Robert Stack as Eliot Ness with the rest of TV's "The Untouchables." Now THOSE guys were professional. You'd never see THEM text messaging jokes to Al Capone...
The Washington Post ran a story Tuesday describing how the defendants in an elaborate FBI sting operation escaped conviction as a consequence of the revelation of racy text messages between the agents and their undercover informant. Agents and their key informant bantered “about sex, booty calls, prostitutes, cigars, the Village People, the informant’s wives and an agent’s girlfriend.” When the arrests were first announced by the Justice Department, the operation was regarded as a model law enforcement success. But federal prosecutors failed to win a single conviction, in large part because defense lawyers used the text messages to raise juror doubts about the credibility and professionalism of FBI agents. Now the Justice Department says that in light of the first two trials, the government is evaluating “whether to continue to go forward” with the remaining prosecutions of 16 defendants, seven of whom had their cases end in hung juries.
During the most recent trial of six men and women on charges of paying bribes to win business with a foreign government, the defense attorney used the FBI’s texts both to attack the character of the informant and to suggest that the lead agent was an untrustworthy, bigoted, anti-gay misogynist. The FBI believes this was unfair, and an example of a lawyer’s trick defeating justice. Informants, almost without exception, are sleazy characters, and managing them takes skill and guile. The agents felt it was essential to build trust, which meant working to develop a collegial relationship, at least in the informant’s mind. The text banter, they say, was designed to ensure the loyalty of a low-life, which required the agents to sometimes act like low-lifes themselves. Thus they texted messages back and forth that included bawdy jokes, innuendos about sex, anti-gay stereotypes and more, all in a buddy-buddy tone that the jury found troubling. “The texts were one of many things that point to an absolutely amateurish operation,” the jury foreman told the Post.
Professionalism is an elusive and misunderstood concept. It is not an ethical value, but it is composed of ethical values, like dignity, honesty, prudence, civility, competence, diligence, discretion and honor. Professionalism means that an individual embodies the model conduct that a member of a particular profession should be expected to display in interactions with the public and fellow professionals. Professional actors learn their lines. Professional athletes stay in shape. Professional lawyers are prepared and civil. Professional law enforcement officials don’t appear to be like the slime-balls they arrest.
Professionalism is crucial because it bolsters trust. We tend to believe that good characteristics and habits indicate good and reliable values, and that dubious conduct calls into question what values lie behind them. I am sympathetic to the FBI’s dilemma, and can easily believe the argument that the chummy, sleazy text exchanges had a legitimate purpose. But I can’t blame the defense attorney or the jury. Those texts do not convey the impression that the agents are professional, and it is fair that they be used by the defense to call into question the credibility of the operation. Balancing the need to control informants with the requirement that juries find agents trustworthy is a difficult task requiring thought and training, but I’m sure the FBI is equal to the task once they put their minds to it.
After all, they’re professionals.
You can read the Post story here, and a follow-up.
Ethics Alarms 
If you want to know if the agents were just ‘pretending’ to act like this to gain the trust of an informant or if FBI agents actually do act like unprofessional jerks, you can read the following report from the OIG. Please keep in mind that the OIG report has a polite layer of whitewash over the true behavior.
http://www.fas.org/irp/agency/doj/oig/fbilab1/fbil1toc.htm
The text banter, they say, was designed to ensure the loyalty of a low-life, which required the agents to sometimes act like low-lifes themselves.
I’d like to think that this is exactly the way that I’d perceive it, were I on the jury. You say that professional actors learn their lines while professional law enforcement officers take care not to look like the criminals they pursue. But in performing an undercover sting operation, doesn’t a law enforcement officer act simultaneously as such and as an actor? Isn’t embodying a character in behavior and dialogue a part of that role? In other words, isn’t it just possible that these texts, far from contravening professionalism, are actually an example of it?
I can find fault with the jury here, because I’m having a hard time conceptualizing how the personal interactions between the officers and their targets can point to “an absolutely amateurish operation” if the outcome of that operation prior to the revelation of the texts was seen as “a model success.”
In a prior age when personal communication wasn’t generally a matter of public record, would conversations between mobsters and undercover agents in smoky back-rooms have been any different from this? If not, and if convictions would have been secured in that case, why should these communications alter the efficacy of the case?
TG for alt freqs!
I have always felt uneasy about his law. It is fairly new and it puts US business in an awkward position. It is customary for bribes to be paid in many (most) foreign countries. Many civil servants are very poorly paid and are expected to make up for it with bribes. Although it doesn’t make it right, everyday people in many countries view such bribes the way we view tipping waiters. Everyone gets bribed. You regularly bribe your garbageman, your police officers, court officials, the mailman, everyone gets a regular bribe or they don’t provide you with service. Many of the people I went to school with came from other countries and they explained this bizarre situation. We had to explain to them not to do that in the US or you can get arrested (one student almost did when he didn’t understand why he couldn’t just pay the police officer when he was stopped for speeding). Until recently, most US countries paid bribes to do business in such countries (as everyone else does). One of my classmates told me about going to school to learn how to bribe foreign officials. Americans aren’t used to doing such things and we are bad at it. Most Americans trying to bribe a foreign official or businessman will end up enraging them by insulting them. It takes a lot of practice to learn how to do it right. Now it is illegal, but it is also almost impossible to do business outside the US without violating the law.
So now you have a situation where you have an informant testifying about people bribing other people. The witness is either going to be a foreign official who takes bribes for a living or (more likely) someone who bribes foreign officials for a living and is testifying in return for immunity from prosecution. So now you have a prosecution of people that many on the jury would have sympathy for (even if guilty) that hinges on a disreputable person who is being bribed (with immunity) to give their testimony. Add an unsavory picture of the FBI agents behind the prosecution and you can see why you have hung juries.
I feel more than uneasy about that law (FCPA) – I hate it. Every time I think about it, which is more often than I care to admit, visions of gagged-and-bound American businessmen come to mind – standing alongside jubilant and shackle-free foreign competitors while receiving the news that the foreign competition won the big contract – along with the bitter, sarcastic thought: “Good old American moral superiority! It wins EVERY time!” What a waste of law enforcement, and further waste of business opportunities.
No way will the U.S. double exports in 5 years – unless all you’re counting is the export of similar stupid laws (and of course, the UK just recently added its own version of the American economy-damaging tool of ever larger police state capability). The U.S. can just keep it up with the piling-on of laws and regulations on commerce and trade, until the trade deficit is so big there aren’t enough revenues to be had, taxed or borrowed, to pay for all the enforcement. Oh well, that would be a just outcome, I suppose: a nation full of well-fed prison inmates and starving cops.
It’s a mighty flaky law to be sure, but I don’t know what would work better. The rest of the world, or much of it, operates on bribery, Bribery is unethical in an absolute sense. What would you do?
We could punish countries with rampant bribery by placing serious, punitive tariffs on their imports into the US. This would reward our companies for not dealing with corrupt governments. This would probably be against international law, however. We like to pretend we are against corruption, but we also like cheap televisions and clothing.
I had to disengage from this topic after posting yesterday because I recognized that I had reached my all too familiar “grumpy state” near the end of my work day. Otherwise I would have replied sooner. I would repeal the law, and suspend the implementing regulations. I would not allow the expenses of “payments” to be tax deductible, but might incentivize, if not require, reporting of payments. I would seek bilateral agreements that would address reciprocity in business conduct, one trading partner at a time (and possibly, one economic sector or industry at a time). Such agreements might still fail to head-off win-lose outcomes and unlevel playing fields. But then again, maybe some of them would succeed in smoothing the payments pathways, with a result of the U.S. businesses benefitting from more (U.S.-style) fairness.