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The Ethics of Covert Operations

In the context of a believed failure to stem crime, especially in the case of organised crime, but also police corruption, investigators have turned from a reliance on complainants to various kinds of covert operations. Such operations include undercover investigations and various forms of trapping. Covert operations invariably involve deception of one sort or another, and deception is morally problematic (Kleinig 1996, Chap. 7). Deception is part and parcel of undercover work in particular. Deception can exist in relation to a personal relationship, and not simply in respect of some particular action. However deception in policing seems inevitable, and in any case does not necessarily involve an infringement of moral rights. In some circumstances lying is an infringement of a moral right. For example, lying about the accused in a court of law may be an infringement of the moral right of the accused. But outside special contexts such as a court of law, lying to someone, or simply failing to make know something to him/her, is not per se generally regarded as of the same high degree of moral wrongness as, say, assaulting or killing a person. Naturally, consequences can make a difference. The moral wrongness of lying about a person’s whereabouts taken on its own might be relatively slight. However, if the consequences of this lie put the person’s life at risk then the moral seriousness of the lie increases dramatically.

It might seem that on the above analysis police use of deception, at least in the investigative phase, is justified. While deception is inherently wrong, it is justified by the good consequences that flow from its use. Unfortunately, this argument is not as compelling as it might seem. For while the consequences are sometime good, this is not necessarily or always the case. Police can deceive criminals to serve their policing purposes, but they can also be used by criminals. And the danger is that the police end up engaging in a game of deception and counter-deception which they ultimately lose. Moreover, the police can develop a habit of deception that they find difficult to shrug off; so they start off deceiving criminals and end up deceiving one another and members of the public. Moreover, the widespread practice of deception is corrosive of trust not only within an organisation, such as the police, but also between police and members of the public. The erosion of trust between police and other police, and between police and the public that they serve can ultimately undermine the ends of law enforcement itself. For in the end of the day individual police rely on one another to enforce the law, and they also rely on the community. Abridgement of this policy of building trust for the short-term investigatory advantages that deception may confer—as in the setting of traps or ‘sting’ operations—can come to pose a far greater danger for a democratic society—and for policing—than the criminal behaviours against which they are directed.

And there are specific forms of corruption which are extremely morally problematic. Of the notion of the state implicating itself in ‘sting’ activities (Marx 1988; Harfield and Harfield 2012, Chap. 9) such as those directed against the vice industry, Marx (1992) wrote:

“State sponsored deception, of course, raises all the ethical issues generally associated with deception. It also raises some issues that are unique to the state as the symbolic repository of societal values (for example, the need to avoid setting bad examples)... Propriety and the symbolic importance of a pristine government image may militate against certain extreme activities. Betrayal involving another’s body adds an additional troubling element”.

Hypothetically, we can only generalise that a police organisation, as a moral exemplar and as an organ of ethical government, bears a responsibility for the deployment of its employees. The impropriety of, for example, setting a police departmental employee to work as a prostitute in a brothel, in order to secure evidence against corrupt police officers involved in the vice trade, cannot be justified in the light of a successful prosecutorial outcome. The point to be made here is that the deceptive activity had an additional moral problematic character; it was not just deception, it was engaging in prostitution. Perhaps such inherently morally problematic activities on the part of undercover operatives are avoidable. However, almost inevitably many undercover operations give rise to a different kind of moral problem, namely, betrayal.

A person’s intimate relationship with another person gives rise to a zone of interpersonal privacy from which third parties are excluded. For example, a married couple has a right to engage in intimate sexual acts in their home unobserved by others. Such zones of interpersonal privacy or intimacy typically exist between members of families, e.g. parents and children, friends and lovers. Moreover, such intimacy is regarded as a moral good. Certainly the development of interpersonal relations with emotional depth requires, and is in part constituted by, intimacy. However, intimacy can be morally problematic. Consider the predatory intimacy that might obtain in an exploitative sexual relationship, or the betrayal of trust that results when an undercover operative finally “shops” an offender that he has “befriended”.

The moral dangers attendant upon undercover operations involving, as they do, the breach of moral principles, e.g. not to deceive or betray, call for the provision of a principled account of the difference between the justifiable use of normally immoral methods and forms of corruption (or otherwise immoral behaviour) that are motivated by good ends but are not morally acceptable. So I need to provide a principled account of the difference between morally justified use of covert methods, notably undercover operations, and so-called noble cause corruption. In Chap. 1 I did so, in effect. There I argued that when police officers act in accordance with the legally enshrined moral principles governing the use of harmful methods, they achieve three things at one and the same time. They do what is morally right; their actions are lawful; and they act in accordance with the will of the community.

 
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