Institutional excuses
On February 7, 1973, Richard Helms, the former director of the Central Intelligence Agency, lied to a Senate committee about American involvement in the overthrow of the Allende government in Chile.
Santiago proved to be Helms’s Waterloo: he was caught out in his perjury and prosecuted.[26] Helms claimed that requirements of national security led him to lie to Congress. We can only speculate, however, on how the court would have viewed this excuse, for in fact the case never came to trial; Helms’s lawyer, the redoubtable Edward Bennett Williams, found an ingenious way to back the government down. He argued that national security information was relevant to Helms’s defense and must be turned over to Helms, thereby confronting the government with the unpleasant choice of dropping the action or making public classified and presumably vital information. The government chose the first option and allowed Helms to plead guilty to a misdemeanor charge.[27]I don’t know if anyone ever asked Williams to justify his actions; had anyone attempted to do so, they would presumably have been told that Williams was simply doing his job as a criminal defense attorney. The parallel with Helms’s own excuse is clear - he was doing his job, Williams was doing his - but it is hard to miss the irony. Helms tried to conceal national security information; therefore he lied. Williams, acting on Helms’s behalf, threatened to reveal national security information as part of a tactic that has come to be called “graymailing.” One man’s ends are another man’s means. Neither lying nor graymailing (to say nothing of destabilizing elected regimes) is morally pretty, but a job is a job and that was the job that was. So, at any rate, runs the excuse.
We may want to reject these “good soldier” excuses or we may find them valid and persuasive.
That is the issue I shall address here. A second graymailing example will warm us to our topic:In instances [of merger cases involving firms in competition with each other] in which the [Federal Trade] commission’s legal case looked particularly good and none of the usual defenses appeared likely to work, the staff was confronted several times with the argument that if they did not refrain from prosecution and allow the merger, one of the proposed merger partners would close down its operations and dismiss its employees... Of course, the mere announcement of the threat to close the plant generates enormous political pressure on the prosecutor not to go forward. Ought lawyers to be engaged in such strategies for the purpose of consummating an otherwise anticompetitive and illegal transaction involving the joinder of two substantial competitors?
On the lawyers’ advice, the firms played a nice game of chicken: closing down by stages, they laid off a few workers each day until the FTC cried uncle.
What could justify the conduct of these lawyers? A famous answer is the following statement of Lord Henry Brougham:
An advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, amongst them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others. Separating the duty of a patriot from that of an advocate, he must go on reckless of consequences, though it should be his unhappy fate to involve his country in confusion.[28] [29]
This speech, made in his 1820 defense of Queen Caroline against King George IV’s charge of adultery, was itself an act of graymail. Reminiscing years later, Brougham said that the king would recognize in it a tacit threat to reveal his secret marriage to a Catholic, a marriage that, were it to become public knowledge, would cost him his crown.[30] Knowing this background of Brougham’s oft-quoted statement might make us take a dim view of it; it has, nevertheless, frequently been admired as the most eloquent encapsulation of the advocate’s job.
Brougham’s statement invites philosophical reflection, for at first blush it is equally baffling to utilitarianism, and moral rights theory, and Kantianism. The client’s utility matters more than that of the rest of the world put together. No one else’s moral rights matter. Other people are merely means to the client’s ends.[31] Moral theory seems simply to reject Brougham’s imperatives. Nor does the Biblical morality of the Golden Rule and the twin injunctions to love your neighbor as yourself and love the stranger as yourself (Lev. 19:18, 34) look with greater kindness on the proposition that an advocate knows only one person in all the world, and that person is his client.
They are, however, universalizable over lawyers, or so it is claimed. The idea seems to be that the role of lawyer, hence the social institutions that set up this role, reparse the Moral Law, relaxing some moral obligations and imposing new ones. In the words of an Australian appellate court, “Our system of administering justice necessarily imposes upon those who practice advocacy duties which have no analogies, and the system cannot dispense with their strict observance.”[32]
The system of which the court speaks is the so-called “adversary system of justice.” My main question is this: Does the adversary system really justify Brougham’s position? I hope that the example of Helms and his lawyers has convinced you that a more general issue is lurking here, the issue of what I shall call institutional excuses. We can state the general question this way: Can a person appeal to a social institution in which he or she occupies a role in order to excuse conduct that would be morally culpable were anyone else to do it? Plausibly, examples exist in which the answer is yes: we do not call it murder when a soldier kills a sleeping enemy in wartime, although it is surely immoral for you or me to do it. There are also cases where the answer is no, as in the job “concentration camp commandant” or “professional strikebreaker.” Here, we feel, the immorality of the job is so great that it accuses, not excuses, the person who holds it.
This suggests that an important feature of a successful institutional excuse is that the institution is itself justified. I think that is partly right, but I do not think it is the whole story: I shall argue that the kind of justification of the institution that can be offered is germane to the success of the excuses it provides.