Why Full Disclosure Is Far More Valuable than An Apology In Areas Ranging From DOJ Scandals, to Iraq War Votes

By EDWARD LAZARUS

Thursday, Mar. 29, 2007

To a significant degree, our legal and political system seems to be built around the concept of acceptance of responsibility.

In the criminal law, we give a substantial break to defendants who accept responsibility by pleading guilty. We even give something of a break to defendants who proclaim their innocence through trial, but then 'fess up after the jury has returned a guilty verdict. The federal sentencing guidelines make it explicit in their sentencing matrix: In our system, acceptance of responsibility for wrongdoing reduces punishment.

In politics, we also seem to give credit for owning up to wrongdoing. To take an obvious example, think how much better off Bill Clinton would have been if he'd just admitted to his Monica dalliance, apologized to his wife, daughter and country, and moved on. We'd still be thinking about Andrew Johnson as the only president to be impeached.

There is, of course, a natural logic to valuing honest admissions of error and the genuine shouldering of responsibility. Those are qualities essential to leadership.

But there is also a danger in our fondness for breast-beating. Public apologies and acceptances of responsibility can also serve as strategies for escaping genuine accountability.

Most of the time, in public life, the real issue is not whether a politician is "sorry" for what he or she has done, but rather whether the politician candidly discloses the full extent of the error made, how important the error was, what steps are being taken to correct the error, and what consequences should flow from it. Expressions of regret and abstract claims of being held accountable are no substitute.

A look at the current scandals plaguing the Department of Justice (and no, I don't mean just the scandal over the U.S. Attorney firings) helps illustrate the problem.

The Recent DOJ Scandal Over An Internal Report Exposing Serious Patriot Act Abuses

A few weeks ago, the Department of Justice's Inspector General reported that the FBI has been grossly abusing its authority under the Patriot Act, in order to obtain the private records of U.S. citizens.

Under the Patriot Act, the FBI can use so-called National Security Letters (NSLs) to obtain from corporations the private email, telephone, and financial records of individuals without any court approval, let alone a valid warrant. Moreover, the FBI can do this even if the individual whose records are being sought is not suspected of any wrongdoing at all.

As one might imagine, there are regulations limiting when the government can use this extraordinary authority to spy on completely innocent Americans. Indeed, overuse of this type of authority is exactly what concerned civil libertarians when the Patriot Act was being considered and adopted.

As it now turns out, the FBI basically had no program in place to ensure compliance with the limits of the law. And, shock of shocks, the FBI repeatedly abused its authority.

Between 2003 and 2005, the FBI issued 143,000 NSLs. In so doing, according to the Inspector General, the FBI definitely violated the law on dozens of occasions, and may have violated the law as many as 3000 times. Among other transgressions, the FBI pretended on no less than 700 occasions that "exigent circumstances" existed to justify circumventing court supervision of information requests when, in fact, no such exigent circumstances were present.

By pretty much any measure, this has to qualify as a major screw-up. As I have written in a prior column, I am more sympathetic than many progressives to the idea that in the age of terrorism we have to trade some measure of our privacy for greater security. But the sine qua non of this trade-off is that the government creates and zealously observes meaningful safeguards against the abuse of whatever new authority we yield to it. When government fails in this duty, it seriously undermines our security by making us, in the future, less likely to strike sensible bargains between the demands of liberty and security, because we simply won't trust our government to police itself in light of our knowledge of past abuses.

In the wake of the Inspector General's report, the Democrats now in control of Congress called FBI Director Robert Mueller up to Capitol Hill to testify about the Patriot Act abuses. What were some of the first words out of Mueller's mouth? Those magic words of reassurance: "I am accountable."

Now from what I know, Mueller is a good and conscientious public servant. He did a great job as U.S. Attorney in San Francisco. And he's no political hack.

That said, his claim of accountability was worse than meaningless. It was a way of cloaking himself - Harry Truman-style - with the aura of integrity and trustworthiness that goes with assuming personal responsibility. But this aura is far too often unaccompanied by any actual consequence for having already made some colossal blunders.

If Mueller really wanted to make himself accountable, he should have resigned, or at least offered to resign if he fails to fix the problem in short order. Otherwise, his claim of accountability will actually amount, ironically, to a self-serving attempt to avoid accountability.

In the U.S. Attorney Scandal, It's Not Enough Simply to Say Mistakes Were Made

To be sure, Mueller's conduct looks downright courageous compared to that of Attorney General Alberto Gonzales. By declaring that "mistakes were made" in the firing of the U.S. Attorneys (a dodge coined in the Reagan Administration), Gonzales has refused (unlike Mueller) to take any personal blame at all for the workings of his Department.

But admissions of error and rhetorical claims that "the buck stops here" should not be confused with genuine accountability. Genuine accountability requires that serious mistakes lead to serious consequences for the wrongdoers. And I can think of no more overarching problem with government today - whether the issue on the table is Iraq, Katrina, DOJ, or a host of other matters -- than the disappearance of this basic notion.

Politicians' Apologies are Fine - But Full Disclosure Is Far Better

Much the same can be said of the now commonplace tactic of issuing apologies. In a limited set of circumstances, there is a time and place for politicians to apologize. When they commit personal foibles or misspeak in a potentially hurtful way, it seems reasonable - even responsible - for a public official to try to make amends through a traditional apology.

But it seems to me that the now relatively common practice of apologizing for mistaken policy judgments has morphed into a strategy for evading real responsibility for errors in judgment, by trading on the public's general tendency towards forgiveness.

Is John Edwards really a better candidate for president than Hillary Clinton because he's apologized for initially supporting the Iraq war, while she has not? I don't think so. Public contrition in these circumstances is just an emotion-laden distraction from meaningful inquiry into exactly why each candidate supported the war, when each candidate recognized his or her error, and what policies each would pursue to ameliorate the consequences of the mistakes already made. Saying you're "sorry" on top of this, even if the contrition is sincere, is in these circumstances too often a way of buying out of trouble on the cheap.

With the return of divided government and congressional oversight in Washington, the chorus of apologies and declarations of accountability is sure to swell. Perhaps an old adage will also come back into fashion: Actions speak louder than words.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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