in another part of Lebanon in that war that completely rattled the international community. And at a certain point, the US administration and not just the US administration, others too, went to Israel and said, okay. What do I mean?

Preet Bharara:

What about now?

Dan Senor:

I believe that the President is giving the Israeli government space and time. I think President Biden’s visit to Israel was extremely important for a variety of reasons, not the least of which is he immediately validated Israel’s version of events in terms of what happened with the bombing of that hospital in North Gaza and looked at the intelligence, and there’s plenty of evidence that this was a self-inflicted tragedy by a Palestinian Islamic jihad in Gaza where this rocket landed in this parking lot next to the hospital. All the signals so far is even when Israel’s under enormous pressure, and it’s still really early days, but even when Israel’s under enormous pressure, the President is holding back the mobs, if you will, that would normally pressure Israel and pressure the United States to restrain Israel.

And so I think those are encouraging signs. Now, like I said, this is war, it’s going to be a very messy war. And this is not like May of ’21, and this is not even like 2006. I think this is… You go back through every one of Israel’s conflicts, I think this is even worse, this situation than the Yom Kippur War for Israel. I think Israel is going to… The images we are inevitably going to see are going to be really ugly. Does that ultimately cause so much pressure for the Biden administration that they have no choice but to reign Israel in? That’s why I say for now, I can’t say it’s indefinite. It’s conceivable that that could happen, but right now, early signs are pretty strong from Israel’s perspective.

Preet Bharara:

You mentioned the hospital tragedy, And I wonder if you have a thought about just how ugly and difficult all of this is. Because in the moments after something exploded, whether it was in the hospital or the parking lot, whether it was a bomb or a rocket or a missile, all that was unclear. And we talk about the fog of war, that’s a phrase that’s been invoked a lot lately. Do you have any advice or counsel for people who are hearing about events in real time and or the media that’s covering those events and or leaders in governments to wait and see?

It’s very difficult for people not to arrive at snap judgements. How do you view that and isn’t that going to keep happening again and again where people opine and have reactions before they know all the facts? And even when the facts do come out, and you stated that both Israel and the US independently based on its own department of defense intelligence have concluded that it was not an Israeli missile or bomb, but a self-inflicted wound, as you said, but many people are not going to believe that. That’s a complicated rambling statement. Not a question, but can you address?

Dan Senor:

I think there are two issues here. Let’s just call it what it is. Sky News yesterday immediately went out with a report in the UK saying that this was an Israeli rocket and all their sourcing was from Hamas authorities. Right off the bat, if a news organization is going to go to press on a major development in a war based solely on sources from one side and not even acknowledging that there are two sides, and those two sides happen to disagree. Obviously in an ideal world, they just hold off and say, “We don’t know the origin of it this happened. We don’t know the origin of it, we’re trying to get to the bottom of it.” And they don’t even have to declare what… Try to characterize it. What is so irresponsible to me is trying to characterize it before they have actually run it down, and having that characterization shaped by just one side is just irresponsible.

I get the frenzy of this news cycle and people… There’s developments and they got to rush to press. I get it, but it’s just irresponsible because the implications for this, Preet, are… News is that Israel blew up a hospital, which wasn’t true. That does not only have implications for Israel and Gaza, it has implications for the Arab Street. This summit that was supposed to take place, the Arab World Summit with Jordan and Egypt and the Palestinian Authority and President Biden was basically canceled. The Arab Street got so hot after the news of this hospital explosion. It’s just the implication of one-sided thinly sourced reporting in a war is dramatic. But there’s an even more worrisome issue, which is, it is well-documented and well-known that Hamas strategically and deliberately co-locates its weapons capabilities and its military personnel and its senior military commanders in schools in North Gaza Strip in hospitals run by the United Nations in all sorts of densely populated civilian areas.

They do that for two reasons. One, they believe they know Israel tries to avoid civilian casualties, so it has a deterrent effect that Israel will have to take more time and be more careful and will generally be more averse to targeting a certain area no matter what they know is there. Because the last thing they want to do is kill hundreds of innocent people. A, it has a deterrent effect. And B, if Israel does proceed with the operation, it has tremendous PR value because they get to do a version of what they tried to do yesterday, which is to say, “Look, look what the Israelis did. They just blew up a hospital.” I’ve been involved with issues in the Middle East and specifically Israel for most of my adult life, this issue right here is one of the two or three that drive me the most crazy because it is so well known that this is what Hamas does.

Very few bad actors in the world, non-state actors do what I’m describing here. We in the west, other countries have been involved with conventional wars forever. This tactic is very rare. It would be like Putin co-locating a weapons capability in a Russian orphanage and in the fog of the Russia, Ukraine war, that orphanage gets blown up and the US government or the international authorities or the press were to say, “It’s Ukraine’s fault.” It’s just we wouldn’t do that. It’s so preposterous. And yet this is a commonly used, frequently used tactic of Hamas. And on this point, the press should know better.

Preet Bharara:

As you say, it is generally understood by reasonable good faith people that in these conflicts, Israel tries to avoid civilian casualties and collateral damage, both because it’s the right thing to do and also it helps give them some free rein and their PR issues as well. In this instance, when you have the worst terrorist attack, the worst loss of Jewish life since the Holocaust, and given that Biden and the Americans have given them space and time for now at least as you said, are the incentives for the Israelis to be even more careful about collateral consequences and damage or a little less careful because what’s most important is to stamp out Hamas?

Dan Senor:

I think that the need to be careful because Israel has the US on side and because this is going to be a long war for Israel and it could potentially be a multi-front war, the need to keep all the various actors in this saga on side is extremely important for Israel. And so I think Israel will be as disciplined about trying to avoid civilian casualties and collateral damage as much as it can. That said, I have sensed, and I’m having conversations literally every single day with Israelis, and they are from all walks of political and ideological life. I’m speaking to journalists, I’m speaking to people in political leaders on the left and the right… Everyone I talk to, people in the startup scene, and many of these people have been very invested in the two-state solution in the cause of Palestinian self-determination and mutual recognition of a Jewish state and a Palestinian state.

These are people who have been working on the peace process forever. I have never sensed existential fear from as many Israelis as I’ve heard over the last 10 days or so, existential fear. And to be clear, I’ve studied the Yom Kippur War, which was the last real existential moment for Israel. This feels even worse than that. In the Yom Kippur War, Israel was fighting very large, very conventional armies in the Egypt and Syria. It was scary. Israel totally punched above its weight, overcame these two big threats. In retrospect, the Egyptian and Syrian armies were paper tigers. The fear for Israel today and for Israelis today is that Israel will be perceived as the paper tiger because in this particular case, it wasn’t Israel going to war against two big conventional armies. Israel was invaded by a ragtag army of terrorists who came in on motorcycles and pickup trucks and explosives.

Now, they were better trained and well organized than we could have anticipated, but still. And I think that has so freaked out the Israeli public that they got overrun for a period of time by this terror organization, and now they’re fearing obviously what’s happening in the north and they’re fearing what’s happening in the east and they’re worried about Iran, so there’s a lot going on. I would say that there’s this determination among the Israeli public, “Wipe out, Hamas decimate them.” They are ISIS, that kind of mindset. That’s why they’re feel… Does that mean-

Preet Bharara:

Do what ever it takes.

Dan Senor:

… they’re going to be reckless, to get to your question? I don’t think they’re going to be reckless. I think they’re going to be pretty disciplined because it’s core to who they are as far as the character of the country’s concerned, and it’s also core to how they fight wars. I think there’s a distinction between fierce determination to do whatever they have to do, but I don’t think they’re going to compromise on the issue of collateral damage and civilian casualties.

Preet Bharara:

Can I ask you if you see a scenario in which there would ever be any number of American boots on the ground in the Middle East?

Dan Senor:

Not in Israel and not defending Israel. It’s a very good question, and I think about it a lot. Since the founding of the state of Israel, one of the core tenets of Zionism is that the Jewish people’s fate will never again be in other people’s hands, that Israel does not seek permission to defend the Jewish people. And it does not have to depend on anyone else because having to seek permission or depend on others, as we both know, has not worked out very well for the Jews in history. And so Israel has the founding of the state, the security doctrine has been undergirded by this idea that we may need arms and munitions and money and financial assistance, but we do not want you America to expend blood for our security. And this is core. And I do think if you look at the polling now, Preet, the polling is record high in terms of the American public standing by Israel.

Why is that? I think it’s partly because the American people see the forces of barbarism versus the forces of civilization. And generally speaking, they want to be on the side of the forces of civilization. And to them, that’s Israel. It’s a long shared history, shared values, they’re like us. They’re our people and they’re fighting really bad people. But then when you add in that Israel says, back us up, but we’re going to do this. It’s our soldiers whose lives will be on the line, not yours. I think for the American public, that is also very powerful that they have Israel’s back, but Israel’s doing the fighting. And so I think it’s very important to Israel that they maintain that through this conflict. And it’s going to be hard because as I said, I think it’s going to turn into a multi-front war.

Preet Bharara:

Well, on that note, Dan Senor, thanks for your insight. Thanks for coming on.

Dan Senor:

Thanks for having me.

Preet Bharara:

I’ll be right back with my conversation with Adam Benforado.

THE INTERVIEW

Our program continues with a conversation about the intersection of law and psychology with Professor Adam Benforado, the author of the 2015 book, Unfair: The New Science of Criminal Injustice and this year’s A Minor Revolution: How Prioritizing Kids Protects Us All. We talk about false memories, combating biases and police lineups, and the prospect of lowering the voting age. Professor Adam Benforado, welcome to the show.

Adam Benforado:

Thank you so much for having me.

Preet Bharara:

I like talking to lawyers who also teach, and you are one of those people. I’m a lawyer who also teaches not as many classes as you do. What’s different about teaching law today than when you started, if anything?

Adam Benforado:

Well, I think there is more of an understanding of the importance of engaging everything that’s outside of the law, not simply in scholarship, but when you’re talking to students and indeed when you’re talking to those new 1Ls. And so I think that’s the biggest difference, I think. When I started, it was a lot more acceptable to have the old school Socratic dialogue, very doctrine based. And I think now a lot of professors realize that they want to bring in insights from sociology and psychology and economics and politics.

Preet Bharara:

I think I can mention that part of the reason we invited you on the show as I was having a conversation with a past guest who was a friend of yours and a future guest, Adam Grant. And I was telling him my view that I’ve had for some time now that at a minimum we should have more psychology courses taught in our law schools and that you could also make the argument that there should be some mandatory minimal psychology class that’s required to be taken by law students. And I can explain why I think that. Do you agree with that?

Adam Benforado:

I absolutely do, and I think I reached this conclusion actually very early on in my legal education, and it came actually out of real frustration and disillusionment. I think a lot of people who see me now as a law professor think, “Oh, you must’ve loved law school. It must’ve been wonderful for you.” And I actually went in and my first semester felt really lost. And the main reason I felt lost was that the story that I was being told by my professors about what was moving the law and what determined outcomes, which was the black letter law, the facts of the case didn’t seem to me to be even half of the story. What I wanted to know was about the psychology of judges and jurors. I wanted to know about the biases that police officers might bring to their jobs. I was told in contract law assume a rational consumer.

And I thought, I don’t know that person. And I think out of that frustration, I started what really I think saved me was starting to work with Professor John Hansen who had been trained in neoclassical economics and had himself become very disillusioned and was now engaging research from the mind sciences, from psychology, from neuroscience to try to build a more realistic model of human behavior upon which law and legal theory could be built. And so I think that became really my life’s work to try to actually ground what we do in law every day in reality. And by reality I mean the insights from social science.

Preet Bharara:

I’ll give you an example of something just very basic that’s not as complex and deep as judicial bias and implicit bias on the part of other stakeholders in our criminal justice system specifically or our legal system generally, even if you take trial practice in law school, the class in which you were taught how to do a cross-examination, a direct examination, address the jury, all those kinds of things putting in exhibits, you are taught how to ask a non-leading question when you put a witness on the stand in direct examination. And you’re taught what’s an objectionable question, you’re taught how to object and when to object and what the rules of evidence are. And you learn all the various rules about hearsay and it’s exceptions.

I don’t remember anybody telling me or teaching, here’s how you put a witness at ease. Here’s how you tell the story in a way that the witness is comfortable. Here’s what you should tell a witness before you’re putting them on the stand so that they understand what they’re going to be expecting. They understand what the layout of a courtroom is going to be, they know where the judge is going to be. All sorts of things that when you actually begin to practice law and become a trial lawyer, you learn and you’re taught by your colleagues. And that’s fine. You learn it at some point, but that’s all basic human nature psychology, is it not? Why don’t we teach those things?

Adam Benforado:

I think a lot of it has to do with the fact that law is somehow treated as different from any other area. It is incredibly backwards looking. We differ, I think, to the assumptions that were established centuries ago. If you’ve thought about, for example, a doctor, you go to the doctor with some medical condition and the doctor’s like, well, let me go get this dusty book off and see how they treated this 200 years ago. That’s crazy. We’d be saying, “I want to find a different doctor,” but in law-

Preet Bharara:

I found these leeches.

Adam Benforado:

Yes, exactly. I think what’s so weird though, in law, we assume that the people who lived centuries ago were so much more enlightened and wise than us. And even if that were true, and I actually am doubtful that that is true, they certainly don’t have access to all of the knowledge we have accrued in the intervening decades and centuries. And so I think one of the reasons though that we get stuck just doing the same thing, teaching the same cases over and over again is because that’s how we’ve always done it. And we assume that that’s the right way to do it. And of course, I think new professors when they come in, they’re given the standard materials. You get the case book you were taught and you get teaching notes from the professor who taught it to you, and we pass on this lie and I’m going to come out and say it, lie to students about-

Preet Bharara:

Strong words, professor.

Adam Benforado:

Hey, that’s why I have tenure. I think we pass this on in part because of this blind deference to the status quo, but it’s deeply damaging and it’s unfortunately, it’s reinforced by the endpoint, which is the bar exam. The bar exam doesn’t ask any of the questions-

Preet Bharara:

Can we get rid of thing because that thing is terrible?

Adam Benforado:

Hey, right on. You and me. I’m already-

Preet Bharara:

It’s funny, I was thinking I was doing this hypothetical in my head, my daughter is thinking about law school and is taking the LSAT, and I just remember nightmares thinking about the LSAT. For those of you who have not become lawyers, it’s not a fun test. There’s a section on the LSAT called Logic Games, which remains and is a problem for a lot of people. And it was a problem for me. And to the extent that that test is supposed to predict how well you do… I did fine. I didn’t fully ace it, but I did fine. But if you took a number of highly successful accomplished lawyers, either in practice or in academics and 30 years into their career, you gave them the LSAT, I’m not sure that would be proof of anything.

Adam Benforado:

I don’t think it would be at all. And I think that’s the starting point of one’s legal career and the most important milestone at the end of law school is the bar exam. And both of those things I think are terrible both in spreading this untruth about what’s most important, what makes a good lawyer if you memorize all of the legal rules. Anyone who has been a lawyer, anyone who studies lawyers, knows that memorizing the law is the easiest part. The hardest part is actually understanding real human beings.

Preet Bharara:

And exercising judgment.

Adam Benforado:

Yes. And I think the other part that is deeply problematic is what these tests actually do, which are deny entrance into the legal system who would be helping people. I think in some ways, and this is a very cynical perspective, what the bar does best is help lawyers maintain a monopoly and keep their rates up. In the state of Pennsylvania, only two out of three of those newly minted lawyers who have spent tens of thousands of dollars on their legal education are allowed through, allowed to pass through the gate. And I think that results in a real lack of lawyers, particularly to the individuals who most need them, those who are facing eviction, those who otherwise are relying on public defenders. And so I am with you when… I’m all ready to take on the bar system.

Preet Bharara:

Let’s go back to psychology for a moment. It occurs to me that there’s one area that there is a explicit acknowledgement that human psychology is at play, and that is when in law school you’re taught how to negotiate. And sometimes it’s in corporations class and sometimes it’s in contracts, and sometimes there’s a whole separate class you can take on negotiation. Why is that the case? Everyone understands that if you’re a party negotiating with another party, you have to understand their behavior and the indicia of credibility and whether they’re bluffing and everything else. But is there any other place where you think psychology’s explicitly acknowledged?

Adam Benforado:

Well, I think, again, it would only be my own theory, but I would suspect part of that reason is because that’s a newer field. Even the idea of transactional law seems to me to be another area where psychology comes more into it. And I think that’s because it’s less affected by this casebook method, this Langdellian way of teaching law where we produce these summations, these classifications and then pass them on over centuries. I think negotiation, I think transactional practice are more reliant on the behavioral evidence that we have. And some of that actually comes from business, from marketing, from business school professors who happen to often be psychologists.

Preet Bharara:

And then we’ll get to some specifics that you write about in your books and in your articles, but if you were going to design a curriculum for law schools generally in which students would learn some basic psychology, what would that curriculum be?

Adam Benforado:

Well, I think it would have multiple components. I think to the extent that we stuck with a first year curriculum, I think it would be important to bring in insights from psychology in every one out course. And I’ll say that I teach criminal law, and it is a huge part of my course. I don’t just go through the doctrine laying that out for students. We talk about police officers, we talk about jurors and judges, we talk about the effects of imprisonment, solitary confinement. I think that I would be doing a disservice to my students if I didn’t tell them the truth about the system that they were about to enter. Now, I also think that it’s very important to have targeted courses that are very focused on diving deeper into the latest research from psychology, from neuroscience to the extent that someone is going to business law to look at the latest evidence from behavioral economics, for example. And finally, I think it’s very important to combine all of this with a very concerted effort to engage the ethical issues that arise.

One of the things that I always tell my students is at the end of my criminal law course is, “You’ve just learned about a lot of biases. You’ve learned about a lot of ways to stack the cards in favor of your client. And the question that I think you have to confront is, should you use that?” I think that’s one of the hardest things as a lawyer when you’re actually out in practice to wrestle with. I think it’s critical to have thought about this stuff before you are in the trenches, because once you’re in the trenches, I think everything is pointing to just going ahead, winning the case. The other side is pushing you hard. And so I think it’s critical in law school to think about once you know the truth about what is actually moving the legal system should you press those levers. And I think that’s something that each individual lawyer has to struggle with on their own.

Preet Bharara:

Let’s talk about one issue that you write about and that is endlessly fascinating, and is that the intersection of the law and these other fields. And that is memory.

Adam Benforado:

Yeah.

Preet Bharara:

How good are our memories?

Adam Benforado:

Well, I think the question, to reframe it as a true lawyer, maybe the question that I want to answer is not whether it’s good or bad, but whether it is what we think it is. And I think that the way many people imagine their memories to work is sort of like a camera, this thing that takes photographs and then stores that file somewhere and the file can sometimes get lost. Perhaps it gets a little dusty, but ultimately it’s there for us to pick out at any moment.

And the truth is that our memories don’t work like that at all. It’s a much more dynamic process where even the act of remembering something can change that memory. And I give the example often in public lectures where I’m talking about memory, where I ask people to describe someone that they have seen dozens, hundreds, in some cases thousands of times. I say, you have seen this person, I guarantee it, and I just want you to describe that person. I want you to tell me what their face look, what is kind of nose? Do they have a ski jump nose? What’s their hair look like? And I say, okay, describe the person on a $10 bill. And you know what? No one can do it. No one can do it. And I think what that shows is, even seeing something dozens, hundreds, maybe even thousands of times does not commit.

Preet Bharara:

Wait, who’s on the 10?

Adam Benforado:

Is that Hamilton?

Preet Bharara:

Oh, even you don’t know.

Adam Benforado:

I used to back when I was-

Preet Bharara:

Because I was going to say, everyone can describe what the person on the penny looks like because everyone knows Lincoln, but Hamilton before the musical-

Adam Benforado:

And the question is, why does certain things stick in our memories and other things not? And one of the things that I talk about in this first book, Unfair, is how so many situational variables outside of our awareness shape the encoding of that memory. And then later, lots of other situational factors determine how easy or difficult it is to recall. Some of the things might seem obvious, cross race identifications tend to be a lot less reliable, but some of the things are counterintuitive. When someone has actually physically exerted themselves or in a stressful situation, you might suppose that that would really make for a very good identification, say of a perpetrator.

But the evidence we have actually suggests the opposite. During those moments of stress, we actually can have our ability to later recall that individual impeded. And one of the things anecdotally that I certainly have found certainly speaking to individuals, is how often individuals who, for example, have been held up are very good at describing the gun, but very bad at describing the face. And of course that seems logical, I think when we are faced with a life or death situation to focus on the instrument of our potential destruction makes a lot of sense. But it’s catastrophic for a legal system which turns so often on those initial eyewitness identifications.

Preet Bharara:

Explain how the law, particularly in the courtroom deals with respect, treats memory as compared to what the psychology of memory tells us.

Adam Benforado:

Well, I think one of the problems is that we assume that when someone is finally called to the stand and is asked to identify the perpetrator in the courtroom and says, “I’m a 100% certain that is the rapist.” I think most human beings think, well, we can rely on that. That person has every incentive to get it right. They’re the victim after all. They have already done a photo array identification and they did a live lineup, and this is the third time. And they say that they’re a 100% certain, I think-

Preet Bharara:

Well, they have to be a 100-

Adam Benforado:

Right.

Preet Bharara:

It’s binary in that kind of identification system. You can’t say like you do with respect to a lot of things. I’m 90% certain I’m 85% certain. It’s either you’re certain or you’re not otherwise you’re not going to get put on the stand, correct?

Adam Benforado:

Absolutely. And actually, I talked to a criminal law professor who told me maybe a decade ago about a trial that he was actually called as a witness on, and the first time he actually said that he was 80% certain, he said, I was trying to be as honest as I could, and it resulted in a mistrial because of his honesty there.

Preet Bharara:

Well, the burden of proof… But there’s a reason for that. The burden of proof is beyond a reasonable doubt, which is higher than 80.

Adam Benforado:

And so if we go back to why this is so problematic in the example I was just giving, let’s go back to that initial photo array, individual brought in, and oftentimes this was a deeply traumatic moment, and people are standing around and they’re saying, “Is this person here?” A lot of individuals we know assume that when they’re shown a photo, the individual that the suspect must be there, the real perpetrator must be there, so they’re more likely to just pick someone to start out. Now, the thing that’s very damaging is when we have multiple procedures in that next live lineup, the very act of having previously seen and chosen someone can change our memory of that initial incident. And so there’s no way of knowing. We may be remembering the individual who attacked us or we may be remembering someone from that lineup.

And unfortunately, this type of contamination has been documented in both real world scenarios and in the laboratory. And I think one of the things that’s just shocking is both how reliant we are on the eyewitness and how it can actually corrupt other types of evidence. Once a, say, lab technician who is looking at a fingerprint knows that it comes from someone who was already identified by a witness, they’re far more likely to find a match. And so it’s not just that the problem is confined to the eyewitness identification part of a case, it can actually infect other evidence as well.

Preet Bharara:

I will be right back with Adam Benforado after this. Can we talk about false memory for a moment?

Adam Benforado:

Sure.

Preet Bharara:

Because I didn’t use to think that was a thing. This is an innocuous example. I worked in the Senate for Senator Schumer as listeners may know for four and a half years. And sometime after that, when I was in SDNY in New York, when Hillary Clinton was running for president, the vice presidential nominee was Tim Kaine, Senator Tim Kaine from Virginia. And someone asked me, do I know him? And I said, I don’t really know him well, but I remember him from the Senate and he’s a very nice guy. And I said a few sentences about my memory of Tim Kaine in the Senate.

The problem is Tim Kaine didn’t start serving in the Senate until 2013, and I left in 2009. And there was nothing at stake, I wasn’t trying to pretend to be a big shot that I knew the senator. I had confused my sense of Tim Kaine from TV and from the debates and from being a certain kind of person with my memory of seeing many, many, many senators all the time and the hallway and on the floor and chatting with Senator Schumer. Can you explain what went on in my head?

Adam Benforado:

Well, I think it’s the fact that our memories are easily corrupted. And again, as I said, the very act of remembering, placing things in context, retelling stories. This is one of the things I think listeners may recall in their own lives, how this can happen with your siblings as you age.

Preet Bharara:

Oh, I sometimes don’t remember if the thing happened to me or my brother.

Adam Benforado:

I have had the same thing. My brother was just telling a funny story the other day about how my favorite toy growing up was this pink Shire horse and my mom chimed in, “No, Nate, that was your favorite toy when you were younger.” And I think that oftentimes as we tell stories, I think Brian Williams got into quite a lot of trouble as he was telling a-

Preet Bharara:

Being fired upon.

Adam Benforado:

… war reporting story. And when I read that, I thought, this is not someone who is lying. He doesn’t have any incentive to do this. This is someone who is literally remembering something that never happened. And I can tell you a funny story. I had the good fortune of going to a conference in Italy a number of years ago with my wife, and after the conference, we went up to Lake Como and we went to visit this villa on the lake front. And I read in the guidebook, this was featured in the James Bond movie, Casino Royale. And I’m a James Bond fan, and I thought, oh, this is going to be wonderful. We go up to the villa, and when I first walked in with my wife, I said, “This is not ringing a bell.” But as we walked around and took the tour, I started to think, oh yeah, oh yeah, this is exactly the scene where this happened.

And then we went back that night back to the hotel and I said, “Oh, I just have to play the scene for you.” I played the scene and it turns out that there are two Italian villas in Casino Royale and the one that I was remembering was the other one that we didn’t go. But in real time, I saw myself recreating that memory of the movie to fit what I was walking around with. And again, in this situation, my wife already has doubts about the quality of my memory, no real harm done. But imagine if that’s a murder case, it can be absolutely devastating.

Preet Bharara:

You can’t have a system in which as a general blanket matter, we discount everyone’s memories, right?

Adam Benforado:

Yep.

Preet Bharara:

And in trials every day, both in the civil context and certainly in the criminal context, there are witnesses who testify to the time of day to what they saw, identifying other eyewitnesses, identifying people who were perpetrators, how they felt, what they did. All of those things are from memory. Basically a trial is a recitation often of people’s memories, so given these deficiencies in our memory, how on earth is a court system supposed to deal with that?

Adam Benforado:

Preet, you’re exactly right. And I just add one little aspect of that is that our memories can be absolutely incredible, absolutely incredible. I remember one time I was living in London. I had gone out drinking with a bunch of friends. I was taking the last tube back to the Angel Islington tube stop where I was living, and I was going up the long subway. And I saw this woman going down along the way, just a glance over. And I knew immediately that was Rashna. That was the girl who I really never talked to in high school, but who had briefly a locker next to mine, my freshman year of high school, recognized her immediately. This is over 15 years later, and that’s what’s remarkable. I was certain, and I was exactly right as I called out her name, she was there. And I think the message of people like me who are warning of the dangers of misidentification are not saying that memory is always terrible.

It is not. And it can be critical to actually closing cases correctly. The worry though is it’s very hard for us to sort out those bad dangerous moments from the good ones. And so in my opinion, I think we really ought to move toward systems which have fail safes, where really we’re never putting all of our cards in the same hand. And I think the other thing about it is relying more on things that allow us not to have to rely on human memory at all. And I think that’s one of the reasons that I think some of the use of videotape evidence can be really, really helpful. Unfortunately, since Unfair came out, I become more and more worried about the problems of deep fakes and the ability to actually create false photographic and video evidence. And I’ve also become more concerned about what I talk about actually in the book called Camera Perspective Bias. And this is-

Preet Bharara:

Well, that’s super interesting talk about that because people think if you have a video and it’s not been doctored, it’s the truth and the perception you have of what went on in the room has to be the same as if you were in the room and you point out an interesting reason why that might not be so.

Adam Benforado:

And so I think this is no surprise to any student of film that the camera angle can really change how you feel about the character and how you make attributions for different behavior. We have tested this. Psychologists have looked at this in particular in the context of interrogations. And the way that many of these studies have been set up is to put a camera behind the person being interrogated the suspect and a camera behind the interrogator. And what’s very troubling is both cameras obviously are capturing the same set of interactions, and it shouldn’t matter at all on the outcome and the outcome here being a determination whether this particular confession from the suspect was coerced or not, it shouldn’t matter at all which camera we see. And unfortunately though the camera perspective matters a lot and researchers believe the reason for that is that standing in the shoes of someone allows us to see things much more clearly from their perspective.

And so when we are standing in the shoes of the prosecutor or the interrogator rather, we tend to think that that particular confession is completely fine. But when we’re sitting in the shoes of the suspect, we suddenly see all of that impermissible pressure. Now, where this is, I think come up recently has been with the widespread adoption of lapel cameras for police officers. In the wake of some recent incidents of police brutality and tragic deaths of particularly black men. The, I think social justice community has come out and said, well, every cop should be wearing a camera. And I support that to a certain degree that it can allow us a way to see things that otherwise we would not know about, because oftentimes the person who is brutalized is dead. But the danger is that those lapel cameras are always going to be showing things from the perspective of the police. And when the key question is who started it, or was the particular suspect being violent or posing a lethal threat to the officer, seeing things only from the perspective of the officer is likely to powerfully distort our attributions.

Preet Bharara:

That problem is much more easily solvable in the interrogation room, you could have a camera set up that captures both people in the same frame, or you have a side by side with one angle and the other angle, hard to have an omniscient hovering drone with a camera above every police officer though.

Adam Benforado:

Although certainly certain societies, China, but also London, have made decisions to have far more cameras in public capturing interactions, which are then used in cases which offer a third party perspective. I think I would say that to me, the privacy concerns outweigh the benefits that come there. But I think that one of the things that we should really think about in any time we have used camera footage is to appreciate the perspective and to offer, I think, cautionary instructions to those who are watching it. I think offering supplemental perspectives wherever possible. If we have cell phone footage from a bystander and the police lapel camera, let’s make sure that we’re seeing both of those perspectives. I think that’s a way for us to control for some of these biases.

Preet Bharara:

Now, there are certain things that the law tries to do to correct for bias. For example, in the very garden variety case that you mentioned, the photo array and the lineup, right?

Adam Benforado:

Yeah.

Preet Bharara:

People who watch movies, if you watch movies or police procedurals, you see that all the time, so that someone says they have been robbed at gunpoint where they witness a robbery and they get shown what we call a six-pack, a photo array, six pictures of a man who is generally described. And if one of those men is black and the other five are white and the black man is fingered as the suspect, you would move to suppress that identification and you would absolutely win, correct?

Adam Benforado:

Right.

Preet Bharara:

Because of the bias that’s inherent in that. But as you point out at the time that a lineup happens, what’s a problem there that could be corrected for in terms of bias?

Adam Benforado:

I think there are best practices that are being slowly adopted. I think one of the great things about the eyewitness identification research is that it’s been done for decades. And so the Department of Justice has come out with best practices that can really help. I think little things that can make a difference. How about having the person who is the police officer who is actually conducting, whether it’s a photo array or live lineup, not know who the suspect is and who the innocent fillers are. That can make a big difference because we know that very, very subtle cues can powerfully influence the people who are brought in to make those identifications. Little things that you would think wouldn’t mind at all. Say that police officer, the witness starts to pick out the wrong person. The person who we know is an innocent filler, it’s a police officer, a fellow police officer standing in there.

It’s very common for that police officer who’s conducting a lineup to say, “Ma’am, actually we have plenty of time. Make sure you’re certain this is really important.” Now, you might think, well, what’s the problem with that? That seems truthful. He’s not saying don’t pick that individual, but witnesses pick up on those little cues. And so I think making sure that procedures are blind, that’s a principle from science that has been very successful. I think that is one that can make a real difference. I think another one that is also very logical is not doing multiple procedures, particularly I think the show up, which often seems so necessary in the moment banks just been robbed, suspects out. We have a witness. Let’s put them in the squad car and just drive around the neighborhood a little bit. The problem is that those are just so powerfully distortionary when you see an individual standing next to a couple of police officers and the police in the squad car saying, “Is that the person?” The weight of the world to say no is on your shoulders.

Preet Bharara:

But that’s admissible at the moment.

Adam Benforado:

It certainly is, and we see it in a lot of cases. When I was a clerk on the DC circuit, one of the first cases that I had was… We don’t get very many criminal law cases, but the first case that I had involved multiple identification procedures.

Preet Bharara:

You talk about something called a cognitive interview in the realm of interrogation. What does that mean and what does it do?

Adam Benforado:

Well, I think it’s important to understand first, how many interrogations occur in the United States still today. This is an area where I think things are changing, not as rapidly as I would like, but I think they are changing. The traditional model though of interrogation in the United States was you bring in someone that you suspect committed the crime, the interrogators bring the person in and they ask them a series of questions, and they observe often their body language, how they respond. Do they have jittery limbs? Are they doing what’s referred to as gaze aversion, not looking the cops in the eye and the police are meant to using their great expertise that they’ve gained over years, determine is this person lying? And if the person is lying, the next step is to switch to the interrogation part of the process in which the goal is not really to gain more information, it’s really to gain a confession. And so the main tools that have traditionally been used are maximization and minimization, which can be roughly like into the good cop, bad cop routine.

And what we know from research from psychology is that this can be powerfully coercive and that the individuals who are most vulnerable tend to be people with low IQs, people with a history of significant mental health problems and juveniles. And so from the research that we have from DNA exonerations, we know that false confessions are a really powerful driver of wrongful convictions. Now, in the book, I offer one potential way of addressing this, which is the cognitive interview. And this is a process that’s used much more in Europe, but I think is slowly making its way into police jurisdictions across the United States. And the goal here is to simply gather as much potential useful information as possible. It’s not to gain a confession, it’s not to push people into saying they did it. It’s to gain as much information, which then can be compared to all of the other information that is being gained from witnesses, from forensic evidence and from the individual themselves. People often when in these open-ended interviews contradict themselves in ways that prove to be very revealing.

Preet Bharara:

Well, there’s a reason why we have a certain procedure and we have certain rules in a courtroom with respect to direct examination, right?

Adam Benforado:

Yeah.

Preet Bharara:

You’re putting on a witness in direct examination who presumably is giving testimony in support of your side, your client’s side, and so you’re not allowed to lead the witness and you’re not allowed to use certain techniques to try to get the answers you want because they’re indicia falsehood when you do that. It stands to reason that the same kind of thing applies here, fair?

Adam Benforado:

I think that’s exactly right. But it’s understandable how we got to this point and why it has persisted. I think there is a general notion that when you’re dealing with bad guys, you can’t be nice. And by nice, I mean fair. You have to use every tool in your arsenal. And sometimes for someone who is a trained liar who has committed a horrible crime, well, you have to lie to them sometimes. You have to scare them sometimes. You have to sweet talk them sometimes, that’s how you get to the truth. And I think unfortunately, this is an area where our assumptions are wrong. I think this is a moment where we have assumed that that is necessary. We have assumed that that leads to better outcomes and it simply does not. I think anyone whose focus ultimately is ensuring that we get the people who actually committed crimes, and we make sure that no innocent people ever end up behind bars. I think you have to embrace the evidence.

Preet Bharara:

In my experience, the best cops and investigators and special agents that I spoke to and worked with and also wrote about in a chapter in my book about interrogations is that the method of rapport is always superior to the method of intimidation. And a very good interviewer once told me that the biggest obstacle to his getting the truth or getting something useful from a suspect or a witness was the fact that he was in a uniform and had a badge and a gun that he wanted people to forget they were a cop, as opposed to the common representation in movies and film, that that’s the thing that gets people to confess. No, that’s the thing that gets people to clam up.

Adam Benforado:

Absolutely. And I think it’s so hard though, this goes back to where we started. I think the law is so backward looking. We tend to think, well, the third degree worked. We got soft. I think there are a lot of Americans who think that. And I think, no, it didn’t work. It was not simply a moral atrocity. It was bad policing. And I think what’s cool though is after writing this book in particular, talking to more members of the police establishment who are embracing evidence-based justice, who want to know best practices, who are going and getting PhDs so that they can actually learn the ways to better keep us safe.

Preet Bharara:

I have about 800 more questions about this stuff, but I wanted to get to some other of your writings, including your more recent book, A Minor Revolution: How Prioritizing Kids Benefits Us All. And you say some things that if you don’t focus and read, all the nuance in your discourse are kind of eye-popping. And I don’t know if you’ve gotten that reaction, but explain for a moment what the point of the book is, how you think we’re not respecting the rights and autonomy of our children.

Adam Benforado:

I think this is something that really is for me, a lifelong project. And I think I was thinking about children’s rights when I was a kid and it certainly informed some of the questions that I was interested in. And in writing Unfair, I think I was certainly particularly interested in the impact of our criminal justice system on children. And so I think what this book is about, it does start with an incredibly bold idea. It’s the notion that to create the America that we all want, we need to put children first. And that’s because prioritizing children’s welfare. And by that I mean protecting them from harm, ensuring their needs, granting them standing voting power is the least costly and effective way to address the major social problems we face.

Preet Bharara:

To the parents of 15 and 16 year olds everywhere. Address to them your idea of lowering the voting age to 16 at a time when there’s at least one candidate on the Republican side and wants to raise the voting age to 25.

Adam Benforado:

Well, I think this to me is one of the major unfinished pieces of work from the civil rights movement. I think we did not include children back a 100 years ago when we were extending the right to vote to women. We did not include them more recently when we lowered the voting age to 18. And I think it’s really goes against the evidence that we have from psychology, which suggests that when it comes to cold cognition, that voting relevant cognition, there’s no difference between the average 16-year-old and the average adult. And so if your focus is on average capacity, that really doesn’t fly. Now, I would point out though that we don’t test capacity for adults. In fact, a more fair comparison would be what is the standard to take away an elderly person’s vote? And I will tell you, it is the bare minimum. If you understand how voting works, you get to continue to vote. And so again, I think it is outrageous that we lump all children together and disqualify them based on capacity that we don’t apply to anyone else.

Now, I think the usual response that I get after that is a grumbling acceptance, “I’ll look into that research.” I encourage you to do that. But at the very least, kids just don’t have the necessary experience with oppressing issues that America faces today. And I say, “Well, what are those issues?” “Oh, well, gun control, Trans rights, global warming, social media.” And I’m like, “Wait a second, let’s go through those.” I have two children in elementary school, they know what a lockdown drill feels like. They have friends who are gay. Gen Z is the most diverse generation we’ve ever had. Climate change. Think about having a stake in the game. Think about an 85-year-old versus a 10-year-old. That 85-year-old is not going to be here for all of those floods and fires from the social unrest that is going to be seen in the coming decades that 10-year-old absolutely is. And so I think really this is a story about the fact that kids are able, they have a stake and they ought to have a right too to have their voice heard in this country.

Preet Bharara:

Can you tell the story in brief of your fight for clean water or lead free water in Philadelphia? Because I thought… And then what you learned from that.

Adam Benforado:

This is really, I think a story about how the major threat I think to kids today isn’t from bad actors who set out to harm kids. I don’t think that’s why we are seeing rollbacks of child labor protections or the fact that child poverty just doubled between 2021 and 2022. I don’t think that’s why gun violence is the leading cause of death for those under 18. I think that these problems arise because of a heedlessness to children’s welfare, even from those who were directly charged with looking out for kids. And so this personal story, which I tell in the book started when my wife and I bought an 1860 Row House, a very bad decision for anyone who’s thinking of doing that in the future. And being a responsible father, I had a two-year-old, I noticed that there was a lead service line in the basement.

I called up Philadelphia water and I said, “Hey, can you come test this? I want to make sure that there’s no lead leaching out of the pipes that might be consumed by my daughter.” And the individual, representative from Philadelphia Water came tested things and beforehand he said, “Don’t worry, this isn’t like Flint here in Philadelphia we treat the water and so I know what the results are going to be. It’s going to be no detectable lead in the system.” And sure enough, I got the letter back, clean bill of health. My wife and I and daughter moved in, started drinking, bathing with the water. Now, a couple of months later, my father used to work at the Environmental Protection Agency and he said, “Hey, there’s this new cool startup that’s collecting data. Would you be willing to have them come and test your water even though you already did it?”

I did. And a month later I got a letter back and it said, “You have high lead levels.” And I thought, “How is that possible?” I honestly thought that they’d sent the letter to the wrong address. And as I poked around, I started looking at how the sampling had taken place, and I noticed that Philadelphia water, when they’ve come and tested my water, they didn’t actually test the water that had been sitting in that lead service line overnight. They tested the water that was in the non-lead tap, and then they let the water run for a full 10 minutes until it got the water out of the non-lead main.

Preet Bharara:

Which is what you always do when you get a drink of water.

Adam Benforado:

Exactly. It’s as if a child has a fever and you put the child in a cold bath for 20 minutes and then test to see if they have a fever. It makes no sense. Why would they possibly do that? Well, I did some more research and it turns out that the EPAs rules state that whenever a municipality comes back and has a certain number of their test sites coming back above the threshold for lead contamination, they have to actually pay for remediation. And so by not testing lead in the water, they can avoid costly remediation efforts. And I also learned shockingly, how is the EPAs level set? I assumed always that 15 parts per billion is the safe level of lead back in the seventies when they set this. That’s not the safe level of lead. The safe level of lead for children and adults is zero parts per billion. Why is it set there? The answer is that for decades, we built houses with lead pipes and if we set it at zero, we’d have to pay to rip out all of those pipes.

Preet Bharara:

What did you do? Did you move? Did you sue? Did you let it go? Did you stop drinking water and hydrate?

Adam Benforado:

Well, I will tell you I did two things. First of all, we paid $6,700 to get that lead pipe in the other lead solder joints in the house removed. And then I wrote a book about it because I want to change this for all of the families who do not have thousands of dollars to fix their lead pipes. And I want to also send a message to everyone who is out there going through the motions in protecting kids. If you work at Philadelphia Water, you ought to want to know how much lead anyone is ingesting particularly children. That’s your job and you ought to design tests that are as sensitive as possible.

Preet Bharara:

I had another professor on the show last week and we talked about the problem of poverty, and one thing he suggested might be worthy of consideration is something, we love czars in this country, the poverty czar. Do you imagine some such title or official or office who would deal with all the issues relating to children and their welfare?

Adam Benforado:

I absolutely do. In the book, I argue in favor of creating a new federal agency focused on the whole child, which could not only help coordinate the child impact assessments that I believe we should be doing as a standard part of writing bills and creating regulations, but could also help coordinate all of the child related work that’s currently spread across agencies. When it comes to something like lead, it implicates first of all children across the early lifespan. Second, it implicates a lot of existing agencies. You have your Department of Housing, lead paint is a major source of lead contamination. You have the Department of Justice, which deals with the effects of lead we know is linked to aggressive and sometimes criminal behavior.

It implicates the EPA, it implicates the Department of Education because children who are exposed to lead tend to have depressed test scores. And so I think this vision is actually in line with our history. Not a lot of people know, but in 1912, President Taft created the first federal agency in the world focused on the child. It was called the Children’s Bureau. And unfortunately, over this century we lost sight of that idea that all of us stand to gain when we invest in children and when we protect in children, the fate of our nation is really dependent on their education, their health.

Preet Bharara:

Wait, what happened to that office?

Adam Benforado:

Well, over time, its mission was hemmed back. Now it is within health and human services focused on a very, very narrow set of issues.

Preet Bharara:

I could talk to you forever, Adam, but we don’t have forever.

Adam Benforado:

Other days. I will be back and we can talk forever about children again.

Preet Bharara:

The two books are just to remind folks A Minor Revolution: How Prioritizing Kids Benefits Us All and from a few years ago, Unfair: The New Science of Criminal Injustice. Adam Benforado, thanks so much for your time.

Adam Benforado:

Preet, it’s been a pleasure.

Preet Bharara:

My conversation with Adam Benforado continues for members of the CAFE Insider community. In the bonus for insiders, we talk about how to combat the biases of jurors.

Adam Benforado:

I think we need to think creatively about ways if there are, say racial biases where the individuals don’t know the race of the witness or even the suspect. That’s the type of, I think, innovative thinking the legal system needs to be considering in the decades ahead.

Preet Bharara:

To listen and to get access to all the exclusive insider content, become a member at cafe.com/insider. That’s cafe.com/insider.

BUTTON

I want to end the show this week by talking a little bit about tragedy, comedy and solace. Since October 7th when Hamas terrorists killed 1300 Israelis and during the subsequent Israeli bombardment of Gaza and continued Hamas rocket attacks, we’ve heard from a lot of people, politicians, cultural commentators, activists, business leaders, and ordinary citizens representing a wide spectrum of views. Many of these statements have been on point, but many have also found the words wanting. Who would’ve guessed then that some of the most resonant and poignant grace notes would come from a comedian? A comedian best known for his brand of slacker comedy and his high profile dating life? That’s right. Comedian Pete Davidson last weekend hosted Saturday Night Live where he used to be a cast member and delivered a cold open that captured the human cost of the growing conflict in the Middle East. Davidson even acknowledged the surreal nature of his addressing such a tragic geopolitical situation.

Pete Davidson:

This week we saw the horrible images and stories from Israel and Gaza, and I know what you’re thinking, who better to comment on it than Pete Davidson.

Preet Bharara:

But Davidson reminded the audience that his father, New York firefighter Scott Davidson, died on September 11th, 2001, while bravely responding to the attacks at the World Trade Center. The younger Davidson was only seven at the time, and he highlighted during his remarks, the impact of violence on children.

Pete Davidson:

I saw so many terrible pictures this week of children suffering, Israeli children and Palestinian children, and it took me back to a really horrible, horrible place. And no one in this world deserves to suffer like that, especially not kids.

Preet Bharara:

And Davidson recalled that comedy was a bomb for him in the aftermath of 9/11 and losing his father.

Pete Davidson:

After my dad died, my mom tried pretty much everything she could do to cheer me up. I remember one day when I was eight, she got me what she thought was a Disney movie, but it was actually the Eddie Murphy standup special, Delirious. And we played it in the car on the way home. And when she heard the things Eddie Murphy was saying, she tried to take it away, but then she noticed something. For the first time in a long time, I was laughing again. I don’t understand it. I really don’t, and I never will. But sometimes comedy is really the only way forward through tragedy.

Preet Bharara:

On Sunday evening, I posted a video of Pete Davidson’s remarks on the site, formerly known as Twitter, and I was moved by the replies. One wrote of the cold open, “It was stunning. It’s like trying to strike the right tone after 9/11, and we left it on Pete Davidson’s shoulders. He did an amazing job.” Another said, “This is by far the most insightful thing I have heard from any famous person about the nature of grieving loss and humor.” And yet another wrote simply, “The medicine we needed to hear.” I have long believed that humor and comedy can be an incredible healer in times of grief. You may remember that on Stay Tuned, we hosted comedian Mike Birbiglia in the very early days of the COVID-19 pandemic, and Pete Davidson exemplified this truth so powerfully. Thank you Pete Davidson for that incredibly warm, cold open. Please stay safe this week and please try to find some laughter amid the pain.

Well, that’s it for this episode of Stay Tuned. Thanks again to my guests, Dan Senor and Adam Benforado. If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics and justice. Tweet them to me at Preet Bharara with the hashtag #AskPreet. You can also now reach me on Threads, or you can call and leave me a message at 669 247 7338. That’s 669 24 PREET. Or you can send an email to letters@cafe.com. I’m your host, Preet Bharara. Stay tuned.