Why would drivers buy radar detectors if they didn’t intend to exceed speed limits? Why would students patronize websites selling term papers if they didn’t plan to plagiarize? Why would taxicab passengers specially request blank receipts if they didn’t propose to cheat on their expenses?

You’ll hear excuses, of course: “It just reminds me not to speed.” “I’m only using the site for research.” “It’s quicker than having the cabbie fill it in.”

All of these can sound reasonable — sort of — when you’re mired in the details, down there in the weeds of rationalization. But come on. From the 50,000-foot view, there’s not a lot going on but plain, old-fashioned chicanery. Let’s admit that each of these actions, perfectly legal in themselves, almost always supports an illegal or unethical intent.

To this odd list we can now, as of last week, add another example: Why would White House officials agree to testify to a congressional committee — but only without permitting any transcript of their testimony, and not under oath — if they didn’t intend to deceive?

Sure, when you get down into the political and constitutional weeds, the controversy over the recent firing of eight U.S. attorneys by the Justice Department can be explained. President George W. Bush’s resistance to the congressional investigation of this matter is part of a broader effort to reinforce the authority of the presidency, which he feels has been eroded since Watergate. That authority, as expressed in the concept of executive privilege, has an important role in the balance of power between Congress and the White House. Akin to the fabled attorney-client privilege, executive privilege allows presidents to solicit frank and unvarnished advice from aides who don’t have to fear that their opinions will be wrested later from them by a congressional committee unhappy with a president’s decisions.

It’s a potent privilege, but it’s not absolute. When the Supreme Court overrode it with a unanimous 1974 decision ordering president Richard Nixon to turn over Watergate tapes to a special prosecutor, chief justice Warren Burger made it clear that the court was looking only at that particular case. It was not concerned, he wrote, with broader questions of “the balance between the president’s generalized interest in confidentiality” and “Congressional demands for information.”

That language, however, neatly points up the right-versus-right nature of the current debate on the firings. The dilemma lies between the compelling moral arguments for the president’s “interest in confidentiality” and the equally powerful moral claims for Congress’s “demands for information.” As a nation, we’re torn on this one. We want our decision makers to have access to private, back-channel conversations that remain off the record until some distant archival future. Anyone who thinks otherwise need only consider the damage to democracy done by relentless open-meeting laws requiring state and local officials forever to grandstand for audience applause, rather than permitting them to deliberate, sometimes privately, for the public good. But we also want information, especially when power and pride conspire to keep it hidden. Anyone who thinks otherwise need only read up on the Nixon years and the Vietnam era.

But by what logic does this current ethical dilemma lead to so curious a compromise on top-level testimony? The Justice Department already has allowed some of its staff to testify under oath and on the record. It also has provided thousands of pages of documents related to the firings. Why would the White House allow some of its highest-ranking officials — the president’s chief political advisor, Karl Rove, and Harriet Miers, the former White House counsel — to participate only in “informal conversations” with congressional committee members, while lesser-known individuals have to abide by a tougher standard? One excuse — that an antagonistic Congress might turn these hearings into a show trial — may have merit, although the public surely understands that in order to protect confidentiality, those being questioned have the right to refuse to be drawn into certain lines of questioning.

For an administration struggling to retain the public trust, this compromise sends sorry signals. It says, “We don’t want to be held accountable for speaking honestly. If you later quote us, we want to be able to say, ‘I never said that.’ We want it all left in the he-said-she-said realm, without a transcript to back you up.” More important, it says that while lower-level officials are held to account for truth-telling, the nation’s top leadership is not.

That’s the most damaging message. Wherever you go these days to inquire about successful ethical standards and practices — whether to corporations, schools, nonprofits, government agencies, military organizations, or the professions — you hear four words: tone at the top. Nothing is seen to sustain a culture of integrity more powerfully than the visible values of senior leadership. And nothing erodes it faster than a do-as-we-say-not-as-we-do attitude. If leadership won’t hold itself to moral account, who will? The possible answers are chillingly simple: (a) no one, (b) public opinion, or (c) the regulators. If no one does, the anarchic spiral has begun. If public opinion does, even well-entrenched leaders can find themselves summarily ousted. If the regulators do, the powerful right-versus-right crosscurrents so necessary to any organization’s moral progress get reduced to mere points of compliance with personal responsibility draining away into over-lawyered adjudication.

It’s often said of ethical matters that the devil is in the details. This case is different. Down in the details, it looks logical — sort of. The devil is in the big-picture optics. Better the moral courage that says, “We’re not testifying, period!” than the compromise that appears to say, “We’ll testify, but we can’t promise truth-telling.”

©2007 Institute for Global Ethics

“It was a running joke that some of the new faces were 25- to 32-year-old males asking, ‘First name, last name?’ Some people didn’t care; it bothered me and a couple of other leaders, but we didn’t want to make a big stink because we didn’t want to look paranoid. We applied to the F.B.I. under the Freedom of Information Act to see if there’s a file, but the answer came back that ‘we cannot confirm or deny.’ “

WASHINGTON
Three ethics stories topped U.S. political news last week:

• In what may amount to the opening salvo of the 2008 election cycle, Democrats last week unveiled a commercial related to the ethics controversy surrounding the firings of eight U.S. attorneys, according to reports from the Washington Post and the New York Times. The radio ad alleges that Rep. Heather Wilson (R-N.M.) pressured her state’s U.S. attorney for information that could embarrass her political rivals in the run-up to last fall’s elections. The Democrats are attempting to show that the firings were politically motivated and are leading a move in Congress to compel senior White House aides to testify about the dismissals.
• Former Interior Department deputy secretary J. Steven Griles last week pleaded guilty to obstructing justice, becoming the highest-ranking Bush administration official to be convicted in the cases surrounding lobbyist Jack Abramoff. The Reuters news agency reports that Griles admitted lying to a Senate committee when asked about his relationship with Abramoff, who had sought Griles’s intervention in a deal that would benefit Abramoff’s clients. Griles is the ninth person convicted in federal probes linked to Abramoff. National Public Radio reports that the plea deal limits Griles’s jail time to a maximum of 10 months.
• Federal judges are slow to report expense-paid trips under a new requirement that took effect on January 1, according to a judicial ethics watchdog group. The Associated Press reports that Doug Kendall, the executive director of Community Rights Counsel, claims he searched nearly 200 federal court websites but found no reports on travel. Kendall tells the AP that every year since 1992, judges have attended private seminars during the first two months of the year, a period that would be expected to show up in current reports. A spokesman for the courts says the lack of disclosure may be due to the courts’ assumption that travel for which invitations were issued prior to January 1 would be exempt from the reporting requirement.

VARIOUS DATELINES
The ethics implications of organ donation were featured in several stories in the world press last week. Among the top items:

• A new and controversial approach to harvesting kidneys, livers, and other body parts is increasing the number of organs available for transplants, but at the same time may be putting the donors at risk, critics claim. The Washington Post news service reports that some surgeons recently have begun removing organs only minutes after the heart stops beating and the patient is declared dead. Previously, it had been customary to wait until all brain activity stops and the patient is declared “brain dead.” Advocates of harvesting say it meets the rising demand for organs and gives dying patients and their families solace in the thought that they are helping others, according to the report. But some doctors and bioethicists tell the Post that the practice raises troubling scenarios, including an erosion of donors’ care in their final days. ABC News reports that that National Academy of Sciences’ Institute of Medicine has ruled that the accelerated protocol, known as “donation by cardiac death,” or “DCD,” is ethical as long as donor care and transplantation are separate procedures and surgeons wait at least five minutes after the donor’s heart stops.
• In an attempt to crack down on what is believed to be a growing illicit trade in human organs and tissues, Vietnam last week issued new rules tightening the regulations on Vietnamese who travel overseas to donate organs. The Hanoi-based Thanhnien News reports that Vietnamese citizens will be allowed to make organ donations abroad only if they are blood relatives of the recipients.
• China’s decision to crack down on the export of human organs, covered in our March 19 edition, apparently has resulted already in shortages in neighboring nations. The Korea Times reports that for the roughly 10,000 people awaiting transplants in Korea, the situation is “become desperate as the supply of organs from China dries up.” Many of China’s organs were believed to come from executed Chinese prisoners, the Times reports.
• The Detroit Free Press reports that there is a growing debate over how to jump-start Americans’ reluctance to donate organs. The latest controversy centers on a group called LifeSharers, which makes private arrangements in which volunteers agree to donate organs when they die, and in return are put on priority status if they need organs from other members of the organization. Founder Dave Undis told the Free Press: “We’re offering what I think is a really good trade — you agree to donate your organs when you die, and, in exchange, you increase your chance of getting a transplant when you live. Giving an organ transplant to someone who refuses to be an organ donor is like giving the Powerball jackpot to someone who didn’t buy a ticket. You got to be in it to win it, right?” But a transplant surgeon interviewed by the paper disagreed, maintaining that organs should go to the patients with the most need, and that the LifeSharers system would be inefficient and unfair.

WASHINGTON
Gifts and cash are given routinely to doctors by drug companies, and disclosure laws designed to shed light on the practice are largely ineffective, according to a study published in the Journal of the American Medial Association.

Newsday reports that Dr. Peter Lurie, deputy director of a Washington, D.C., watchdog group and a coauthor of the study, says that even in the five states where there are disclosure laws, the gifts still fail to appear on the public radar.

He tells Newsday that it is important for consumers to know what kind of gifts doctors receive because they may affect the kind of medication and treatment the patient receives.

“The gifts may take the form of educational fees, cash, a check or a meal,” Lurie told Newsday. “These things are not benign. Social science literature makes the argument that even with small gifts, recipients feel the need to reciprocate in some way. If you’re a doctor, the easiest way to do so is to prescribe the company’s drug.”

Scientific American reports that drug company payments also can take the form of consulting fees and a practice known as “detailing,” in which doctors are paid to see drug-company representatives during the workday.

The study looked at new laws in Vermont and Minnesota, and concludes that major pharmaceutical firms there made millions of dollars in payments and gifts to doctors but failed to disclose them.

According to UPI, the companies circumvented the laws by classifying the payments as trade secrets, shielding the identities of the recipients.

ABC News reports that study co-author Joseph Ross explains that classifying payments to doctors as “trade secrets” exempts them from disclosure under state law, even though other records made it apparent that millions had been paid out to physicians.

A summary of the results from the Journal of the American Medical Association also claimed that records were difficult to access, requiring extensive negotiation with state officials in Vermont and manual sorting of paper copies in Minnesota.

CHICAGO
The trial of Conrad Black, a former Canadian press baron charged with looting the company he founded, opened last week in Chicago, featuring not only the expected legal wrangling over the various fraud, racketeering, and obstruction charges, but also a glimpse into the national and international perspectives on CEOs and white-collar crime.

The flamboyant Black, who renounced his Canadian citizenship in order to become a member of the British peerage, was portrayed as both villain and victim in opening arguments, reports the Chicago Tribune. Prosecutors charged that Black and co-conspirators duped shareholders through a scheme based on lies and half-truths, while the defense claimed that a business partner schemed against Black, stealing from Black and then agreeing to testify against him in a plea deal.

Reports from the Winnipeg Free Press and the CTV television network note that prosecutors also attacked the tycoon’s lifestyle, including allegations that he funded lavish vacations with corporate money.

In the wake of various Enron-type scandals, white-collar trials increasingly have focused on corporate greed, leading some international observers, such as the London-based Guardian’s Naomi Klein, to speculate that Black is “on trial in a nation that loathes its elites,” arguing that the “jury selection process shows how regular Americans now regard the wealthiest few not as heroes but as thieves.”

Klein writes that Black might have found a sympathetic jury in the United States in 2000, when the stock market was soaring. But in 2007, “he came face to face with the boom’s collapse…. As the judge questioned a pool of 140 prospective jurors in order to whittle the group down to 12, plus eight alternates, she found men and women who had ‘lost every dime’ in the WorldCom collapse, whose pensions had evaporated on the stock market, who had been fired thanks to outsourcing, and who’d had their finances ravaged by identity theft.”

Klein concludes: “Asked what they thought of executives who earn tens of millions of dollars, jurors answered almost uniformly in the negative. ‘Who could possibly do that much work or be that capable?’ one asked.”

PALO ALTO, Calif.
Even though California’s criminal probe into the Hewlett-Packard (HP) spy scandal essentially disintegrated, prosecutors say the high-profile case will deter similar spying and contend that justice still may be served when and if restitution penalties are assessed.

In mid-March, a judge dropped all charges against former HP chairwoman Patricia Dunn, and three other defendants avoided jail time by pleading guilty to misdemeanors, agreeing to community service and yet-unspecified restitution.

While a federal probe remains active, the sputtering finish to the state case does not bode well for federal prosecutors, with legal experts saying the case appears weak, reports the Associated Press.

The case shook the reputation of the venerable high-tech manufacturer when it was revealed that high executives had condoned a scheme in which private investigators impersonated board members in order to trick phone company workers into turning over private calling records, which were then used to trace which board members had leaked information to the press.

Bloomberg reports that the California attorney general’s office said that the practice of impersonating others, known as pretexting, has dropped dramatically in the aftermath of the investigation.

Reuters quotes California deputy attorney general Robert Morgester as saying that while pretexting used to be “an out-of-control problem, it has almost vanished.”

But one wrinkle in the case remains, notes the San Jose Mercury News: restitution to victims whose privacy was invaded.

As part of the disposition of the case, the attorney general will formally ask victims if they would like to seek restitution.

The proposed remedy “raises the provocative question of ‘What’s your privacy worth?’ ” said Kirk Hanson, executive director of the Markkula Center for Applied Ethics at Santa Clara University.

Hanson says restitution in this case is a particularly perplexing moral issue because apparently no victim has lost any money, but invasion of privacy can exact an emotional toll.

“There is a psychic value to privacy,” Hanson told the Mercury-News. “That empty feeling can last a long time after your house has been burglarized. Similarly, there is psychic damage done when you find that someone has been looking through your trash or your phone records.”

VARIOUS DATELINES
The evolving ethics of the Internet era figured in four major stories last week:

• The implications of anonymous political postings on sites such as YouTube figured in ethics news last week, as the creator of a popular anti-Hillary Clinton Internet video was unmasked. According to a report from Forbes, the producer of the popular video spot, a reworking of a classic 1984 Apple Computer ad tweaked to depict Clinton as an Orwellian figure, was identified as a Democratic operative who worked for a consulting firm with ties to Sen. Barack Obama (D-Ill.). Obama, who is running against Sen. Clinton (D-N.Y.) for the Democratic presidential nomination, denied knowing anything about the origins of the ad. The anti-Clinton video, which has been viewed about 1.4 million times since being posted, represents the opening round in the coming Internet political war, according to a report from the Reuters news agency,. “The Internet is going to be the main event,” Carol Darr, director of the Institute for Politics, Democracy and the Internet at George Washington University told Reuters. “Anything that gets the attention of millions of eyeballs — and particularly millions of eyeballs of people who at this early stage are watching — matters.”
• The European Commission (EC) last week called for privacy and security measures to be built into radio frequency identification (RFID) tags before those devices become widespread. BusinessWeek notes that RFID chips have enormous practical benefits, from tracking passports and luggage to telling doctors which medicines have been given to patients. But as the trade publication RFID Journal notes, the EC maintains that there is considerable potential for abuse, including surreptitious tracking of purchases, and little advance planning for preventing the exploitation of personal data. The EC says it will publish comprehensive guidelines later this year, reports the Australian Age.
• A federal judge in Philadelphia last week struck down a law restricting Internet pornography, saying he would “not turn a blind eye to the law in order to attempt to satisfy my urge to protect this nation’s youth by upholding a flawed statute,” according to the Philadelphia Inquirer. The ruling by judge Lowell Reed, Jr., continued to chip away at the Children’s Online Protection Act, which was passed by Congress and signed into law by President Clinton. Reed ruled that the law, which mandated that Internet porn sites require adult-access codes or credit cards in order for users to gain entry, was overly restrictive, according to a report from CBS. Reed concluded, “Perhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection.”
• The New York Times reports that a new website designed to identify city officials who allegedly abuse special parking permits is generating a fiery ethical debate. The site, titled “Uncivil Servants,” says it is illustrating how municipal employees, especially police, misuse the permits. Instead of using them for parking near police stations or courthouses while on official business, the site contends, many permit holders simply use the placards to dodge parking fees and to obtain convenient spots in bus lanes and by fire hydrants. But the Times reports that critics, including several posters who say they are police officers, argue that posting photos of the license plate numbers could put police and their families in danger. The site administrators say they have no control over what members post, but urged them not to include license plate numbers in photos.

BOSTON
A report from the Christian Science Monitor notes that while business schools are upping their offerings in ethics in the post-Enron world, not everyone is convinced that coursework will change behavior when students reach the executive office.

Monitor correspondent Jeffrey MacDonald notes that a recent survey indicates the number of stand-alone ethics courses in MBA curricula has shot up by 500 percent since 1988, and that many business schools have centers dedicated to ethics, corporate responsibility, or sustainability.

But while several experts cited in the piece predict that ethics education will have an impact much like the previous wave of entrepreneurial education, others want to see the evidence.

“It’s unrealistic to expect people’s behavior is going to change because they sit in classes,” Marshall Goldsmith, an executive coach based in San Diego and a part-time lecturer at Dartmouth College’s Tuck School of Business, told the Monitor. “Is there any proof in any executive education … that anyone who went to any course ever changed any behavior as measured by anyone else over any period of time? Not that I know of.”

Some take a middle ground, such as John Bruhn, a former Penn State-Harrisburg provost who now runs a management consultancy specializing in ethics.

“No one is going to come out of those courses as a different person,” Bruhn told the Monitor. “The thing those courses are going to do is create awareness. They’re not going to change behavior because ethics is learned by modeling, not by reading a bunch of books over a weekend.”

CHICAGO
Primates show basic elements of morality, say researchers attending what is billed as the first major conference devoted to the thinking processes of chimps.

The Chicago Tribune news service reports that participants at the Lincoln Park Zoo conference are studying such case histories as that of Knuckles, a chimp who has cerebral palsy that prevents him from defending himself, but nonetheless is not subject to the typical aggression of chimp society, apparently because his counterparts have compassion for their fellow chimp.

The New York Times notes that the moral aspects of chimp life have been noted before. “Chimpanzees, who cannot swim, have drowned in zoo moats trying to save others,” writes reporter Nicholas Wade. “Given the chance to get food by pulling a chain that would also deliver an electric shock to a companion, rhesus monkeys will starve themselves for several days,” he adds.

“Biologists argue that these and other social behaviors are the precursors of human morality,” Wade writes. “They further believe that if morality grew out of behavioral rules shaped by evolution, it is for biologists, not philosophers or theologians, to say what these rules are.”

But a report from the Washington Post argues that the human-animal morality connection cuts both ways. Frans de Waal, a speaker at the Chicago conference, recounts several incidents in which bad human behavior, such as a corporate executive tossing a chair, is reflective of chimp aggression, as is the behavior of a boss who scolds a subordinate for talking in the hallway with someone of whom he did not approve.

“Chimpanzees also divide and rule,” de Waal told the Post. “You have an alpha male, and he will try to keep his supporters away from his rivals. His supporters are in trouble if they groom one of his rivals.”

From the Financial Times/Harris Interactive®:

“This latest Financial Times/Harris Poll shows that except in Spain, majorities or pluralities of adults in the five largest European countries believe that life in their country has become worse since it became part of the European Union (EU)…. Spanish adults are the most positive about the effect that joining the EU has had on their country, with more than half (53%) stating that life has gotten better. In the other countries substantial proportions in (Britain 52%, France 50%, Italy 47%, and Germany 44%) feel that life in their country has gotten worse since their countries joined the EU.

“Only in Great Britain is there a plurality of adults who think that life would be better if they left the EU. A majority in Spain and pluralities in France, Italy and Germany think that life would be worse….

“Attitudes to the EU are lukewarm at best and often negative. And yet, majorities or pluralities want to see the EU doing more, rather than less, on a broad range of activities and issues.

“Humphrey Taylor, chairman of the Harris Poll at Harris Interactive states, ‘This suggests that majorities in the five countries support a strong European entity while often disliking what it does and how it operates.’

“Some other highlights from the poll:

• “…Areas where largest proportions from five EU countries would like to see EU doing more are the environment, energy, and crime and security….
• “Majorities or pluralities in 4 of the 5 EU countries and in the U.S. favor harmonization of financial and trade regulations with the U.S. However in Germany, there is a slender plurality that is opposed….
• “Few people, except perhaps the 31% in Italy, think that EU regulations have had a positive impact on business in their countries. In all five EU countries except for France, pluralities believe they have had a negative impact.
• “There is no consensus on the likely impact of a new EU constitution. A majority in Italy and a substantial plurality in Spain think it would have a positive impact. A large plurality in Great Britain thinks it would have a negative impact….”

“There are a terrible lot of lies going around the world, and the worst of it is half of them are true.”

– Sir Winston Churchill (British statesman and prime minister, 1874-1965)