‘Isn’t it a fact that you’re a scumbag?”
Our contretemps over the nomenclature of government informants has me unable to shake this arresting moment from my memory. In Manhattan, about 30 years ago, I was among the spectators basking in the majesty of Foley Square’s federal courthouse when we were suddenly jarred by this, shall we say, rhetorical question. The sniper was a mob lawyer in a big RICO case; the target was the prosecution’s main witness, the informant.
Until this week, I’d always thought the most noteworthy thing about this obnoxious bit of theater was the reaction of the judge, a very fine, very wry trial lawyer in his own right.
The prosecutors, of course, screamed, “Objection!”
The judge calmly shrugged his shoulders and ruled: “He can answer if he knows.”
Did he know? I don’t remember. I was laughing too hard to hear any response.
The court’s deadpan was not just hilarious. In its way, it was trenchant.
The judge was not insouciant. He was a realist. The witness had done what covert informants do: He pretended to be someone he wasn’t, he wheedled his way into the trust — in some instances, into the affections — of people suspected of wrongdoing. And then he betrayed them. But that’s the job: to pry away secrets — get the bad actors to admit what they did, how they did it, and with whom they did it, until the agents and prosecutors decide there is enough evidence to convict the lot of them.
The judge understood that. For all the melodrama, whether the informant was a hero or a villain hinged on how one felt not about him but about the worthiness of the investigation.
And just as the mob lawyer served his case, the government lawyers served theirs, portraying the informant as noble — or at least as noble as you can be when your job is to deceive people into confessing things they shouldn’t.
Alas, whether we’re talking about criminal investigations or intelligence operations, the search for truth is a study in contrasting hyperbole and euphemism.
In the courtroom, the prosecutors are referred to as “the government,” but they swell with pride — I know I did — at any opportunity to tell you they actually represent “the People of the United States of America.” The defense can have its vaunted presumption of innocence; the unstated presumption in a criminal trial is that the prosecutor is the guy in the white hat. He’s the earnest public servant, just trying to show what really happened — he’s not there to sow doubt, to trick you like those sharks over at the defense table. And if, by reputation and manner, he manages to convince the judge and the jury of his probity and competence, the prosecutor gets to set the narrative.
The ability to set the narrative is the biggest advantage in any public controversy. And prosecutors are not alone in exploiting it. It is the métier of government officials. As progressivism has magnified the administrative state, the self-image of federal bureaucrats has become technocratic altruism: Let us explain what’s going on; after all, we’re just selflessly looking out for you, calling agenda-free balls and strikes. Think of Barack Obama, dyed-in-the-wool leftist, insisting he’s just a pragmatic, non-ideological problem-solver.
Is this bureaucracy “the deep state”? That’s an exaggeration — try, say, China or Turkey if you want to see what a real deep state looks like. Nevertheless, our modern form of government does make technocrats a force to be reckoned with, and they abide supervision and oversight only by other progressives. When a constitutionalist has the temerity to observe that technocrats are subordinate to executive political leadership and must answer to the legislature that created and funds their agencies, they brood about their “independence.” In their minds, they are an unaccountable fourth branch of government — at least until their fellow non-ideological pragmatists return to power.
For this species of arrogance, setting the narrative is a jealously guarded prerogative. We are to understand the bureaucracy’s work as unimpeachably noble and that so, therefore, are its tactics. Consequently, the government’s “cooperator” is never to be called a spy. He’s a “confidential informant” or, as the FBI’s former Director James Comey put it in a tweet this week, a “confidential human source.”
These are not neutral terms. The implication is that these operatives are always benign, even vital. A “source” is that most treasured of intelligence assets, to be protected at all costs — even the need for accountability when power is abused must give way to the confidentiality of intelligence “methods and sources.” “Source” connotes a well-placed asset who has bored into the inner sanctum of jihadists or gangsters — an “informant” whose information saves lives.
But there is another side of the story.
By and large, “confidential informants” do not emerge from the womb with a passion to protect the United States. Quite often, they become informants because they’ve gotten themselves jammed up with the police. Some are sociopaths: shrewd enough to know that the only way out of either a long prison term or a short life expectancy is to become the government’s eyes and ears; self-aware enough to know that, in undercover work, bad character, mendacity, and survival instincts are tools of the trade. Not many Mother Teresas can infiltrate hostile foreign powers, drug cartels, and organized-crime networks.
According to the government, these effective but unsavory operatives are “confidential human sources,” too. To the rest of us, spy may be too nice a word for them. The printable labels are more like “snitch,” “rat,” “Judas,” etc. “Isn’t it a fact that you’re a scumbag?” Yeah, it’s a fact — and yeah, he probably knows.
I realize this is oversimplification. “Spy” is not always a pejorative — Ian Fleming’s James Bond is a British icon, and who was more lovable than Maxwell Smart? (Here you go, kids.) In all seriousness, many spies are real heroes. The CIA’s operations directorate performs the most commendable feats of valor — the kind that can never be celebrated, or even spoken of; the kind that are memorialized at Langley only by stars carved into a cold marble wall — now, 125 of them. Where would we be without FBI and DEA agents who bravely accept undercover assignments, at great strain on their families and their well-being, to take down society’s worst predators? And many informants, though they may not risk their lives the same way, patriotically serve their country by volunteering critical intelligence they come upon through their professions and their travels.
Still, in this week’s controversy over name games, we should understand: Whether we come to see an informant as an indispensable “confidential human source” or as a treacherous “spy” has little to do with his subjective virtue or malevolence.
In the end, it is not about who the spies are. It is about why they were spying.
In the Trump–Russia affair, officials of the Obama-era intelligence agencies suggest that there are grounds to believe that the Trump campaign was in a traitorous conspiracy with the Kremlin. What grounds? They’d rather not say. You’ll just have to trust them as well-meaning, non-partisan pros who (all together now) can’t be expected to divulge methods and sources.
Countering that are not only Trump fans but growing ranks of security-state skeptics. The Obama administration blatantly politicized the government’s intelligence and law-enforcement apparatus. Their Chicken Little shrieks that public disclosure of FISA warrants and texts between FBI agents would imperil security have proven overblown at best (and, in some instances, to be cynical attempts to hide embarrassing facts). “Trust us” is not cutting it anymore.
In the end, it is not about who the spies are. It is about why they were spying. In our democratic republic, there is an important norm against an incumbent administration’s use of government’s enormous intelligence-gathering capabilities to — if we may borrow a phrase — interfere in an election. To justify disregarding that norm would require strong evidence of egregious wrongdoing. Enough bobbing and weaving, and enough dueling tweets. Let’s see the evidence.