Ethics Newsline®

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