141. "Are Scams and Stings Out of Control?" The Washington Post (September 19, 1982). Reprinted as "Criminal Should be Only one to Object to 'Stings'" Kansas City Star (October 3, 1982).
IT'S TIME WE APPLY to politicians a notion they fondly embrace when dealing with criminal members of other occupational groups: Let's be a bit less concerned with the rights of the criminals and more worried about the rights of the victims. Let's be a bit less concerned with the exact ways corruption of elected public officials is uncovered -- and much more concerned with reducing corruption in public life.
One can argue about the legal fine print and question the use of "sleazy" intermediaries (and ask if they "contaminated" the FBI agents involved). One might favor letting a thousand crooked politicians reign freely, lest we entice one innocent representative into graft. However, in the real world there are a multitude of needs and rights and they must somehow be kept in balance.
We must worry about both the means used by law enforcement officers and about the level of crime -- street crime, white collar crime and political corruption as well. We want neither crime to govern in the streets or corruption to govern in Washington.
Ever since we learned that the FBI had been filming politicians pocketing bribes, embarrassed only by their pockets' lack of depth, there have been tirades from politicians criticizing not only the callous equanimity with which members of Congress took monies in violation of their sworn oath, but also the methods use to snare the culprits.
Sen. John Stennis (D-Miss.) described the conduct of the FBI as a "national disgrace." The mayor of Las Vegas, Bill Briare, on discovering an FBI sting on his turf (politicians accepting bribes to change zoning variances), likened the FBI to the Soviet KGB.
While sting operations have been going on for years against other groups -- not just drug peddlers and fences, but also city health and housing inspectors, and Johns in hot pursuit of hookers -- never has the clamor about legal, ethical, and procedural issues been so loud as since Abscam. The seven members of Congress who walked into a trap initially set for art swindlers provoked a storm put most of them in jail, but also but the FBI in the dock. The Bureau has been subjected to one hostile hearing, chaired by Congressman Don Edwards (D-Cal.), and another, hardly supportive, chaired by Senator Charles McC. Mathias (R-Md.)
There is no question that sting operations raise a host of issues not relevant to routine catch-the-crook-red-handed police work. One of them is a matter of definition.
The FBI is not allowed to entrap people; that is, to induce anyone to commit a criminal act he or she was not otherwise predisposed to commit. The FBI has been flat- footed in its effort to explain how sting operations differ from entrapment. It has dealt with the issue largely by issuing detailed descriptions of acceptable and unacceptable behavior to its agents, guidelines that are too complex and technical for ready explanation in the media, and that are likely to be violated on one point or another during a real- life sting. An agent cannot fully adhere to what amounts to 18 pages of single-spaced strictures.
The main point, though, is clear. Sting operations create opportunities for people predisposed to violate the law to do so under circumstances that make it relatively easy to document their act beyond reasonable doubt (on camera and in the presence of several law enforcement officers). Innocent people do not peddle stolen goods to a fence, look for drug dealers, or offer Arab sheiks favors in Congress. The difference between a sting and an unacceptable entrapment is like the difference between selling condoms in a drug store and distributing them to pre-teenagers after a class in sex education.
Another controversial area is the use of intermediaries. The FBI came under criticism because it used crooks to make known the availability of bribes. It seems want ads would not do. Routine means of police work are difficult to apply in the corridors of congress, and "clean" intermediaries are not credible bait. And, as the director of the FBI pointed out, "sleazy" intermediaries do serve as a fair warning to innocent people to stay away. Those who fail to heed it are not fully intent on keeping their public life above board. In two instances the intermediaries committed crimes while working for the FBI; one has been jailed and the other is being tried. Their victims are being compensated (loss of money, not life or limb, is at issue), as they ought to be. In future sting operations, the FBI should take greater pains to control the behavior of these characters, but one cannot expect them to behave like gentlemen.
A third problem, it has been alleged, is that sting operations will lead innocent citizens to live in fear that Big Brother is watching at every stop at the butcher or baker shop. This notion is ludicrous. No sign of such fear has been in evidence since Abscam. Indeed, all the people I checked with said they would prefer more police surveillance to the current climate of fear of crime -- and to the sense that politicians can pursue bribes with impunity. If we had many hundreds of sting operations going on, with citizens hauled in daily, say for not reporting income in the "underground" economy, a point of intimidation might be reached. Today the climate is much closer to the extreme opposite: the crooks know no fear.
The critical issue raised by sting operations is whether or not they are aimed at persons "predisposed" to crime instead of innocent citizens. How can one determine that an individual is predisposed? One way is to watch what that person does when presented with the opportunity to commit an illegal act. If he or she is eager, as members of Congress were on Abscam tapes, it helps to clarify the matter. But glee (or even an unaffected, business- as-usual manner) is not essential. Voluntarily pocketing the bribe is sufficiently persuasive. A person not predisposed would walk away when the illegal, unethical, and unsavory nature of the situation became clear. Senator Larry Pressler (R-S.D.) did exactly that. It is hard to believe that other representatives just could not find the door. And Rep. Richard Kelly's (R-Fla.) explanation that he pocketed the money in order to conduct his own investigation (of which he notified no one) only tells you how cynical some politicians are and how gullible they believe the public to be.
Another way to look at predisposition is to study the frequency of violations in the group to which an individual belongs. The fact that over the last generation, nearly 50 members of Congress faced criminal charges, and most were convicted, strongly suggests that this group consists of more than choirboys. In the two hearings members of Congress have conducted on Abscam, no attempt has been made to determine how predisposed members of Congress are to corruption, how widespread the malaise, and hence how urgently they need the help of the FBI to clean up their house.
I do not have statistics on the subject either. But one cannot wholly ignore the implications of the fact that most of those approached by the FBI intermediaries were more than willing to play. And there have been numerous other reports of wrongdoing by members of Congress from ex-wives, jilted mistresses, former aides, and investigative reporters. So while one cannot measure the fire with precision, there sure as hell is a lot of smoke.
Equally important is that Congressional committees have in the past been extremely reluctant to develop or enforce ethical codes, and quite willing to dilute and roll back whatever standards they did come up with. I would have found the Abscam hearings much more satisfying if the criticism of the FBI's procedures had been accompanied by a serious drive for Congress to examine its own members and prevent future abuses. In the face of Congress's continued extreme reluctance -- to put it mildly -- to clean up its own affairs, the FBI should be directed to concentrate on crooked politicians rather than being driven out of this business. Indeed, it was one of the achievements of the "new" (post-Hoover) FBI that it changed its priorities to turn from almost exclusive preoccupation with street crime to embrace white- collar crime and elected crooks as well. I see no public purpose served by a return to Hoover's priorities.
To maintain and tighten the sting procedures, we should adopt a suggestion of Prof. James Q. Wilson of Harvard and ask a small panel of judges to review all new sting techniques before they are employed. These judges could also help insure that sting operations are set up only for groups can reasonably be considered suspect, and do not turn into fishing expeditions among innocent citizens.
At the same time, it is essential that efforts to sanitize sting operations not be used to blunt them or limit them to groups other than elected officials. The corruption of public officials is particularly harmful. If they are corrupt, millions of citizens feel licensed to indulge themselves when possible, say, by resorting to the underground economy.
Moreover, the public feels cheated and jilted when their elected representatives are found to be on the take and wail about the way they were caught instead of regretting the ease with which they yielded to temptation. True, American distrust of public officials and authority has many historical roots. but given the present high level of distrust, the last thing the country needs is for politicians to slam the FBI instead of welcoming and augmenting efforts to straighten out our public life.