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By Gary T. Marx
I have no sympathy for those who are crybabies about the fact that police officers are selling to those who want to buy drugs. We use every legal means that we can. We want everybody to know that the next drug buy may be from a police officer.
Cohen (1985) offers a good discussion of this. One manifestation is the expansion of undercover police practices as part of the rise of the new surveillance (computer dossiers, electronic location monitoring, drug and DNA testing, video and audio monitoring, etc.). The new surveillance tends to be differentiated from the old surveillance by at least ten major characteristics:
F. Scott Fitzgerald's observation that there are no second acts in American life certainly applies to the fixity of a book in print. But persons of the pen have the luxury of reflecting on and updating the record elsewhere. In this chapter, I discuss some recent developments and research. I also consider some professional and personal questions that I was left with upon finishing this project.
The undercover tactic has continued to be used in imaginative, if sometimes questionable ways. Recent elaborations include game wardens using a lifelike target device robo-deer as a means of ensnaring poachers; anticrime decoys used to protect homosexuals and tourists in rented cars; stings in which postal authorities mail offers of illegal pornography and then arrest those who respond to their offer; the purchase and sale of endangered species such as Mexican red-kneed tarantulas or parts of species, such as the genitals of bears and walruses for which there is an Asian aphrodisiac market; and entering false information into computers to catch those illegally accessing systems. Reverse stings in which police sell rather than buy drugs have also increased in prominence.
After work on Undercover was finished in 1987, seven first-person accounts and a comprehensive model for practitioners appeared (LaBrecque 1987; Goddard and Levine 1988; Pistone and Brasco 1988; Murano and Hoffer 1990; Wansley and Stowers 1989; Wozencraft 1990; Rothmiller and Goldman 1992; Carter 1990). I approached these with curiosity: would they suggest important issues that I had left out or misinterpreted? While offering rich narratives and examples to supplement those in the book, they did not suggest the need for major revisions or extensions. In this sense I think they provide some external validation.2
Were I to revise the book today I would treat a number of additional topics beyond updating an ever-changing historical record.3 But here I wish to merely update the book by reference to some recent developments and research.
In writing about any contemporary topic, one risks being out of date the minute the writing stops.4 I recall the case of two political scientists whose book explaining how Lebanon was able to sustain a multiethnic democracy was published just as the Lebanese civil war started. While not in that league, Undercover was wrong in suggesting that the political misuses of covert means at the federal level appeared to be behind us.
The study documented the increased significance of undercover operations for criminal investigations. But it also reflected a belief that surveillance merely because of a person's legal political beliefs and actions was not likely to be a major problem. The FBI had responded to the abuses revealed during Watergate and the COINTEL programs by severely curtailing political surveillance and by developing restrictive guidelines. A new generation of agents seemed too principled, busy, and regulated to engage in the kinds of often illegal and immoral domestic political surveillance that characterized the 1960s and earlier periods. The undercover activity that had once been directed at persons who held unpopular beliefs was now directed at those engaged in white-collar and organized crime. Yet soon after the book was published, documents released under the Freedom of Information Act and congressional hearings revealed a massive spying campaign against critics of the administration's Central American policies (Gelbspan 1991).5 Some of the CISPES (Committee in Solidarity with the People of El Salvador) investigation was illegal and much of it violated the bureau's own policies.
The bureau apologized for the investigation, acknowledged that mistakes were made, and sanctioned some agents. Yet because this investigation was not defined as domestic, it was possible to get around the guidelines that restrict domestic investigations. In addition, under a Reagan doctrine known as active measures, a domestic group that criticized a U.S. policy that was also being criticized by the Soviet Union could be subject to surveillance. The spirit of the guidelines was also violated by delegating some-functions to private groups that could take actions the government was prohibited from taking.
In considering covert means, there is an important distinction between criminal and political investigations. Because the latter rarely result in criminal prosecution and are governed by executive guidelines that can be (and have been) changed at will, they raise very different policy and oversight issues.
A schizoid response is called for, in which any enthusiasm one may have for the tactic when used for certain types of criminal investigation must be balanced by opposition when the tactic is used for political investigations. This is one of the paradoxes at the heart of covert means in a democratic society. In legitimating one use, we run the risk of increasing its use elsewhere.
Undercover Under The Covers: The Mayor Barry Case
Yet as the Mayor Marion Barry case suggests, separating the criminal from the political investigation can be difficult. The arrest and trial of former (and recently reelected) Washington, D.C., Mayor Marion Barry after he purchased drugs from an ex- girlfriend raised a variety of ethical and policy issues involving police deception: Is it wise to focus scarce resources on occasional users rather than dealers? If a case for indictment cannot be made before a grand jury or before a judge for permission to search, wiretap, or bug, is it appropriate to move to an undercover temptation for which there is no legal minimum threshold? Was the grand jury used in a manipulative way to obtain a felony indictment (Barry's allegedly lying to it about cocaine use is a felony, while his possession of cocaine was only a misdemeanor)? Was the effort to get Barry on a drug charge undertaken after earlier efforts to obtain direct evidence of corruption against him failed? Is it sound social policy to use the criminal law not for prosecution, but as a resource to negotiate (e.g., the prosecutor's hint that he would exchange leniency in return for the mayor's resignation)? Should special criteria be applied before a political figure becomes the target of an undercover investigation? What of the speculation that the highly visible prosecutor in the case had his own political aspirations? Is there a racial patterning to the selection of targets in recent sting operations or does the apparent pattern simply reflect greater black prominence in political life? Shouldn't the government try to block the flow of drugs rather than provide them? Should it have intervened after he purchased the drugs rather than letting him proceed to use them? What if he had suffered a heart attack or other serious health damage from the cocaine? Should the government be offering its citizens potentially toxic substances?
A particularly interesting question involves friendship and undercover investigations. When, if ever, is it appropriate to use friendship and the lure of sex as part of an investigation? This depends on the context (Marx 1992b). A typology can be created by combining dimensions of whether or not emotional intimacy and sexual intimacy are present. The most problematic law enforcement use of the tactic is seduction (faked emotional intimacy mixed with sexual intimacy). Five situations in which seduction most commonly occurs are (1) blackmail, (2) stigmatization and/or disruption, (3) general intelligence collection, (4) evidence or information collection for a prior offense, and (5) evidence collection for an anticipated offense.
Undercover considered a number of material and legal resources that encouraged the use of covert tactics. Judicial rulings and legislation continue to encourage undercover investigations. In an Illinois case, the Supreme Court voted eight to one that the Miranda ruling was not required in prison settings. In this case, an undercover agent posing as a prisoner obtained a confession from a jailed suspect (although it was for a different crime than the one for which he was imprisoned; Illinois v. Perkins, 110 S. Ct. 2394, 1990). In another case the Court held that it is legal to rummage around in people's garbage.
But there were new legal restrictions as well. Thus a federal district judge in Phoenix issued a decision that limited the government's authority to send undercover personnel to secretly watch and record church gatherings. The Constitution bars the government from unbridled and inappropriate covert activity that is intended to abridge the First Amendment right of freedom of religion. However, a religious gathering can be infiltrated without a warrant if an agent is invited to participate in criminal activities. The ruling grew out of a case against Arizona churches that had offered sanctuary to illegal aliens from Central America. In the 1986 trial, ministers and priests, among others, were convicted of conspiracy and harboring aliens. The churches claimed they were offering refuge from political persecution. As part of the investigation, informers working for the Immigration and Naturalization Service attended church and recorded sermons (New York Times, 12 December 1990).
Another potential boost comes from what has been described by the Attorney General in several newspaper accounts as the largest reallocation of FBI manpower in the bureau's history. This involved the 1992 shifting of 300 agents from cold war counterintelligence work to the investigation of gang violence and related crimes. Domestic criminal investigation involves a different ethos and methods than political counter-intelligence, but the clandestine cloak and dagger mentality and experience of these agents would seem likely to encourage covert means, whether directly or indirectly.
Congress increased the forfeiture authority of the Justice Department and Customs Service, extending it to pornography, money laundering, and espionage, and permitting the sharing of seized property with local law enforcement agencies. Between 1984 and 1994, there were a large number of federal forfeitures worth $3.6 billion, and another $1.7 billion was expected (Boulder Daily Camera, Dec. 11, 1994). With this comes the danger of going after targets because of what the government stands to gain, rather than because of the seriousness of the offense or offender. In what hopefully will not become a national precedent, the small town of Helper, Utah is offering to help its police officers by giving them cash bonuses of 12% of any seized drug-related assets (Law Enforcement News, April 15, 1995). The feeding frenzy potential of such an incentive system is obvious, and personal use of such funds is prohibited at the federal level. Revenue raising and maximizing profit for the government can displace traditional criminal justice goals. There are also issues of justice and equity, since a civil court is involved, the standard is the preponderance of evidence rather than the more stringent beyond a reasonable doubt. One need be neither charged with, nor found guilty of, a crime to have property seized by the government.
The funds available for informing have continued to increase. According to data provided by federal enforcement agencies, funds for informants went from forty-three million dollars in 1987 to sixty-three million dollars in 1989 (Atlanta Journal-Constitution, 31 March 1991). By 1995, this was approximately one hundred million dollars. A 1988 asset forfeiture law permits prosecutors to share up to 25 percent of seized assets with informants. In 1990, congressional legislation authorized paying whistleblowers up to fifty thousand dollars for information leading to the prosecution of savings and-loan offenders.
One informant who had earned more than one million dollars in recent years (including five hundred thousand dollars from a single case in Kansas involving a marijuana ring he infiltrated) reports that he would like to be an undercover officer, "but cops just aren't paid enough" (Atlanta Journal Constitution 31 March 1991). The implications of such incentives for informer abuses, as well as for the morale of the less handsomely rewarded police with whom they work, are worthy of study. Would the adversarial playing field be more level if defendants could also pay witnesses for testimony that results in their being found not guilty? In an adversarial setting where, under penalty of perjury laws, individuals swear to tell the truth, why is payment restricted only to the prosecution? Is justice better served by paying to find one guilty than to find one innocent?
These new financial incentives, along with the creation of mandatory life imprisonment or twenty-year minimum sentences, and the elimination of parole for certain drug offenses, has made it easier to attract informants.6 A new (or expanded) class of superinformants has appeared.
This is also the case for weapons violations. In 1987, strict federal sentencing guidelines were adopted that mandate harsh penalties for weapons offenses. For example, a convicted felon found guilty of possessing a weapon faces up to ten years in prison. This has offered authorities a new resource to persuade those facing such charges to become informants. The definition of violent felon is rather broad and it permits holding a federal hammer over persons who in the past would have remained in state courts. It also increases the incentive authorities have to manage the environment so that felons are arrested in possession of weapons --in some cases as a result of being sold the weapon by an undercover agent (e.g., through the joint federal-local Achilles Task Force).
Undercover Work And Deviance Amplification
The conflict of goals between preventing crime and encouraging it in order to apprehend is nicely illustrated by a San Francisco officer. He is one of seventeen who patrol the streets in plainclothes looking for parking violators and meter jammers. He reports that his unit is effective because if you have a uniformed officer there, no one is going to wipe off their tires (San Francisco Chronicle, 13 April 1989). To which the skeptic might respond, "Isn't that what we want uniformed officers for3/4 to prevent violations?" Do we really want to encourage people to break the rules because we want them to think no one is there? Underlying the officer's remark is the need to write citations in order to meet productivity goals. The unstated assumption here is, "We want to create a situation in which, because they never know whether or not a police officer is watching, persons won't wipe off their tires." This myth of surveillance comes with other costs, but it is believed to be more efficient than obtaining that result only when a uniformed officer is actually present. From a standpoint of empirical impact, we don't know if it is a myth.
The issue of the sometimes conflicting goals of preventing crimes and making arrests can also be seen in the case of Malcolm X's daughter, Qubilah Shabazz, who was accused of hiring a pretend hit man to avenge her father's death. When the informant was asked why he didn't try to discourage the plot, he said, "I'm supposed to sound like a murderer, remember? A hit man wouldn't agree to kill someone and then say it's wrong" (Newsweek, May 15, 1995). When a suspect is hesitant (e.g., Shabazz indicated that she was leery and wanted to put it on hold, and missed a planned meeting), should the informant respect this apparent withdrawal or ambivalent intent, or persist? In this case, 38 of 40 phone calls were initiated by the informant, and he appears to have done most of the talking on the tapes.
The issue of when undercover police should intervene to prevent a crime vs. letting it go on too long has continued to raise moral and practical questions. Thus in Dallas an undercover officer watched a woman being raped by a group he had infiltrated. He pretended to be sick to avoid participating. He stated, "You don't want to ruin your credibility" (New York Times 11 August 1989). Would he feel the same way if his wife, sister, or mother had been the victim?
In New York, police had prior information that a drug dealer planned to rob an undercover agent. They did not intervene to stop this and the agent was shot. Some critics within the department claimed that it should have been aborted. Dangers such as this are reflected in agent folktales. Question: What does an undercover agent do? Answer: He's like the kid they use down in Louisiana for alligator bait. They tie him to the end of a rope and he walks out into the swamp. All the kid can do is hope they jerk the rope back in time (Goddard and Levine 1988).
Police in a Long Island sting were criticized for permitting the illegal dumping of toxic waste to continue for what critics saw as an inordinate amount of time. Pollution was created in order to fight it. In a non-enforcement example in Boston, a drug informant was permitted to run an after hours club in exchange for his cooperation. This led to neighborhood complaints about noise, disorder, and increased crime and to beliefs about the police corruption that permitted the place to flourish.
An inquiry in Los Angeles found that a nineteen-member special surveillance unit had often failed to prevent those it was watching from attacking people in armed robberies and burglaries. While in many cases they could have been arrested beforehand for lesser offenses or on existing arrest warrants, detectives waited for a violent felony to occur because that would make for a stronger case and a longer sentence. The department has now implemented a policy instructing officers to protect potential crime victims even if this jeopardizes an undercover investigation. It reads, "reverence for human life must always be the first priority when considering the extent to which a criminal incident is allowed to progress or deteriorate . . . during a stakeout or the surveillance of known criminals."
The unit has also been accused of dispensing punishment before trial. In a successful civil trial, a federal jury found the Los Angeles chief of police and nine officers in the surveillance unit liable for the death of three robbers and the wounding of a fourth. The suit accused the unit of being a death squad prone to shooting suspects instead of arresting them. In this case police had tracked the robbers for weeks. As the robbers entered their getaway car after holding up a restaurant, the officers opened fire, later claiming the suspects had pointed guns at them. The weapons turned out to be unloaded pellet guns.
The issue of intervention, as well as an example of unintended consequences from covert surveillance, can be seen in a St. Louis case. The FBI, hoping to record evidence of terrorist activities, planted listening devices in the apartment of a Palestinian-American. But instead it recorded the suspect's murder of his teenage daughter. An incriminating conversation ("Do you know that you are going to die tonight"?) and the girl's screams as she begged her parents not to kill her) were captured by an automated listening device. The FBI surveillance unit was not staffed the night of the murder. It is not clear whether authorities could have intervened in time to prevent the murder at that time if they had been listening. However, there were earlier recordings of phone conversations in which the accused discussed various methods of getting rid of the daughter (New York Times, 28 October 1991).
Undercover mentions parking tickets given to unmarked vehicles as among the least of the unintended consequences that may occur, but gave no idea of its magnitude. In Boston in 1989, twenty thousand parking violations were dismissed as part of an agreement with agencies engaged in undercover law enforcement or investigative actions. One thousand of these were for the more serious public safety violations such as double-parking and parking by fire hydrants (Boston Globe, 14 February 1990).
The resources expended in an undercover operation can generate pressures to produce cases to justify the outlay. But when a sting goes awry the pressures may be even greater. In the largest misconduct award in New Hampshire's history, a physicist received a one million dollar court settlement. Police received a tip that thieves wanted for working a diamond swap at a chain store were to try again. A sting was set up and store personnel went along with the sting and handed over the jewels. Unfortunately the thieves then got away. Under enormous pressure police arrested an innocent man in spite of almost nothing to link him to the crime. In their determination to solve the case, police ignored evidence that would have cleared him and charges were not dropped until fourteen months later (Boston Globe, 8 December 1991).
Panamanian general Manuel Ortega appears to represent the ultimate in the intermeshing of cops and robbers. His defense claims that his drug and gun smuggling activities were undertaken with the tacit support of the United States, as part of its anticommunist activities. He worked with both the DEA and the Medellin drug cartel. He earned praise from the DEA for his cocaine seizures, which he then appears to have sold back to the cartel. He also sold it guns and provided photographs and addresses of DEA agents in Panama (New York Times, 24 November 1991).
In 1993 there were allegations that top officials of a ClA-funded Venezuelan anti-drug unit smuggled several thousand pounds of cocaine into the United States. The CIA reportedly asked the DEA for permission to let the dope walk to facilitate intelligence gathering. The permission was denied but the shipment was still made. The chief of the anti-drug unit acknowledged that he had run loads to the United States independently, but he said that this was done as a law enforcement technique. (Washington Post, 19 November 1993)
An example of unintended harm to innocent third parties can be seen in DEA officers putting 90 pounds of cocaine on a flight from Belize to Miami. When the plane stopped in Honduras, drug sniffing dogs discovered it. The three crew members and three passengers who knew nothing about the drugs were beaten and held in prison for 12 days. One would hope that-the risks from loss of control over unaccompanied evidence in transit could have been anticipated in deciding whether or not to carry out the plan, and if carried out, that a contingency plan for failures would have been developed.
The fabrication of evidence and exploitative informers received renewed attention in a Los Angeles scandal involving jail house informers. An inmate demonstrated how he could fabricate the confessions of other inmates without ever having talked to them. Using the telephone and given only the name of a murder suspect the inmate identified himself as a bail bondsman and was able to obtain information from official sources about the crime. He then called the bailiff at the jail I where he was a prisoner and identified himself as a district attorney and ordered himself and the suspect transferred to a court for an interview. He could then say that he was with the suspect on the bus when he confessed. This would be admissible in court since authorities had not arranged it. The president of the Los Angeles Criminal Courts Bar Association, in commenting publicly on the revelations in the case, said, "All we've done is crack the egg here. The yoke will spill out all over the country."
A nice example of the symbolic and communicative aspects (and the potential for deflating official images) appeared in a speech given by President Bush on drug strategy from the Oval Office. The president dramatically held up a bag of crack purchased near the White House and said "I think it's great because it sent a message to the United States that even across from the White House they can sell drugs." Later it also sent a message about manipulation and image creation. It turned out that the seller had been lured to the site by a DEA agent. He did not know where the White House was until the undercover agent who arranged the buy told him how to get there. There are also messages that boomerang with embarrassment. For example, a group of coast guardsmen photographed with the president congratulating them for a job well done against drug smugglers were later indicted themselves for smuggling and the picture ran a second time.
Barker and Carter (1989) suggest the lovely phrase "fluffing up the evidence", in describing a form of police lying. Undercover means nicely lend themselves to such activity. A police inspector in the Netherlands, in considering deception via omission, states, we do try to keep things secret, but without lying about it. Sometimes it may seem like we put the judge on the wrong track, lay a mist over it (Klerks 1995).
Effects On Agents
Undercover noted the unintended social and psychological costs that undercover work can have for its practitioners. Girodo (199la) offers some systematic data on this in seeking to discover how personality traits interact with work situations to affect mental health and drug problems. He studied 271 federal undercover agents who volunteered (of 350 who were randomly asked). Self-reports of drug and alcohol abuse and disciplinary infractions were positively correlated with the extent of undercover experience. This is related to a prior research finding that accumulated experience in undercover assignments is associated with a variety of social and psychological problems.. For example, in a related study Girodo (1991 b) found undercover experience to be correlated with job dissatisfaction. But the effect of the undercover experience is mediated by the personality traits of the agent. Agents enter the corrupting undercover environment with varying patterns of character flaws and assets. Problem outcomes were most likely in those agents shown by personality tests to have either poor impulse control, neuroticism, or a desire for new experience. Agents assessed as having a disciplined self-image were at lesser risk.
A study by Farkas (1986) of undercover officers in Honolulu found that more than one-third reported negative changes in their social relations, stress over being with family and friends in public, and anxiety over being unable to discuss their work with those close to them. A study by Pogrebin and Poole (1993) of forty officers with undercover experience from diverse agencies illustrates these and related themes.
Among the implications of the above research is the need for greater vigilance the longer an operation goes on and the greater the accumulated undercover experience of an individual, and the importance of selecting in as well as selecting out.
Among the most tragic of unintended consequences involves the friendly fire shooting or assaults on undercover officers by other police unaware of who they are. In one such incident, a black officer holding a suspect at gunpoint in a New York subway station was shot by white officers who thought they had come upon a robbery. Following this, a black officers' association urged its members to refuse plainclothes assignments (New York Times, 19 November 1992).
Strategies Of Deception
As the work of Erving Goffman and others suggests, there is a generic structure to deceptive and manipulative interaction, regardless of the context. Consider, for example, the similarities between con men and undercover agents. There are parallels between agents and con men in the presentation of false selves and environments and in developmental stages, as one moves from the initial contact, to gaining confidence, to the action, to disclosure.
The mark's motivation to behave illegally is central to both con men and police (when undercover work does not involve entrapment or provocation). Con men say they do not steal: instead the mark literally thrusts a fat bankroll into their hand in hope of illicit gain. Compare the con man' belief, "You can't cheat an honest man", to Mel Weinberg's (the central figure in the Abscam case) observation that "a guy's either a crook, or he isn't. If he ain't a crook, he ain't gonna do anything illegal no matter what I offer him or tell him to do." In both cases such beliefs serve to neutralize cultural prohibitions against deception.
Some similar personality characteristics, or at least skills, may be shared by both --especially the ability to read human nature, to persuade and inspire confidence, and to think on one's feet. Maurer's (1974) appreciation of the grand thinking, the unlimited gall, the sure touch, the high intelligence of the best con artists such as Yellow Kid Weil also might characterize some legendary undercover agents.
The ironic and dramatic possibilities are indeed wonderful should a con man pretending to be a police official cross paths with an agent pretending to be a con man.
The deceptive ploy of using the media to create concern in suspects about a planned arrest in order to get them to talk without benefit of an attorney being present was illustrated by an FBI investigation of commodities dealers in Chicago. In what appears to be a careful strategy, information about the investigation was leaked in an apparently successful effort to scare potential defendants into cooperating. Authorities have much greater leeway and bluffing resources in questioning before an arrest is made than after it is. Apart from due process questions, this also appears to have damaged the reputation of persons who were never arrested (Protess 1989).
Jacobs (1992) has identified four modes of deception used by narcotics agents in one city: prior rehearsal, appearance manipulation, and verbal and physical diversion. He has also studied the counter to agents' efforts at dissimulation --the process by which targets try to discover whether someone is an agent (Jacobs 1993). His interviews with thirty-two heroin user- dealers suggests two major deception clues: trend discontinuity in which purchasers change their routine behavior (e.g., by bringing in a stranger or by significantly increasing the amount they seek to purchase) and illegitimate appearance and demeanor.
Irony could be the subtitle for any study of the intermeshing of social control with deviance (Marx 1981). To the many ironies and trade-offs discussed in Undercover, one can add the fact that a suspect's not knowing the true identity of an agent puts the agent at greater risk, although it is also a necessary condition for an effective investigation. In discussing the celebrated Florida Mi-Porn case (in which two agents posed as pornographers for several years) LaBrecque notes "[T]hey pushed out of their consciousness their major fear: that if they made a mistake, their targets might kill them before they found out who they really were.... [T]here was safety in being discovered to be an FBI agent." (1987:)
In this case there is also irony in the fact that the devious appearance and nervousness which made Pat Livingston (alias Pat Salamone) such a good undercover agent worked against his credibility when he took the witness stand. To enhance their credibility as drug users, agents may bring a variety of props such as a spoon and syringe to their encounters with drug sellers. Yet ironically this effort to appear real can lead the dealer to request that the agent then use the drugs on the spot as a condition for the sale (Jacobs 1992).
As part of the more general growth of the private security industry (related to public budget constraints) and continuing concerns over drugs and information leaks, private undercover operations have continued to gain in prominence. These vary from full-scale corporate espionage cases to the personals -- background investigations requested by individuals. The pool of former government covert agents available for private sector work has continued to grow (including the central figure in the FBl's expanded use of undercover means).
Private investigators standing between a legal system that is not always good and clients who are not always bad have a unique vision and freedom. Neither cops nor crooks, their position can be powerful, even if fraught with moral ambiguity and temptation.
The Wackenhut Corporation's newly established special division for covert corporate investigations got off to a rocky start in 1990. It was hired by managers of the Trans Alaska Pipeline to investigate the loss of confidential company documents. But according to 1991 hearings held by the House Interior Committee, this escalated into a more questionable investigation of its critics. After six months and $290,000 the investigation was canceled (Committee 1991).
Highly trained investigators, sophisticated eavesdropping equipment, and a sting operation were used against a critic who passed on documents regarding environmental and safety problems to regulators and the news media. In an effort to discover his sources, agents set up a phony environmental organization to gain the target's confidence. He invited them to his home, where they stole documents from his desk, went through his garbage, and obtained his personal telephone records. In the logical, although not moral equivalent of government targeting the private sector, the agents also considered targeting Congressmen George Miller (the new chair of the House Interior Committee) in order to have him indicted for theft of corporate documents and to politically embarrass him.
One new specialty niche within the broader field is the ten to fifteen small firms that monitor activists concerned with social issues such as the environment, nuclear power, and animal rights. Their activities vary from simply using public materials to track persons and issues to undercover operations and infiltration.
Keeping track of protest movements is seen to be a wise thing to do for businesses involved in sensitive work. This is a strand of the broad move toward strategic and anticipatory business planning. There is a perceived need for intelligence not only on markets and suppliers, but on rivals and critics.
The president of Perceptions International in Connecticut states, "We look at the animal-rights movement in general." This includes certain "philosophical and tactical trends" of interest to clients (Boston Globe, 9 July 1989). One such client was U.S. Surgical Corporation, a group that was criticized for using anesthetized dogs to demonstrate its surgical staples. But the intelligence firm also gets specific. One of its employees infiltrated an animal-rights group and befriended a woman who was later arrested for planting a bomb in the parking lot of U.S. Surgical.
No-fault divorce laws have greatly reduced the use of private detectives for domestic investigations. But that is changing. Concern over sexually transmitted diseases and fraud have encouraged increased use of private detectives to investigate possible suitors. Some investigators actively seek out clients by placing adds directed toward singles, such as "Do you know who you're dating? Now more than ever it's important to know." One investigator notes, "[T]wenty years ago this was unheard of, but now we're getting as many single people as married." Women are much more likely to hire such investigators than are men. One investigator reports, "[T]here's nothing we can't get. It may not always be public record, but it can be obtained." Some ways of doing this --by watching targets, going through their garbage, subterfuge, or rewarding or coercing those entrusted with information. For $250, an Ohio company called Test-A-Mate even offers attractive female decoys who will test the loyalty of a partner. They find out where the target is likely to be and then sit near him, but won't speak unless spoken to first.
Individuals are also covertly watched not because of their uniqueness (as with the above), but because they are seen as representatives of more general social types. The latest development in market research is to use discrete "people-watchers". As one expert said, "[T]he best way to get an in-depth understanding of consumer values is to watch people buying and using products." Cultural anthropologists now observe and often videotape consumers in stores, shopping malls, and even their own homes.
Such techniques permit researchers to get underneath the surface. The director of research for one large company states, "We look in the refrigerators, the kitchen cabinets and the closets. We ask people to show us their favorite things. we learn a lot more by looking around than we'd ever find out just asking people about their homes. Nothing is hidden from us." Families that permit researchers to come into their homes presumably consent and are paid, but in large stores and shopping malls individuals are unlikely to be warned that they are being watched.7
As part of a study of cultural images and surveillance I have analyzed visual jokes and cartoons (Marx 1996). The names, props, and sets used in undercover investigations lend themselves to humor that is both intended and as a result of uncontrollable surprises. Some humor is in the use of words that have double meanings. As with a play, the audience knows what many of the actors do not. Other humor is like a situational comedy, at least for the agents and broader audience.
In Lincoln, Nebraska, wanted suspects were arrested when they came to collect a free pair of athletic shoes in return for filling out a survey. They had been sent an invitation to show up at the new Grabar Athletic footwear store: "A new concept for people on the run." Gray Bar Hotel is a slang term for jail. After the arrests the following sign was placed on the door: "Grabar Shoes closed. We'll catch you next time" (Boston Globe, 5 May 1989).
A marriage celebration in Michigan turned out to be a new form of the shotgun wedding in which the daughter of fast Eddie Lang was married by the Reverend Billy Ray Hawk. The multiagency sting resulted in the arrest of sixteen unsuspecting guests who had previously been involved in drug deals with the groom, an undercover agent. Guests received matchbooks engraved, "Thank you for sharing our joy." When the band named SPOC (cops) played the song "I fought the Law and the Law Won," a police sergeant asked for the police in the audience to please stand up. Those who remained seated were arrested.
When suspects visited her house, undercover agent Kim Wozencraft frequently played "Everything You Do Will Come Back to You" and a song by Steely Dan with the lines "Agents of the law, luckless pedestrians, I know you're out there somewhere."
In New York City an operation using policewomen pretending to be prostitutes was called "Operation Losing Proposition."
There are also what can be called last laugh situations. For everyone who has ever seen an example of exceptionally bad driving behavior and wished that an officer was there, the following Boulder, Colorado case is heartwarming. In what is called a game of road stalk, a young man in a Jeep followed another vehicle too closely with his headlights glaring. The other car turned, pulled over, and then turned again, and the tailing car stayed aggressively with its prey. The prey turned out to be a police officer in an unmarked car. The stalker was arrested for misdemeanor harassment.
In an ironic twist, a would-be car thief in a Lakeland, Florida, shopping mall broke into a police surveillance van while three officers were hiding in the back. One of the officers reported, "[I]t was hard to keep from laughing as they watched the thief start the car" (Boston Globe, 24 December 1990).
A 17 month sting directed at importers and sellers of illegal eavesdropping equipment in 40 spy shops seized pens, calculators, electronic power strips, and telephone jacks with hidden bugs. In a lovely irony which must have given a smile to those in the know, agents used sophisticated listening devices to document their transactions. To their chagrin, shop owners refrained from using the anti-bugging devices they also sell. While such devices have been illegal at least since 1968, this rare investigation was apparently triggered not by a desire to protect citizens' privacy, but to keep the devices out of the hands of drug dealers after a bug was found in a drug shipment which alerted smugglers to the discovery (New York Times, April 4, 1995).
While the humor may release tension, it may also be supportive of mistreatment of suspects. The use of deception makes it possible to view the deceived as a dupe. This can encourage cynicism and even contempt for the subject. This may make it easier to take and to justify questionable actions since they are directed at someone whose moral worth is already impugned and lessened by their being taken in.
Emerson wrote, I hate quotations, tell me what you know, and playwright Tom Stoppard has said it is better to be quotable than to be honest. But such oppositions are not necessarily present. For instrumental and aesthetic reasons, my study made extensive use of quotations. They can prepare the reader for what is to come, humanize abstractions, and serve as a shorthand for recalling longer arguments.
Quotes also help us grasp the phenomenology of investigations (an important topic for further research). For example, an experienced agent reports, "[T]he best undercover is exalted in what he's doing, he is loving it, it's almost a sexual thrill." Whatever the dangers (and perhaps because of them) undercover work can also be exciting and even addicting. Jack Katz (1988) has emphasized the high and the excitement of crime for some actors. The appeals of the subjective experience must be understood. Secret investigations can be highly engaging and offer a macho thrill involving the hunt, chase, and capture. There is a similar phenomenon for uniformed police.
The excitement also may apply to covert participation in illegal activities, apart from the chase aspects. Kim Wozencraft, in a semifictional account of her activities as an undercover narcotics agent reports: "I loved getting wired and staying out all night, staggering from bar to bar to private home, peeling hundred-dollar bills off my municipal bankroll to buy dope. Smoke it, snort it, swallow it, fix it, mix that dope, go up, go down, go sideways, go so fucking fast that your tongue can't keep up with the neurotransmitter Ping-Pong championship popping in your brain. (1990)
Among some of the better quotations I have encountered since the book's publication that illustrate particular themes:
On moral blurring and means-ends complexities:
Some things are necessary evils. Some things are more evil than necessary. (John Le Carre, The Russia House)
Between two evils, I always pick the one I never tried before. (Mae West)
We are in a hell of a business. We do all the wrong things for the right reasons. (Burt Reynolds in Hustle)
I do my best to protect you and I may break a few rules, but I break them in your favor. (Raymond Chandler, The Big Sleep)
The greatest problem of any country is to deal with its enemies without becoming its enemies. (E. L. Doctorow, interview on public television,)
Send men that they may spy out the land of Canaan, which I give to the children of Israel; of every tribe of their fathers shall you send a man, every one a prince among them. (Numbers 13:1-2)
He who the sword of heaven will bear/Should be as holy as severe. (William Shakespeare, Measure for Measure)
See yonder justice railing at you thief? Change places and handy, dandy, which is the justice and which the thief? (William Shakespeare, King Lear)
We do try to keep things secret, but without lying about it. Sometimes it may seem like we put the judge on the wrong track, lay a mist over it. (Police officer, in Klerks 1995)
I have always operated at two levels, a personal level and a political one. When the two have come in conflict I have had to put politics first. This conflict can be very painful. I don't like deceiving people, especially friends, and contrary to what others think, I feel very badly about it. But then decent soldiers feel badly about the necessity of killing in wartime. (P. Knightley, The Master Spy: The Story of Kim Philby)
You have to get rid of your conscience. You've got to have the mind-set that you're going to make every dime you can off your friends, neighbors, mother or pastor, if they are doing something illegal. (Informant, Atlanta journal Constitution, 31 March 1991)
The simple truth is, I don't remember, period. (Ronald Reagan regarding the Iran-Contra affair,)
Every ship of state runs on a river of darkness. (Former CIA official)
[An agent states:] There are cases that you don't want to see come to an end because you don't want to arrest them. You like the people. You hate to see their lives ruined. You hate to think what are they going to think about you.... I can remember very distinctly going out and arresting these same people that had become my friends. I can't even talk about it now without getting emotional. (Pogrebin and Poole 1993)
There is no occupation that fails a man more than that of a secret agent. (Joseph Conrad, The Secret Agent)
Data protection means protection of criminals. (French police official, personal interview with author)
The country doesn't give much of a shit about bugging... most people around the country think it's probably routine, everybody's trying to bug everybody else, it's politics. (Richard Nixon, Watergate tapes)
The methods of intelligence services do not fit the moral standards of polite society anywhere. (Markus Wolf, East German Spymaster)
You know what I compare it [narcotics sweeps] to? The Dept. of Sanitation picks up our garbage every day. They know there's going to be more garbage tomorrow. Now, what would happen if they didn't? The city would be in chaos. It's the same thing with narcotics. We have to do these things. (Police official, New York Times, 25 December 1988)
They're [corrupt public officials] still out there. They're still dealing. It's a never-ending thing. We just don't have the manpower. The animals are running the zoo. (Prosecutor in Chicago judicial corruption case)
It's like squeezing Jell-O --it squirts out in other places. And we are squeezing the hell out of that Jell-O in the middle of the park [on displacement from a decoy operation]. (Los Angeles police officer)
We wanted to find out if there was a problem. You never know until you go in to take a look. (County Sheriff regarding a broad sweep using drug-sniffing dogs of all ten thousand lockers and all cars within a one-block radius of the eight high schools in Tazwell County,Illinois; there was no problem with drugs. (Village Voice, 2 October 1990)
Another high school investigation also shows the public relations advantages of the tactic, whether or not anything is found. In this case, a fifty thousand-dollar undercover investigation into drug use in a Colorado high school nabbed six students accused of peddling a few ounces of marijuana. A Sheriff's Department captain justified the operation by saying, "[W]e have reassured ourselves that there's not an immense problem in the school district here" (Denver Post, 19 May 1994). Regardless of its findings, the operation is also believed to send a strong deterrent message to students by putting them on notice that they can never be sure when such an operation is present.
For every smooth, well orchestrated scam, however, there seemed always to be one that came straight out of an Abbott and Costello movie. In such cases, you learned to operate according to what came to be known as Grippi's Law "If you fall in a fucking mud hole . . . check your back pocket real quick to see if maybe you caught a fish." (Wansley and Stowers, 1989)
You want to be as prepared as possible, even though that is somewhat impossible in this line of work. (Undercover narcotics agent, cited in Jacobs 1992)
The investigation seemed to have a life of its own and I was caught up in the middle of a merry-go-round that I could not get off. (Pat Livingston"," cited in LaBrecque 1987)
Scholars such as those represented in this volume, who choose to work on criminal justice issues from a broad, interdisciplinary, qualitative, skeptical, and often critical perspective, generally have a more difficult time than their colleagues whose feet are squarely planted in a single discipline and who quantitatively pursue microlevel questions defined by funding agencies and criminal justice establishments.
In this section I shift from a consideration of substantive issues to some more personal issues. My study of covert practices was published in 1988. It moved from being a boomerang (with its recirculation between author, sponsor, and publisher) to being a missile. But alas, even missiles leave remnants. I did not part with the book easily, although I did so gladly.
Doing an interdisciplinary book on a broad topic that mixes social science with social criticism and is aimed at academics, practitioners, and the educated public is a recipe for angst, self-doubt, and role conflict.
I address eleven issues here that are more professional than substantive. These go beyond the specifics of the study and touch more general concerns. There are empirical or practical answers to some of the questions and, where there are not, I know that the tension between polarities can be positive. But that insight does not eliminate the discomfort. Knowledge is one thing and feelings another. I offer these concerns (stated in the form of questions) in the preliterate and psychoanalytic tribal tradition of exorcising ghosts and demons by identifying them, and because I know many colleagues share them.
1. Is it appropriate for social scientists whose legitimacy and traditions involve ordering microempirical measurements with systematic theory to study broad amorphous topics, such as privacy, deception, authenticity, liberty, autonomy, and justice in an interpretive fashion? Wouldn't it be better to start with just one question, replicate prior research, or test a few propositions using rigorous methods and quantitative data? Perhaps, but when the topic has rarely been studied there is also a case for beginning by casting a broad net in the hope of stimulating more delineated studies. There is no correct answer to the recurring issues of forests, trees, and grasses. They are all there and are all important.
For social scientists trained in the positivism-happy times of the 1950s and 1960s, one risks (or at least imagines risking) peer rejection, a negative self image, and guilt in not following the standard linear model of moving from questions to answers, and theories to systematic numerical tests. Yet the specificity and rigidity of this model did not feel right for the surveillance project. Instead I started with an interest in the phenomenon of deception by the state and a feeling that it was wrong, or at least risky as public policy. I began with an answer, or better a feeling and looked for the questions. Some of the most important questions (how to balance the rights of the individual with the needs of the community) cannot be answered by empirical research. I also struggled with finding the right balance between description, classification, measurement, explanation, and prescription/proscription.
2. Even if one opts to focus on a broad topic, should it be approached from a multi- and interdisciplinary perspective, or from a narrower disciplinary base? Given the exploratory nature of my inquiry I sought whatever tools were available. But then as a nonspecialist one must confront the issues of poaching. I have chapters in areas in which my formal training goes no further than the sophomore introductory class (e.g., in history and in ethics) and I rely on secondary sources. Can/should we trespass with impunity/immunity in other professional vineyards if we like the look of their grapes? In trying to be all things to all people does one risk being nothing to anyone? Does a book need a disciplinary identity? Does breadth have to come at a cost of depth?
3. What does it mean to understand undercover police practices? What were the goals of my sociological inquiry? What does it mean to be interested in reasons as well as causes, in subjective experiences understood empathetically, as well as in more easily quantifiable objective factors? How can surveys and experiments be supplemented in the search for broad understanding? How can we make use of the truths of novelists and philosophers?8 What role does wisdom play in the results of sociological research? How does prediction relate to understanding? How does understanding relate to judgment? What is the difference between a social scientist, a journalist, an essayist, and a novelist? What needs to be added to Robert Park's observation that sociology is slow journalism?
The strictly scientific part of being a sociologist neither satisfies my soul nor can it do justice intellectually or politically to the topics that I am interested in. I want my writing to be scientifically accurate and to reflect wisdom. I want to advance knowledge and also contribute to the quality of life. The research I have done on social control issues in the last two decades is not the work of an activist who starts committed to an end and selects data to push it forward, nor is it the artist's work of unbridled imagination where anything is possible. But it shares something with each of them. Can we have it multiple ways?
One way to combine these is through fictive social science scenarios (whether dystopian or utopian).9 I think these should be as common in the tool kit of the social scientist as the ability to think conceptually or to analyze data. They can be a powerful form of communication, particularly for broader audiences. Yet they must be grounded by one's understanding of fact and social process.
In such writing the possible must be kept separate from the probable. But there is the interesting paradox that these are not necessarily independent. Given the power of scenarios, describing what is possible may effect the probability of its occurring by moving people to action. This lies behind George Orwell's observation that "I do not believe that the kind of society I describe necessarily will arrive, but I believe . . . that something resembling it could arrive" (cited in Crick 1980). Orwell was not making predictions, he was describing possibilities in the hope that this act could help avoid them.
4. Is it possible to balance social science and social criticism so that they are mutually supportive rather than corrosive? We need precision and passion. I don't want my concerns with civil liberties, inequality, and reform to distort my scientific observations --for both intellectual and practical reasons. Scientific understanding should not be sacrificed on the altar of commitment. Yet in this socially important area, I am more than the neutral scientist who just wants the facts (Marx 1972).
5. Can the same work make contributions to both social science and public policy? Must one choose between being an uncontaminated basic scientist seeking fundamental knowledge with little notion of how, when, where, or if it will be used; a hired gun seeking normatively based solutions to an applied problem someone else has defined; or a zealous, self-appointed social engineer-moral entrepreneur, peddling your own brand of expert truth and action?
How does and should knowledge relate to action? Do you have to know why in order to know how? Can academics, with their cross-case knowledge and tenure, who act as Monday morning quarterbacks with no responsibility for the consequences of the actions that practitioners must take really have much to say that is useful?
6. Is it possible to write so that one's work is well received by both colleagues and the educated public? In trying to reach for (or at least not exclude) a general audience, one runs the risk of dilution and being labeled a popularizer or even a journalist. Books that are accessible are often suspect in the halls of academe. Yet the trappings of academic respectability --literature reviews, sophisticated techniques, jargon, the assumption of a learned audience, and detached and spiritless writing --are hardly endearing to the average reader.
7. Was I taken in? In studying persons who are professional liars how far should I go in discounting what they say? Was I conned by some of the agents I interviewed? Aren't they in the best position to deceive an interviewer (described by one DEA agent as "a choir boy from M.l.T.")?
8. Between starting and finishing the book, my beliefs about the desirability of undercover tactics changed. Rather than seeing them as an unnecessary evil, I came to view their use in the United States under limited and controlled circumstances as a necessary evil. I gained excellent access to the FBI (something I would not have predicted from my days of Berkeley student activism). Does the change in my attitude say something about my openness and intellectual honesty in the face of a very complex situation, or was I co-opted? Had I come to that situation the madam warned the prostitute about: when one starts enjoying sex with the customers it's time to quit? At some level did I want to please and be liked by those sometimes heroic figures in almost white hats? Is the change partly a strategic ploy, since I want to affect the policy debate and know that a hostile polemic would likely preclude this? How can one balance and maintain a degree of respect/appreciation for our subjects and the sincerity of their beliefs, reciprocity (at least in so far as one doesn't harm them since they are giving something to us with little in return), with the need to be objective, to be faithful to our moral concerns, and not to be captured by our subjects?
9. How do you know when you are done? When do you let go? I stopped largely because of the sponsor's expectations, but could easily have spent several more years working on comparative international materials and on literary and film treatments. I was not quite ready to let go. But I know if I had worked on the book for several more years new topics would have appeared justifying further-work, in an endless spiral. In finishing a book on a contemporary topic one risks being out of date as soon as the work is published. On the other hand partial information is better than none at all.
10. With respect to book reviews, was it possible to balance the cynicism of the sociology of knowledge perspective with the belief that there really are empirical and normative truths that transcend social settings?
While I am in this work primarily for the process, I can't claim the degree of disinterestedness or disdain that some artists have for critics (e.g., playwrights who report they never look at reviews). This partly reflects the tentativeness of the scholarly enterprise in which we must learn from each other and any one person is limited in what he or she knows (occupational norms require scholars to be less arrogant than artists).
The many reviews of the book have been fair and more laudatory than I anticipated. Yet I was not above applying a sociology of knowledge view in which a book review is often a Rorschach test revealing as much, or more, about the reviewer as about the book. This is not to suggest that reviewers are simply hapless captives of deterministic social forces. But about half the time I could predict at least some of a reviewers' responses by knowing their discipline and politics. Thus a law professor and a historian found things to criticize in the book's legal and historical sections, respectfully. A sociologist of organizations praised the chapter that dealt with bureaucracy and lamented the fact that the conceptual concerns of that chapter were not found throughout the book and he was impatient with the literary quotes. In contrast, an ethnographer was most critical of the bureaucracy chapter, finding it too abstract and lifeless. A conservative prosecutor accused me of losing my cool and exaggerating the dangers to civil liberties, while a radical criminologist faulted the book for failing to fully consider the macrosystem that leads American police to behave in the ways the book documents.
It is not news that opinions have social correlates. It does not follow from this that all views are necessarily equal, whether scientifically or morally, merely because they are socially situated and constructed. So are tunnels and bridges, but they show great variation in quality and usefulness. Yet awareness of the social construction of perspectives can be a salve for critical reviews, if also a bearer of humility for laudatory ones.
11. What obligations did I have to promote the book in order to have it be seen and reviewed beyond the confines of a few specialists and friends? Many in the university have a naive faith that if you do good work it will be noticed (as in the film Field of Dreams they assume that if you build it the audience will come). But this is life, not the movies. At its worst this optimistic view involves a conceit about how important the work we do is and how eager the outside world is for it. As graduate students in a meritocratic appearing system, we are led to believe that the cream will rise to the top. If it doesn't, no matter, since virtue in scholarship is seen to be its own reward. Even in the American academic context, with only a hint of the genteel, scholarly aristocratic tradition, there is something a bit crass and self-serving about promoting your own ideas. Doing this risks contamination with the corrupt outside world.
The Twentieth Century Fund financed the study of undercover police and receives the royalties. I was glad to be finished and wanted to move on to other things. Yet I also felt a sense of responsibility to shape public debate. This was also consistent with the sponsor's interest in funding books that were accessible to a broad public and in having the results be widely disseminated.
I did not want the book's main impact to be taking up space in libraries and further depleting the rain forests. With more than fifty thousand books published each year in the United States it is rare that a book speaks for itself. I was not shy in calling the book to the attention of audiences whether colleagues, journal editors, policy makers, or bookstores.
Many reporters fell into one of two camps: either the devil's advocate, questioning my call for restraint in the face of serious crime problems, or the alarmist demanding to know what needed to be done to stop the sky from falling. I enjoyed educating the former about means and ends relationships in a democracy and the latter about frames of reference. However, I was frustrated by the media's inability to see the difference between a sociologist and a social engineer.
There is a difference between helping to identify the right questions and having the right factual and then normative answers. Having the right questions is a first step. I think I have those and I have many of the factual answers, but I am far from the normative and policy answers. My initial concern was to identify the issues and encourage public discussion, and only secondarily to offer solutions. Indeed these topics are fascinating because there often are no solutions in the usual sense.
The mannered debates of the academy are very different from the raucous rhetoric of the radio talk show open to all callers. The ethic of many of the ideologues I encountered in publicizing the book on television and radio was one of simple expediency: say anything that will advance your case. The standards of logic, evidence, fairness, and civility that in principle characterize scientific debate were not much in evidence.
Nor did I enjoy having to fit what often should have been complex answers into the time, space, and sophistication limits of the media format in question. Reporters often ask good questions, but conditions rarely permit your giving good answers. It is frustrating to be told, "Come on, Professor, never mind all the qualifications and hedges, just answer the question yes or no", or "We only have a minute, can you give us a quick summary of the book?" When the story is complicated and ambiguous and there are no easy answers, as with the case of covert policing, the yes/no quick fixes that media questioners are after aren't there. In trying to fit into their format, you must either appear glib and inauthentic or indecisive and academic. The latter is a surefire method for being edited out or not being asked back.
As the above suggests, I never felt fully comfortable marketing the book. I am more comfortable as a producer than a promoter, but books do not reach wider audiences on their own.
Yet in spite of these tensions there is a strong need for qualitative, interdisciplinary, and integrative approaches to broad topics of social importance. The softer social sciences residing between the humanities and the sciences are uniquely qualified for such inquiries. The building blocks of our highly specialized research endeavors must occasionally be brought together in an effort to see the broader landscape.
Comprehensive work on controversial topics takes time and scholarly independence. The Twentieth Century Fund was an ideal sponsor. I spent a decade working on the book and would not want to have been judged for tenure (or anything else) after only five years. The pressure to produce work quickly and to bring in research grants only on topics that established agencies want to fund can be highly dysfunctional.
There is no necessary opposition between policy and basic research, nor between writing for colleagues and the educated public. We need to search for wisdom, as well as knowledge. The former is impossible without the latter and the latter is pedantic and lifeless when divorced from the concrete details of everyday life and questions of value.
Back to Main Page | Top | Notes | References
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