3 Is drunken consent still consent? It has to be, the ruling goes on. Otherwise the vast majority of people happily having sex while drunk belong in jail alongside the small number of people for whom having sex while drunk constituted a criminal act. Besides, if M can say that she was not responsible for her decisions because she was drunk, why couldn’t Benjamin Bree say the same thing? The principle that “drunken consent is still consent,” the ruling points out, “also acts as a reminder that a drunken man who intends to commit rape, and does so, is not excused by the fact that his intention is a drunken intention.” Then the Bree ruling comes to the question taken up by California’s consent. What if one of the parties is really drunk? Well, how on earth can we decide what “really drunk” means? We don’t really want our lawmakers to create some kind of elaborate, multivariable algorithm governing when we can or can’t have sex in the privacy of our bedrooms. The judge concludes: “The problems do not arise from the legal principles. They lie with infinite circumstances of human behavior, usually taking place in private without independent evidence, and the consequent difficulties of proving this very serious offence.”
4 It is also, by the way, surprisingly hard to tell if someone is just plain drunk. An obvious test case is police sobriety checkpoints. An officer stops a number of people on a busy road late on a Friday night, talks to each driver, looks around each car—and then gives a Breathalyzer to anyone they think is drunk enough to be over the legal limit. Figuring out who seems drunk enough to qualify for a Breathalyzer turns out to be really hard. The best evidence is that well over half of drunk drivers sail through sobriety checkpoints with flying colors. In one study in Orange County, California, over 1,000 drivers were diverted to a parking lot late one night. They were asked to fill out a questionnaire about their evening, then interrogated by graduate students trained in intoxication detection. How did the driver talk? Walk? Was there alcohol on their breath? Were there bottles or beer cans in their car? After the interviewers made their diagnoses, the drivers were given a blood-alcohol test. Here’s how many drunk drivers were correctly identified by the interviewers: 20 percent.
5 In a remarkable essay in the New York Times, Ashton Katherine Carrick, a student at the University of North Carolina, describes a drinking game called “cuff and chug.” Two people are handcuffed together until they can down a fifth of liquor. She writes, “For the supercompetitive, Sharpie pens were used to tally the number of drinks on your arm, establishing a ratio of drinks to the time it takes to black out—a high ratio was a source of pride among the guys.” She continues:
The way we as students treat the blacking out of our peers is also partly responsible for its ubiquity. We actually think it’s funny. We joke the next day about how ridiculous our friends looked passed out on the bathroom floor or Snapchatting while dancing and making out with some random guy, thus validating their actions and encouraging them to do it again. Blacking out has become so normal that even if you don’t personally do it, you understand why others do. It’s a mutually recognized method of stress relief. To treat it as anything else would be judgmental.
6 Nor is it just a matter of weight. There are also meaningful differences in the way the sexes metabolize alcohol. Women have much less water in their bodies than men, with the result that alcohol enters their bloodstream much more quickly. If a 195.7-pound female matches a 195.7-pound male drink for drink over four hours, he’ll be at 0.107. She’ll be at 0.140.
7 Adults feel quite differently. Fifty-eight percent of adults think “drinking less” would be very effective in reducing sexual assault.
Part Four
Lessons
Chapter Nine
KSM: What Happens When
the Stranger Is a Terrorist?
1.
“My first thought was that he looked like a troll,” James Mitchell remembers. “He was angry, he was belligerent, he was glaring at me. I’m doing a neutral probe, so I’m talking to him basically like I’m talking to you. I took the hood off and I said, ‘What would you like me to call you?’”
The man answered in accented English, “Call me Mukhtar. Mukhtar means the brain. I was the emir of the 9/11 attacks.”
It was March 2003, in a CIA black site somewhere “on the other side of the world,” Mitchell said. Mukhtar was Khalid Sheikh Mohammed, or KSM, as he was otherwise known—one of the most senior Al Qaeda officials ever captured. He was naked, hands and feet shackled, yet defiant.
“They had shaved his head by that point and shaved his beard,” Mitchell said. “But he just was the hairiest person I’d ever seen in my life, and little, real little. He had a huge, like Vietnamese pot-bellied pig belly. I thought—this guy killed all those Americans?”
Mitchell has a runner’s build, tall and slender, with longish white hair parted in the middle and a neatly trimmed beard. He speaks with a mild Southern accent. “I look like some guy’s uncle,” is how he describes himself, which is perhaps overly self-deprecating. He gives off a sense of unshakable self-confidence, as if he always gets a good night’s sleep, no matter what he did to anyone that day, or what anyone did to him.
Mitchell is a psychologist by training. After 9/11, he and a colleague, Bruce Jessen, were brought in by the CIA because of their special skills in “high stakes” interrogation. Jessen is bigger than Mitchell, quieter, with a cropped military haircut. Mitchell says he looks like “an older [Jean-]Claude van Damme.” Jessen does not speak publicly. If you hunt around online, you can find portions of a videotaped deposition he and Mitchell once gave in a lawsuit arising from their interrogation practices. Mitchell is unruffled, discursive, almost contemptuous of the proceedings. Jessen is terse and guarded: “We were soldiers doing what we were instructed to do.”
Their first assignment, after the towers fell, was to help interrogate Abu Zubaydah, one of the first high-level Al Qaeda operatives to be captured. They would go on to personally question many other “high value” suspected terrorists over eight years in a variety of black sites around the world. Of them all, KSM was the biggest prize.
“He just struck me as being brilliant,” Mitchell recalled. During their sessions, Mitchell would ask him a question, and KSM would answer: “That’s not the question I would ask. You’ll get an answer and you’ll find it useful and you’ll think that’s all you need. But really the question I would ask is this question.” Mitchell says he would then ask KSM’s question of KSM himself, “and he would give a much more detailed, much more global answer.” KSM would hold forth on the tactics of terrorist engagement, on his strategic vision, on the goals of jihad. Had he not been captured, KSM had all manner of follow-ups to 9/11 planned. “His descriptions of the low-tech, lone-wolf attacks were horrifying,” Mitchell said. “The fact that he sits around and thinks about economy of scale when it comes to killing people…” He shook his head.
“He completely creeped me out when he was talking about Daniel Pearl. That was the most…I cried and still do, because it was horrific.” Daniel Pearl was the Wall Street Journal reporter kidnapped—and then killed—in Pakistan in January 2002. KSM brought up the subject of Pearl without being asked, then got out of his chair and demonstrated—with what Mitchell thought was a touch of relish—the technique he had used in beheading Pearl with a knife. “What was horrific about it was he acted like he had some sort of an intimate relationship with Daniel. He kept calling him ‘Daniel’ in that voice like they were not really lovers, but they were best friends or something. It was just the creepiest thing.”