When the former communist bloc disintegrated, the opening of secret police files in several European countries demonstrated the incredibly thorough hold that the clandestine state had possessed over ordinary citizens. In East Germany, for example, State Security (Stasi) files revealed the existence of vast networks of control and surveillance in any area of life that might have produced dissidence or anti-state activity. The whole society, it seemed, had been founded on a culture of mutual suspicion and denunciation, which overwhelmed any existing bonds of family or friendship. For Westerners, the exposure of the Stasi files has enhanced still further our post-1989 triumphalism, the sense that the Cold War was indeed a moral confrontation on the lines long presented by hawks and Reaganites, and earlier attempts to argue for a “moral equivalence” between East and West have become wildly unfashionable. Already, there is an emerging postcommunist literature comparable to earlier works on fascism, studying the pervasive moral corruption of totalitarian states.
The United States does not have a Stasi, and comparisons may seem inappropriate. However, the last three decades have witnessed quite dramatic changes in the practices of law enforcement in this country, especially at the federal level, all of which tend toward an unhealthy and undemocratic emphasis on covert policing, with all that implies in terms of “stings,” provocateurs, entrapment, denunciation, and mutual betrayal. Perhaps the most disturbing thing about these trends is that they have been so readily accepted without widespread discussion; they have not led to any significant public debate. With a few notable exceptions, like Gary Marx’s fine study Under Cover (1988), covert policing has made little impression in the scholarly literature on either criminal justice or political science. Yet there now exist clandestine state apparatuses that pose real dangers to the political and judicial framework of this nation.
The idea of using spies and infiltrators against political opponents or subversives was already an ancient tactic when the United States was founded, but it was perfected here in the 19th century by the Pinkerton detective agency in its confrontations with Confederate spies and Union terrorists. More recently, the FBI became the leading practitioner of infiltration into suspect groups, with communist and other leftist organizations as the chief targets. In the mid-1970’s, a series of journalistic and congressional investigations exposed a pattern of flagrant and widespread illegality in the operation of schemes like COINTELPRO, the FBI’s Counter Intelligence Program, and the CIA’s MK/ULTRA. The “black bag” tactics employed in such ventures were less shocking to public opinion than the targets, which represented a broad cross-section of the liberal and radical left, virtually none of which had any significant contacts with the Soviet-bloc spies cited as the major justification for these measures.
From the mid-1970’s, federal justice agencies became far more conscious of the legal environment in which they were required to operate and turned their attentions to targets that attracted little public support, including drug dealers, corrupt politicians, and labor unions penetrated by organized crime. For the general public, the first fruits of the new policy became apparent in 1980 with the exposure of the ABSCAM “sting,” a critical venture that conditioned popular attitudes and expectations for years to come. Briefly, suspicions of organized crime influence in New Jersey casinos led to a scheme in which the FBI hired a con-man to pose as an Arab sheikh seeking to invest in Atlantic City (hence “Arab-scam”). The plan succeeded beyond the wildest expectations of its sponsors, and the putative sheikh was courted by many of the most powerful politicians in the middle states. Ultimately, a U.S. senator and five representatives were prosecuted, and a dozen other congressmen were left to breathe sighs of relief.
ABSCAM established the stereotypes for all succeeding cases: the daring and almost humorous elements of the plan, with the “sting” term borrowed from the 1973 movie starring Paul Newman and Robert Redford; the melodrama of the confrontations with the politicians, depicted as greedy betrayers of public trust; and the memorable visual imagery of grainy films showing the transfer of bags of unmarked cash. The whole operation had an undoubted populist appeal that carried over to subsequent enterprises, in all of which the “stingers” and infiltrators were heroes. Stings proliferated during the 1980’s, with MIPORN, LILREX, AZSCAM, among others, an increasing number of which were mounted by state agencies. The range of targets expanded to include white-collar and corporate criminality, with FBI infiltrators posing as futures traders or representatives of defense contractors.
Such tactics have often been successful. Mafia families in particular have been disrupted in most major metropolitan areas, and virtually all successful anti-drug operations rely on either stings or infiltrators. Undercover tactics have thus produced an impressive haul of malefactors, in circumstances where their guilt is clear for all to see. Such methods are perhaps the only ones that have any chance of succeeding against a crime that is ultimately based on mutual consent and in which neither party will complain to the authorities. Prostitution offers a classic example; the absence of a victim is used to justify the common practice of having policewomen pose as prostitutes in order to elicit illegal invitations from potential clients.
Morally, a great gulf separates the horrors of the Stasi files from the activities of a local American vice squad, but there is still much that is troubling in recent developments, especially in cases where legislators have been targeted. At the most obvious level, prosecutorial decisions are made by a U.S. Attorney, and people in this position almost always have strong political connections in addition to ambitions of their own. Prosecutors have at least the potential to destroy or discredit their rivals. In the ABSCAM case, it was alleged that the decision to target politicians in this particular area reflected the Carter administration’s desire to subvert potential supporters of rival candidates in the forthcoming presidential primaries. This charge was apparently without substance, but the opportunity for selective investigation and prosecution is perilous.
Nor need the political implications involve such grand national divisions, as is suggested by the case of Michael Matthews, former mayor of Atlantic City, New Jersey. During the 1980’s he was regarded as a close friend of the local Mafia family and thus became the target of an FBI sting operation in which he was caught attempting to extort money from a dummy corporation. So far, this appears to be a simple case of detection and punishment, but the next stage of the case was extraordinary. Government prosecutors offered Matthews immunity from punishment if he would agree to continue in office as a government informant and to gather incriminating information against his mob allies. In order to encourage him in this venture, prosecutors told Matthews of another New Jersey officeholder who had made a similar deal. We know about these transactions only because Matthews declined the offer and went to trial, but just how many other politicians and officeholders have been placed in a similar position and accepted the blandishments of a U.S. Attorney? Are they still “in place” today, serving the interests of the Justice Department while deluding their electors into thinking that they are fulfilling their proper mandates?
Equally instructive is the case of the former head of the Teamsters union, Jackie Presser, who from 1977 to 1986 was a valued FBI informant. At this time, the Teamsters were a powerful force in national affairs, as one of the few major unions to support the Republican Party, and a generous source of political donations. The FBI agent in charge of this case has said that direct contact with Presser ended in 1983 when he formally ascended to the presidency of the union, on the praiseworthy grounds that subsequent links would be politically improper. Were there other cases in which the controlling agents were not so fastidious and some or other law enforcement agency has in effect been directing the political fortunes of a union or political party, a business or church? And would we know if this were the case? Judges and lawyers constitute another recurrent target of recent covert policing endeavors, and compromised judges and attorneys have been recruited to entrap and incriminate their colleagues, even to “wear a wire.” Imagine such a judge, dependent for professional survival on government goodwill, and ask if he or she would be immune from government pressure in any case in which the stakes were sufficiently high.
Apart from the political implications, there are serious dangers implicit in the basic assumptions of clandestine policing, issues that never emerge in the media romanticizations of the heroic undercover agent. It takes remarkable fortitude to maintain a fictitious persona day in and day out for a period of months or years, and the psychological trauma to the individual agent can be severe and lasting. In the early I980’s, one of the most significant anti-organized crime infiltrations ever mounted was utterly wrecked when the agent responsible for the MIPORN (“Miami Pornography”) investigation suffered a breakdown from his attempt to lead such a double life. To quote the title of the book on the case, he was Lost Under Cover, a common phenomenon.
Furthermore, to be an infiltrator or a defector in place requires participation or at least acquiescence in illegal activities, which therefore proceed with the knowledge and consent of law enforcement agencies. Lesser evils are permitted by these agencies ostensibly for greater public benefits, but the “lesser evils” often appear quite substantial in their own right. We know in retrospect that in the late 1960’s, law enforcement agencies were effectively controlling a substantial portion of the illegal drug traffic in major cities like New York, with narcotics officers distributing drugs on the streets in an attempt to penetrate illegal organizations. Usually, favored dealers were employed as intermediaries. They received drugs, which they sold, and supplied information to their police controls. Some, but only some, of the drugs issued were reclaimed on arrest; the remainder often passed to the dealer as payment. Unless the natural laws of bureaucratic dynamics have been repealed, it is certain that a similar pattern exists today in the urban cocaine trade. This model is scarcely prepossessing, even if we assume that all the police officers involved in the operation are of the highest integrity; the temptations for vigorous “meat-eating” corruption are clearly present.
The same dangers apply to the whole system of police informants, who are customarily allowed to get away with anything short of murder so long as they deliver a sufficient quota of less fortunate criminals to their handlers. Approved informants, state-licensed gangsters, have been known to set up criminal operations to have them detected and broken by police, so that police and informants will share benefits in the form of official praise and reward money. Any shrewd police officer knows that the safest way to secure wealth from office is judicious use of provocation to generate reward money and not the flagrant and risky drug ventures that make the headlines. Recent police scandals in Western Europe have evoked the cynical assessment that a “good” police department is one that solves more crimes than it generates.
It is all too easy for informants to turn into provocateurs and to generate problems at least as serious as those they were put in place to resolve. There is a classic example of this in the history of the secret police of Czarist Russia, the Okhranka, which so penetrated dissident opposition groups that police agents effectively controlled and directed terrorist campaigns. Uncontrollable agents reinforced their credibility by undertaking ever more daring and savage operations, including the assassination of politicians and the widespread destruction of property. By 1914, half the state apparatus was attempting to solve the crimes perpetrated by the other half. This bizarre double world, this wilderness of mirrors, is often found in intelligence and counterespionage, though it is little appreciated outside the profession. In the 1970’s, a British newspaper polled serving and former intelligence operatives about which fictional work best captured the spirit of their profession, presumably expecting a chorus of praise for Tom Clancy, John le Carre, or even Ian Fleming. The answer, however, was G.K. Chesterton’s little-read The Man Who Was Thursday, a phantasmagoric Edwardian novel that depicts a battle between the British police and the leadership of the Supreme Anarchist Council. It soon becomes apparent that all the soi-disant anarchists are in fact police officers, and vice versa, and the same mysterious figure “Sunday” freely manipulates both sides.
If this seems like fantasy, it is useful to recall some events closer to home, such as the spectacular case in the 1980’s that began with Frank Varelli, who was employed by the FBI to investigate the possible subversive groups opposing American policies in Central America, groups such as the Salvadoran solidarity organization CISPES. The ensuing investigation was required for bureaucratic reasons to posit a terroristic threat, as only imminent danger of this kind justified the suspension of congressional controls on intelligence gathering, and there were even spurious reports of a plot to assassinate President Reagan at the 1984 Republican Convention. By this point, about half of the FBI’s field offices were involved to a greater or lesser extent in investigating and combating these imaginary menaces.
Nor is the CISPES case a rare event in American history. It is not quite certain if the Ku Klux Klan and their neo-Nazi allies have ever achieved the status attained by the U.S. Communist Party in the I950’s, when over half the membership was reporting directly to some government agency or other, but they came close. Such close affinities can probably be blamed for most of the conspiracy theories in our history. When there is a terrorist outrage or an assassination, it is likely that some official agency will have had a suspect group or individual under surveillance, or might have penetrated the group concerned. To avoid charges of complicity or negligence, the agency is likely to go to great lengths to conceal this connection, thereby exacerbating matters by raising questions of a cover-up and by drawing suspicion that it had some responsibility for the atrocity. This is the most probable explanation for bizarre official actions in cases like the Greensboro massacre of anti-Klan demonstrators in 1979, as well as the Kennedy assassination.
In matters of terrorism, covert policing poses insuperable dilemmas. Official agencies must attempt to infiltrate potentially troublesome groups, and agents must establish their credibility by participating in dangerous or criminal actions. But where and when must the line be drawn between joining such activities and actually promoting them, or indeed permitting terrorist actions to occur? The group that probably carried out the bombing of Pan Am Flight 103 had long been penetrated by an agent reporting at least to the Jordanian secret service and probably to the Germans, while more recently the World Trade Center bombing in New York City has revealed a complex network of double- and triple-agent operations. At the least, it appears that the terrorist group was thoroughly penetrated by an agent of the Egyptian government and the FBI, who had long known that bomb attacks in New York were planned, though preventive measures were never taken. The CIA recruited and trained the terrorists, the FBI spied on them, and they still managed to come close to toppling one of the twin towers. It would be wonderful to think that when the full story of the World Trade Center case is known, it will trigger a long overdue public inquiry into the morality and effectiveness of covert policing and counterintelligence, but realistically speaking, hopes are not high.
When such issues do emerge in public debate, it is in the context of some high intrigue such as a terrorist act or an assassination, but this conceals the extent to which we have accepted the principles of covert policing, denunciation, and secret informants in our everyday lives. Often, the “wedge” that justifies such intrusions comes in the form of a particularly heinous or unpopular type of crime or social menace, against which we are told that any countermeasures are appropriate. The vast majority of us will never suffer the consequences of an antiterrorist operation gone wrong or be entrapped in an organized crime sting. On the other hand, we are beginning to travel the information superhighways, and the government has told us that we cannot communicate information free from official surveillance, the rationale being the “ultimate evils” of drugs and money-laundering. Our children go to schools where they attend compulsory anti-drug agitprop, in which they are encouraged to denounce friends or family members “for their own good.” Schools and media spread the same Orwellian message about evils like child abuse, and in both cases denunciation is facilitated by the ever-growing net of anonymous “hot lines” and “tip lines.” Among the most popular shows on television are true-crime programs in which viewers are invited to assist the police by denouncing offenders. Initially, the targets were egregious serial killers or terrorists, but now the electronic vigilantes are urged to search for child-support defaulters, petty thieves, and even city sticker violators. We are not too far from the day when those who utter politically or ethnically injudicious remarks will similarly be denounced before the enraged masses.
Hot lines and clandestine denunciation have become so entrenched in American culture that we are starting to consider them from a European perspective. Most Continental European nations derive their legal principles from the authoritarian traditions of Roman law, but they have also experienced totalitarianism or occupation, often both. Consequently, nations like France and Germany have a visceral cultural antagonism to the encouragement of denunciation. In France, hot lines, rewards, and wanted posters were virtually taboo after 1945, as they raise too many memories of earlier calls to hand in Jews or Resistance fighters. They only reappeared at the height of a singularly bloody terrorist campaign in the mid- 1980’s, and they have never been fully accepted. American police officers seconded to Germany have been appalled at the seriousness with which their counterparts take legal restrictions against wire-tapping and electronic eavesdropping. Partly because they never suffered occupation, the United States and Britain are unusual among Western countries in their desire to turn ordinary citizens into police auxiliaries and communal block wardens.
The American culture of denunciation might not be susceptible to thorough reform in the near future, but might we not at least consider limiting the worst potential abuses? One vital step might be a prohibition on official agencies taking action on any form of anonymous information, without external corroboration. Alternatively, the new technology of telephone-caller identification raises the hope that we might soon see the regular publication of the identities of all public-spirited citizens who regularly turn in their friends and neighbors for drug use or possession, child abuse, elder abuse. Sabbath-breaking, battering, or whatever the vogue offense of the hour might be. It would be helpful if films and television programs would rid themselves not only of excessive violence, but of romanticized and heroic depictions of the spy, the defector, and the eavesdropper.
But ultimately, these changes would be no more than palliatives. What we need is a fundamental reexamination of our priorities in dealing with criminal and deviant behavior and a reconsideration of whether the remedies proposed for issues such as drugs and public corruption are not worse than the disease. We need to reemphasize the absolute need to respect privacy and personal communication, except where serious public interests are genuinely at stake. We must assess the value of obedience to law when that is maintained chiefly or solely by the constant fear that anyone we deal with may inform the authorities of our peccadilloes, and ultimately we must question whether a democratic system can be based on mutual fear and suspicion.