In Defense of Deceit

Jim Comey, seventh director of the FBI, took his case to the public in a letter to the editor of the New York Times.

We do use deception at times to catch crooks, but we are acting responsibly and legally.

That technique was proper and appropriate under Justice Department and F.B.I. guidelines at the time. Today, the use of such an unusual technique would probably require higher level approvals than in 2007, but it would still be lawful and, in a rare case, appropriate.

By Comey’s hand, he defines lawful as approved by the Department of Justice and FBI.  To put this less tactfully, it’s lawful if he says it’s lawful.  It’s the executive branch Nixon answer, that the president can commit no crime because he’s the president.

Every undercover operation involves “deception,” which has long been a critical tool in fighting crime. The F.B.I.’s use of such techniques is subject to close oversight, both internally and by the courts that review our work.

It’s true, and disturbing, that Comey so blithely says that deception “has long been a critical tool in fighting crime.”  Indeed, this is a mantra of law enforcement, repeated by the courts with regard to subterfuge, particularly snitches, where the propriety of conduct by the government, and its influence on making people, some criminally-bent and some otherwise-lawful, do bad things.

Judges, in reviewing government conduct, are often inclined to sigh and fall back on the mantra.  Sure it’s effective. So would be routinely raiding houses at random or blindly rousting people on the street, if effectiveness was the sole criteria for propriety.  The question is where the line should be drawn, and there is precious little guidance from the courts, bending over backward not to let a bad guy walk.

But comparing the use of deception in “every undercover operation” with what is complained of here is pandering to fools.  Jim Comey is a very smart guy, and so I credit him with knowing what he did in his letter.  He conflates pedestrian deception, as commonly used in undercover work, with the usurpation of specific identities without consent. The question is line drawing, not generic deception.

Similarly, Comey plays the anecdote game, showing how the bad the dudes were to justify the methods employed.  Of course, if the methods are acceptable, then the degree of bad is left to law enforcement to approve, and while they may be really bad dudes today, they may not be tomorrow.  Or maybe we’re too late, as the revelation of some instances doesn’t preclude the possibility that it’s being done routinely already. We just don’t know about it yet.

Taken to the next, not terribly extreme, level, consider what it would mean if Mark Zuckerberg was an FBI cooperator, and Facebook was an FBI operation. I’m not suggesting he is, but then, if he was, we wouldn’t know about it.  Consider what it would mean for privacy in our society, for constitutional rights, if every word and image on Facebook went straight to the FBI, and it was all perfectly lawful because third-party doctrine and, well, we willingly handed it to them.

Or consider what it would mean if the identity taken by the FBI, assuming for the important purpose of getting some really bad dudes, was yours. And you woke up one morning to find your name, pictures, kids, contacts, business, fed to some violent cartel because it served the government’s purpose, and you were the perfect identity to use to infiltrate.  Nobody asked you if you were willing to put your kids’ lives at risk. Or yours.  Still cool?

And then there is the government using the property of a guy, his business, as part of its undercover operation, like they did with Craig Patty.  They had the permission of Patty’s employee, who was a cooperator, but the tractor-trailer they wasted, the business they involved, was Patty’s. Nobody asked Patty.

As Marcy points out at Empty Wheel, the instances we know about are fortuitous:

Now, the reason the press picked up on this story is because the well-heeled defendants have superb lawyers who wrote a brief that is both engaging and chock full of evidence. The brief starts by laying out the stakes that matter for you and I, even if in this case they affect a bunch of Malaysian men who may have ties to Asian organized crime.

Jim Comey thinks the press shouldn’t report on this until after the government has had its shot at rebuttal? Does he feel the same about the army of FBI leakers who pre-empt defense cases all the time?

While the asynchronism of the government’s issuing self-congratulatory press releases for its glorious victories over crime, in advance of conviction, makes Comey’s chastisement of the press hypocritical when it reveals the government’s more dubious operations, the problem goes far deeper than mere hypocrisy.

Comey, as the glorious leader of the FBI, argues that it gets to make its own rules, and conceal them from us and perhaps the courts, and the media’s revelation of deception of a different, far more nefarious, nature, is improper as it undermines his efforts.  Marcy appears to accept Comey’s premise that this is all lawful, even if hypocritical and unwise.

Indeed, it’s easy to confuse the fact that the FBI, a wing of the executive branch, gets to decide for itself what conduct its allowed to employ, based upon subsequent denial of suppression by a court. But that isn’t necessarily so.  There is often a huge gap between the remedy of suppression and the legal issues of standing and good faith, both of which may defeat a defendant’s motion without offering any legal basis to approve the government’s deception.

But then, from Comey’s perspective, if government deception is effective and they get away with it, isn’t that good enough?  Now go, update your Facebook status. You know you want to.


5 thoughts on “In Defense of Deceit

  1. Marc R

    Getting Goldstein involved is certainly a great start. Not sure who was the primary author but what a great brief.

    1. SHG Post author

      While they could certainly do worse than Goldstein, I found Marcy’s description kinda bizarre, and have some doubts that he’s the right guy for the job. Crimlaw is not his forte.

  2. John Barleycorn

    The “rewind button” in certain formats is now instantionious but I have the sneaking feeling it may soon no longer exist at all in certain formats.

    “Update” What a novel concept.

  3. K R

    The NYT Magazine has a story about the FBI’s surveillance of Martin Luther King, which contains this line:

    “The current F.B.I. director, James Comey, keeps a copy of the King wiretap request on his desk as a reminder of the bureau’s capacity to do wrong.”
    (What an Uncensored Letter to M.L.K. Reveals, Beverly Gage, Nov. 11, 2014)

    A reminder or a template?

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