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Tuesday, September 20, 2016

Is It Ever Okay for a Government Agent to Lie?

Most people would say that private individuals should not make "lying for the truth" a part of their normal habit. If one has to expect that every journalist, confessor, doctor, or lawyer might be a federal agent, what kind of society are we going to have?

My in-laws finally started watching Breaking Bad. Their binging has taken them to the finale in just under two weeks. Impressive.

So, I was at their house re-watching the episode where Hank, a federal DEA agent, interrogates Saul Goodman’s bodyguard. Hank fools him into spilling information on Walt by holding up a staged photo of Jesse’s head next to a bloody mess of raw meat. Hank calms the bodyguard by saying he is not a suspect in conspiracy for murder, flashing the photo of Jesse without comment.

Should private individuals make “lying for the truth” a part of their normal habits?Jesse was, of course, not dead. It was a ruse to put enmity between Walt and the bodyguard, and to scare him into thinking Walt was a killer (which he was… just not in this case).

For all the ambiguity of Breaking Bad and its cadre of morally complex personalities, in the end, Hank comes as off as the least morally ambiguous. But he is also a big fat liar. Set aside what you think of federal drug laws – personally, I considered Hank, in many ways, as much a part of “the problem” as Walt. Just take for granted that Hank’s work really was pure as the wind driven snow. Does that mean he gets to lie and deceive his way to the truth?

Is there a noble lie?

The Ends Justify the Means?

It is, in the first place, a moral question. Forget that Hank is a DEA agent: should private individuals make “lying for the truth” a part of their normal habits?

I can’t imagine that any non-sociopath would answer in the affirmative. As for moral philosophers, Saint Thomas Aquinas was rather unequivocal in the Summa Theologica, insisting that every lie is a sin. Immanuel Kant generally agreed.

Other philosophers have debated relevant exceptions to this universal social prohibition on dishonesty. Some have argued that dishonesty can be necessary in the face of a threat or duress, that one might lie to a liar, or that one might lie to someone who has no right to the truth (more on that in a moment). And what about casual white lies concerning flattery, bargain shopping, or friendly excuses to avoid hurt feelings? These are dicey questions.

Undercover Journalism

Journalists and whistleblowers are no strangers to this ethical debate. Undercover sting operations, sometimes involving use of false aliases, raise serious ethical concerns. No doubt intrigue and deception can be useful tools for sniffing out abuse, corruption, and conspiracy. But to what end, and to what risk of a journalist’s credibility?

“No one is bound to reveal the truth to someone who does not have the right to know it.”In recent years, the Center for Medical Progress (CMP), a pro-life media organization, has come under heat (and indictments) for using false aliases in its undercover sting against Planned Parenthood. CMP’s founder, David Daleiden, was indicted in Harris County, Texas, for using a fake driver’s license (a misdemeanor) to pass himself off as an executive for a biomedical company. Daleiden filmed his conversations with Planned Parenthood employees, in which they appeared to discuss the sale and purchase of fetal tissue (a felony).

The polarizing subject-matter of the sting made any serious debate about journalistic ethics nearly impossible. In order to evade the topic, many on the pro-choice side did a No True Scotsman and declared Dalieden an unjournalist. Problem solved! Off with his head! (I wonder what these arbiters of “true” journalism think of requiring journalists to be licensed?)

There was, however, a fascinating ethical debate among pro-life Catholics – who were taken for granted as being universally supportive of CMP. In fact, CMP’s affiliation with the pro-life movement, and Daleiden being himself a Catholic, led to a firestorm in the Catholic blogosphere.

Although Catholics tend to oppose abortion, they also oppose deception. Many critics of CMP cited the apparent universal proscription of all lying, articulated by Saints Aquinas and Augustine. Others were more sympathetic to Daleiden, and cautioned against a simplistic view of Christian theology. These heated debates even addressed biblical examples of righteous deception (like the Hebrew midwives in Exodus lying to the Pharaoh to protect Hebrew babies), before taking a flying leap into whether one should lie to Nazis to hide “your Jews.”

It turns out Godwin’s Law still hasn’t made it into the Catechism. Although, this has: “No one is bound to reveal the truth to someone who does not have the right to know it.”

Actually, that is a very important moral clarification – for journalists, for people hiding Jews, for people in business negotiations, and for lawyers playing hardball against an adversary. Although one has a moral obligation to be truthful, not everyone is entitled to full disclosure of every fact.

Federal Agents Are Not Journalists

But Hank was not just a private citizen, and he certainly was not a journalist. In fact, if he was a private citizen or journalist, his lies would have legal consequences: fraud is illegal, and David Daleiden was indicted for falsifying a document. In addition to being ethically complicated, dishonesty is risky business. And it should be.

But Hank’s lie carried the full force and weight of the federal government, and perhaps qualified immunity. At least, to the extent his lying was formally authorized.

If one has to expect that every journalist, confessor, doctor, or lawyer might be a federal agent, what kind of society are we going to have?Well, this week, an inspector general report revealed details about the FBI’s official policy of posing as journalists in undercover sting operations.

Last year, the Associated Press (AP) sued the FBI after learning that the bureau was impersonating AP reporters. The FBI sent a teenage suspect a link to a fake news story. The suspect clicked on the link, inadvertently downloading FBI surveillance software.

I suppose we are supposed to take solace from FBI Director James Comey’s assurance of “proper and appropriate” procedures for such tactics.

Is that all James Comey does by the way? Sit around and conjure up vacuous new legalisms that mean nothing? What happens if the FBI exercises its “proper and appropriate” techniques with “extreme carelessness”?

When journalists and whistleblowers use false aliases to gain access, there are admittedly ethical concerns. Journalists are among the first to admit this. There might also be legal and criminal consequences.

Thus, journalists who care about their reputation will tread lightly, and exhaust every means to safeguard their personal integrity, and professional credibility. But when the FBI does this, with impunity, there are Constitutional considerations. Namely, in that it will chill speech, and interfere with the important work of journalists and others in positions of trust.

How long before FBI agents gain access to confessionals by posing as priests, or set up phony law firms to lure in criminal defendants?

If one has to expect that every journalist, confessor, doctor, or lawyer he is talking to might be a federal agent, what kind of society are we going to have?

  • Thomas Smith is an alumnus of Berkeley and Pepperdine Law, and a corporate attorney.