TIME: Almanac 1993/TIME Almanac 1993.iso/time/caps/80/80capabs.2

Text File | 1992-09-25 | 6.8 KB | 130 lines

                                                                                February 18, 1980

ESSAY

The Troubling Ethics of Abscam


Why, you simple creatures, the weakest of all weak things is a
virtue which has not been tested in the fire.

--Mark Twain, The Man That Corrupted Hadleyburg


Like the mysterious stranger in Mark Twain's tale, the FBI
brought a bag of gold to tempt politicians. Did those who fell
for the Abscam sting have only themselves to blame or can they,
like Hadleyburg, blame the stranger for leading them astray?
This question lies at the heart of the uproar over the tactics
used to catch public officials in the act of allegedly taking
a bribe. Did they willingly commit a crime, if indeed a crime
was committed, since the charges have not yet been filed?  Or
were they tricked into wrongdoing by a Government con game that
took unfair advantage of them?  At stake is the integrity not
only of numerous Congressmen, but also to a degree the
reconstituted FBI and federal law enforcement in general.

As the FBI has moved away from the routine investigations of
bank robbery and car theft that were popular under J. Edgar
Hoover, it has plunged into the far more complex world of
organized and white-collar crime and corrupt politicians.
Evidence is much harder to obtain, cases that will stand up in
court are much harder to build. So the agency has increasingly
resorted to stings to produce the strongest possible proof of
a crime. But police infiltration of the criminal world has
always been a touchy area. Undercover agents often necessarily
become parties to the commission of crime; so do paid
informants. Most police experts believe that they would be
severely handicapped without such methods, but the methods
always carry the danger of abuse.

The sting is embodied in American law as an acceptable police
device. In a 1973 decision, the U.S. Supreme Court recognized
that infiltration by undercover agents is "one of the only
practicable means of detection"  in certain kinds of crime,
notably drug transactions. In general, the court has ruled that
as long as a defendant is "predisposed" to commit a crime, he
cannot plead entrapment--that he was lured into breaking the law
against his will or without his knowledge. An entrapment plea
can be successful only if a law-enforcement agency has pressured
or induced him to commit the crime. Thus the defendant must
demonstrate that he would not have broken the law without the
urging of the Government. Many defendants plead entrapment, but
few win acquittal on that basis.

Apart from the legality, there is an ethical question of whether
the FBI carried the Abscam sting to the point of inducing the
politicians to take bribes. It was not the usual sting. The
agency was not simply participating in ongoing criminal
activity. To some degree, it set up the conditions for the
crime. The bounteous Arab sheik was strictly the creation of
the bureau. The targets of its probe were sometimes subjected
to a pretty hard sell--never by the FBI, but by contacts who
were anxious to set up deals with the high-spending sheik. When
Middleman Joseph Silvestri first approached Congressman James
Florio in his office on Capitol Hill, he was turned down.
Silvestri then called Florio at home, inviting the Congressman
out for a "good time" and adding that his friends were "very,
very generous."  Florio finally hung up on him. A top Justice
Department official makes the point strongly that the FBI did
not in the least encourage Silvestri to make this kind of pitch;
he did it all on his own initiative, but it did happen.

Though the FBI insists it was scrupulous in its questioning of
suspects and made every effort to avoid entrapment, civil
libertarians can contend that the operation smacks uncomfortably
of Big Brother;  FBI Director William Webster phoned Senator
Larry Pressler to congratulate him for emerging clean from his
bribery test. But, asks Congressman William Hughes, who also
resisted temptation:  "Is it proper for the Executive Branch to
pose a litmus test for the legislature?"  Representative James
Howard, another who passed the test, objects:  "If there's
reason to believe that a Congressman would take a bribe, that's
one thing. But just to go shopping with a lot of money, that's
different. I resent a little bit that I was put in this
position. In public life, there are enough temptations. Who
needs another one?"

Ultimately, not all the Congressmen may be indicted. But their
names and faces have been splashed all over television and the
press. It is one thing for a Mafioso to get bad publicity; his
career hardly depends on public approval. But politicians who
face re-election can be ruined by such press coverage. Only one
of the members of Congress under investigation is a Republican,
but G.O.P. Senate Whip Ted Stevens protests:  "Reputations have
been seriously damaged in a manner not consistent with the
standards of American jurisprudence."

Another unsettling element is the extensive leakage of the facts
of the case to the press even before the targets of the probe
were told they were under investigation. Says Harvard Law
Professor Alan Dershowitz:  "This is not a press leak but a
press hemorrhage."  Former Watergate Prosecutor Archibald Cox
believes that "little leaks are one thing. Systematically
giving out information on this scale raises real worries about
the sensitivity of the people engaged in the administration of
justice."  Burke Marshall, a Yale law professor who once served
as Assistant U.S. Attorney General, complained in the New York
Times, "the deliberate, pervasive spread of selective
information" is a "violation of every standard of professional
conduct."

The role of the press is also being questioned. Fairness was
sacrificed to the need to match the competition. If a
publication holds back a story while a competitor prints it,
says Washington Post National Editor William Grieder, "all you
are going to do is leave egg all over your face. If we'd had
a firm notice that this was our call alone, I'd have pondered the
question more."

The determination of the FBI to tackle organized crime and
political corruption--activities immensely destructive of our
national ethics--can only be applauded. The more convictions
the better;  the more politicians too scared to take bribes the
better. For too long, organized crime figures and their
political henchmen have operated as if the criminal justice
system were meant to serve them and not the public. Stings are
understandably a vital part of the crackdown, but that is all
the more reason for the FBI to proceed with utmost caution and
with deepest regard for due process. Only by so doing will its
cases hold up in court--and in the court of public opinion."

--Edwin Warner