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Under the Penalty of Perjury:
Condoleezza Rice, the 9/11 Commission, and The Difference An Oath Makes


Wednesday, Apr. 07, 2004

Until the middle of last week, National Security Advisor Condoleezza Rice was engaged in a conflict with the 9/11 Investigation Commission over whether or not she would take an oath to tell the truth prior to voluntarily answering their questions.

The Commission's chairman, Thomas H. Kean (former Republican governor of New Jersey) stated that "I would like to have her testimony under the penalty of perjury" because of discrepancies between Rice's statements, and those made in sworn testimony by the President's former counterterrorism chief, Richard Clarke.

Dr. Rice, however, took the view that because she was responding to questions voluntarily, she should be able to set the terms of the engagement.

Due to public pressure, the White House eventually decided to stop resisting the request for under-oath testimony. The conflict, however, remains important because it brings to light a curious gap in the law - in the absence of an oath, Americans are ordinarily free to lie.

Thus, if we are to hold Dr. Rice responsible for any material deception in her statements to the 9/11 Commission, we may need to require an oath ahead of time to tell the truth, the whole truth, and nothing but the truth.

This point raises some larger questions about the practice of lying: What exactly, if anything, is wrong with it? And should lying be a crime, outside of the perjury context?

What's Wrong With Lying?

If you asked a large number of people what they thought about lying, they would probably give two competing responses: First, they might say that lying is wrong and that people should tell the truth. When they find out that someone has lied to them, they would say, they feel angry and betrayed. If asked whether they themselves have ever lied, though, most people (if responding honestly to the question) would acknowledge that they have.

The difficulty in saying categorically whether lying is bad rests on the fact that the answer can really depend very much on the circumstances. Though most people do not want to be lied to, virtually everyone has lied at some point in her life, and will lie again many more times in the future.

Kant's View: All Lying Is Wrong because It Treats People as Means, Not Ends

Immanuel Kant took the view that lying is categorically wrong. What makes it wrong, he said, is that it treats other people - the ones to whom the lies are told - as a means to an end rather than as an end in themselves. In other words, when we lie to people, we use them, and no one has the right to use another person.

This account of lying is very appealing, at least for some lies. Ordinarily, when people speak untruthfully, they do so in order to cause the person to whom they are lying either to act, or to refrain from acting in a certain way. The "victim" of the lie has thus been manipulated into doing the liar's bidding without having ever made a conscious decision to do so.

Consider an example. I am on the telephone with my mother, and she is telling me a seemingly endless story that has no apparent point. I suddenly say, "Hold on a second," cover the receiver, and wait five seconds. Upon returning, I tell my mother that I have to go, because my boss from work is on the other line and has some urgent business to which I must attend. My mother says, "Okay, goodbye, have a nice day," and I am able to exit the conversation without an argument.

In the example, if I had told the truth, the conversation would have gone differently. I would have said, "Mom, I'm going to interrupt you now because I can't see where this story is headed, and I'm getting tired of listening to it." She might then say, "Oh, I'm sorry I'm boring you. The point of the story is . . . ," and I would once again be listening to an endless, pointless story -- until some interruption at her end of the line caused her to bid me adieu, with the unwelcome addition, "I'll call you later to tell you the rest of the story."

I avoid all of this irritation with my lie, because my mother does exactly what I want her to do - she lets me go without a fight. She does so, however, only because she is misled into believing that a valid exit - one based upon considerations that matter within her value system, such as being responsible about one's work - is taking place. If she knew the truth, she would therefore feel cheated.

Defending Lies

How, then, might I defend myself against the charge that I acted wrongfully toward my mother by lying to her?

First, I would have to be able to persuade my judge that I was justified in ending the telephone conversation with my mother for the reason that in fact motivated me to end it. And one reason I might feel justified is that I had no obligation to remain on the phone.

Perhaps some might feel that I had an obligation to listen as long as my mother wanted to talk, absent a need for exit more compelling than my lack of interest in her story. If so, then ending the conversation was wrong, and lying as I did succeeded only in protecting me from the proper response to my wrongful exit - anger and a refusal to let me go. Using another person's trust to take away what is rightfully hers is wrongful -- and on this account, my unlimited attention rightfully belonged to my mother.

But what if one believes that I have no obligation to listen to my mother? In that case, I can tell the truth and incur her unjustified anger, or I can lie and thereby use her trust to enable her to do the right thing and let me go.

In the latter scenario, her feelings are spared, and I am able to do what I should be able to do anyway: get off the phone within a reasonable amount of time. Indeed, one might even say that by keeping me on the telephone through the implied threat of unjustified anger and insult, my mother is using my own concern for her feelings and for my standing with her to force a conversation that I do not want and have no obligation to have.

Three Kinds of Lies: Insignificant, Harmful, and Beneficial

The lie about getting off the telephone is a ubiquitous one in our culture. Some people enjoy long telephone conversations, and others look for ways to escape them.

It is also a relatively unimportant lie. Telling it is not an example of shocking dishonesty, and refraining from telling it will also not lead to dire consequences.

Lies, however, can be far more destructive, such as - to pick a purely hypothetical example - misleading the nation into supporting a war and sending young men and women to die for a cause of which the people are unaware and may not support.

Other lies, for many of us, might seem necessary and even righteous, such as the lies told to Nazi officials searching for hidden Jews during World War II. The implications of such lies - and whether people tell them or refrain from doing so - are extremely important and serious.

Based on these musings, one might say, there are three distinct kinds of lies that accordingly have three distinct moral meanings.

The Insignificant Lie

One kind of lie - what people used to call a "white lie" - is either mildly good or entirely insignificant.

After a boring blind date, for example, each person says to the other, "It was very nice meeting you. Thanks for dinner," though without much enthusiasm. In reality, each one regrets having wasted his or her time on a tedious date, but no one stands to benefit from the disclosure of that information.

Lying to be polite, when the truth is obvious, seems to fall below any threshold (other than a purist's) for harmful lies. On occasion, of course, what might look innocuous could turn out to be harmful. But that is an equally plausible scenario when we tell the truth - sometimes we reasonably err in calculating what the likely consequences will be.

The Harmful, Material Lie

Other times, it is clear that the stakes are higher in the lying/truth-telling dilemma. The lie is "material" -- in legal terms, it's significant enough to make a real difference.

Here's an example. An acquaintance is interviewing for a job, and asks if he looks okay. You notice that he has an enormous piece of spinach on his tooth but tell him that he looks great anyway. You are in a hurry and don't want to bother helping him fix his appearance. Relying on his trust for your word, he goes to the interview and makes a bad impression.

You could have easily foreseen this result but instead of helping him with the truth, you chose to say what you needed to say to avoid spending more time with him. Your lie harmed him, and the truth - "you have spinach on your tooth, but I don't have time to help you remove it" -- would have been the better course. He could then stop in a restroom before appearing for his interview. The lie is not insignificant, because it leads to predictable results that harm the victim of the lie.

Though such a lie is wrong, however, it does not seem to rise to the level of misconduct appropriately subject to the criminal law. We generally expect that some people have proven trustworthy, and can be believed, and that others have not, and cannot. Most people would probably find governmental regulation of your spinach interaction with your acquaintance to be undesirable and unduly intrusive.

Occasionally, however, lies predictably have life and death consequences. If Jane calls the police and claims falsely that an armed robbery is in progress at a particular convenience store, then she diverts scarce resources away from actual crime. In addition, she may cause the police to take measures, upon entering the store in question, that would be appropriate to an armed robbery situation but, in fact, needlessly risk lives when there is no such a threat.

This sort of lie does implicate the types of concerns that animate criminal laws, such as laws that prohibit us from facilitating a crime.

For similar reasons, lying to an unstable man about his wife's fidelity - as Iago did with Othello, for example - can be tantamount to waving a loaded weapon in a crowd.

The Beneficial, Material Lie

There is yet another class of cases, one in which a lie is significant and will affect people's behavior in important ways, but its foreseeable consequences are beneficial rather than hurtful.

Such lies are justified (again assuming that one is not a purist on these questions). An example might be telling a drunk person in a bar that you don't know where his car keys are, when you actually saw them fall on the floor and get kicked under a table.

If you told the man where his keys were, he would likely retrieve them and drive away, thus endangering his own and others' safety. Because of your lie, lives may be saved.

In short, lies may be either insignificant; material and wrong; or material and justified. In most cases, regardless of the category, we will not want to apply the criminal law to lies but will instead leave such matters to the ebb and flow of human relationships.

On occasion, though, a lie so clearly works in a manner to facilitate or encourage criminal behavior that it is appropriate to treat it like any other communication in the service of a crime.

Rice Revisited

Where does perjury by an executive official fall within this tripartite scheme?

Perjury is generally defined as a material misstatement while under oath, so that irrelevant lies - even sworn ones - do not ordinarily subject the liar to criminal liability.

When misstatements are material, however, the ritual of taking an oath to tell the truth converts lies into a crime and rules out any and all justifications one might put forward. As long as she refused to testify under oath to the 9/11 Commission, then, Condoleezza Rice was apparently maintaining her prerogative to tell material lies without risking criminal prosecution.

Ultimately, the White House succumbed to public pressure and agreed to have its National Security Advisor testify to the Commission. This was the right decision.

Suppose that - as many suspect has already occurred with respect to the Iraq War - our executive branch officials lie to the American people in order to motivate important votes, and those lies lead to unnecessary and unwanted death and injury.

In that case, such lies, whether under oath or not, should be treated as the crimes that they are and prosecuted to the full extent of the law.

Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark.

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