An Open Letter to “Dirty Hands” Theorists from a Public Manager (or, The Pitfalls of Divorcing Theory from Practice) Jonathan anderson

Public Integrity, Summer 2014, vol. 16, no. 3, pp. 305–315. © 2014 ASPA. Permissions: www.copyright.com

ISSN 1099–9922 (print)/ISSN 1558–0989 (online) DOI: 10.2753/PIN1099-9922160305

Commentary

An Open Letter to “Dirty Hands” Theorists from a Public Manager (or, The Pitfalls of Divorcing Theory from Practice) Jonathan anderson

abstract

This open letter responds to what is commonly known as “dirty hands” literature. The writings so designated focus on the abstract question of whether ends justify means in public policy, but neglect to address the practical ramifications of policy implementation. A review of the background of the dirty hands question is followed by a critique of theory that ignores the moral agency of the public officials called upon to perform such acts.

Keywords: dirty hands, ethics, implementation, moral agency, practitioner, theory vs. practice

Under the guise of national security threats, and through the rhetoric of terrorism, the process of democratic law and the idea of constitutional limits are under attack. Advocates of unilateral executive action argue that in extreme situations constitu- tional limitations may be ignored to achieve a perceived greater public good. Torture, imprisonment without trial, and invasion of privacy without probable cause have all been justified to protect the national interest. However, the attack on democracy is more insidious. Proponents of “dirty hands” theory justify secret, extralegal action in extreme, emergency narratives, and then use that precedent to justify illegal or unconstitutional actions for nonemergency policy deemed, by the actor, to be in the public interest (e.g., Newbold 2005).

Dirty hands is a concept which claims that people, particularly political leaders, sometimes have to break the law—and thus dirty their hands—in the public inter-

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est.1 It is the age-old debate over whether ends justify means. Should the leader do “whatever it takes” for the good of the state, even if it is illegal or immoral? The problem with most dirty hands theory is that it tends to limit discussion to the role of top leaders. Those who do all the theorizing forget about me, the public manager who has to implement their policies.

Dirty hands literature portrays scenarios where policymakers are allowed, or even expected, to undertake unethical or illegal ac- tions to achieve the public interest. Theorists most often focus on grand presidential actions in times of national crisis. Rossiter’s (1948) concept of constitutional dictatorship in the manner of Cincinnatus of Rome, or Lincoln’s suspending of habeas corpus during the Civil War (Lincoln 1861) exemplifies this ratio- nale. But while much of the literature begins with examples of presidents and national

crises, the discussions often include a broader range of political actors. In this open letter, I first lay out some background of the term “dirty hands” from

Jean-Paul Sartre and Michael Walzer, followed by a brief historical overview through Machiavelli, Locke, and the U.S. Constitution. I then outline the real problem of dirty hands theory, namely that it pays scant attention to the moral agency of the public managers who perforce must carry out dubious actions decided upon by leaders.

background

The starting point for much of the contemporary discourse is Michael Walzer’s (1973) “Political Action: The Problem of Dirty Hands.” He begins with the play Les Mains Sales (“Dirty Hands”) by the French playwright Jean-Paul Sartre (1949). The story concerns the decision by an underground resistance group in an occupied Central European country during World War II to assassinate one of its own leaders for what is perceived will be the greater good once the country is liberated. In a moment of self-doubt, the appointed assassin questions the morality of the group’s decision. Its leader sneers at him:

How you cling to your purity, young man. How afraid you are to soil your hands. All right, stay pure! What good will it do? Why did you join us? Purity is an idea for a yogi or a monk! You intellectuals and bourgeois anarchists use it as a pretext for doing nothing. To do nothing, to remain motionless, arms at your sides, wearing kid gloves. Well, I have dirty hands. Right up to the elbows. I’ve plunged them in filth and blood. But what do you hope? Do you think you can govern innocently? (Sartre 1949, pp. 223–224)

Walzer frames the proposed moral dilemma like this: “Sometimes it is . . . right to get one’s hands dirty. . . . And how can it be wrong to do what is right? Or, how can we get our hands dirty by doing what we ought to do?” (1973, p. 164).

One of Walzer’s most famous examples involves a situation that anticipated contemporary policy debates (Lauritzen 2010), whether to use torture to discover the location of a bomb. This story depicts an elected official who has to decide whether to

“Dirty hands is a concept which claims that people, particularly political leaders, sometimes have to break the law—and thus dirty their hands—in the public interest.”

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authorize the torture of a captured rebel leader who knows, or probably knows, the location of a number of bombs hidden in apartment buildings around the city, set to go off in the next twenty-four hours. He orders the man tortured, convinced that he must do so for the sake of the people who might otherwise die in the explosions—even though he believes that torture is wrong, indeed abominable, not just sometimes, but always. (Walzer, 1973, p. 167)

The question “Should I do a bad thing to accomplish a good thing?” is the founda- tion of the dirty hands literature. But philosophizing on this issue always seems to revolve around a decision of the top leader. Walzer and others dwell on the right or wrong of the leader’s soul, as if he or she is a god-like person set apart from everyone else. What is missing from most analyses is recognition that:

almost every decision by a leader demands action by subordinate managers;• the subordinate managers, as individuals, have their own moral agency;• they have taken an oath to defend the constitution, not to obey the political • leader; and to be legitimate, state decisions—especially difficult ones—must be made • through a democratic process, not unilaterally.

the evolution of authority and legitimacy

In most early empires and kingdoms (pre–Magna Carta), a discussion about dirty hands would not have made much sense. Rulers did what they wanted to, and that was that. Few talked about whether it was proper. Roman and Persian emperors dei- fied themselves, and Chinese emperors had the “Mandate of Heaven.” In medieval Europe, kings claimed a divine right to rule to counter the power of the Roman Catholic Church. Rulers were gods or selected by gods, and their word was law. Government officials did what they were told or suffered the consequences.

Many yearned for an absolute leader, a benevolent dictator who would provide answers to questions and solve problems. Plato’s Republic described an ideal situ- ation in which philosopher-kings were trained from birth to lead the people. The ancient Romans provided for the appointment of temporary dictators. Hobbes as- serted that when people emerged from a “state of nature” they desired an absolute ruler to protect them. Many of our stories promote this desire for a leader with the answers. The legendary hero resisting authority has always been popular, at least in the Western world. Aristotle in his Poetics outlined the idea of the tragic hero, and Socrates drank hemlock rather than sacrifice his principles. Robin Hood is portrayed as fighting King John’s absolutism, and William Tell as resisting the Hapsburgs.

Contemporary popular culture, too, is rife with characters like Clint East- wood’s Dirty Harry, who are portrayed as “doing the right thing” while everyone else complains that they are breaking the rules. That “right thing,” of course, is what the hero (and the audience) “know” to be the right thing. And there’s the rub—who knows what the “right” thing to do is? In heroic stories, as in the dirty hands scenarios, the noble right action is evident to all, but the real world is seldom that clear.

Contemporary management literature focuses on leaders making “tough deci- sions” or decisions that “are not popular.” It seems to long for a White Knight who will save the day (Goatly 2006). Leaders are imagined as making heroic decisions

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for the good of all, but no one seems to consider that the subordinates who must carry out the dirty work may have their own ideas of right and wrong.

At some point in this discussion, theorists almost always bring in the godfather of dirty hands, Niccolò Machiavelli, who wrote his famous little book The Prince in the sixteenth century (see Constitution Society 2012c). Machiavelli was a career diplomat giving advice to a local ruler in Italy on how to maintain power. His treatise has become the archetype (I really cannot say “Bible”) of amoral, rational, political calculation on the use of political power. In chapter 15, Machiavelli writes, “It is necessary for a prince wishing to hold his own to know how to do wrong, and to make use of it or not according to necessity.” People trot out Machiavelli all the time, either in disgust or admiration.

But the amazing thing is not that Machiavelli talks about doing bad to accomplish good. Rather it is his seeming acknowledge- ment that a ruler’s actions may have to be justified. The absolute right of the ruler is no longer automatic. The Enlightenment (and resistance to church authority) changed the discourse from divine right to some other calculus.

Fast-forward a few centuries to the age of the state and the rule of law. Kings are no longer, like Louis XIV, saying “L’état, c’est moi.” Instead of just doing what they think is best, rulers are supposed to act within the

law and pursue what is best for the nation, or in other words, the public interest. The state and not the king is now in charge, and government actions are expected to be for the good of the people rather than the whim of royalty.

Enter the democratic revolution—and it was not just a political revolt. It was a dramatic change about who makes decisions on what is in the public interest. Begin- ning with the United States and France, the idea of who should govern shifted from religious or secular absolutism to republicanism or democracy—rule by the people. Who should rule is about who decides what is the right thing to do, or as Rohr put it, “he who defines the public interest surely governs” (1991, p. 12). Political leaders are not making decisions because they have unique access to the truth, but because they have been elected by citizens. Legitimacy is determined not by knowledge or expertise (as in the case of Plato’s philosopher-king), and not by nobility of purpose (as in mythic stories), but by democratic representation.

While the state was to rule for the good of all, some still believed that leaders should determine the public interest regardless of law. No longer an assertion of divine right, this conveyed an implication of class right. Educated elites still ruled, even in democratic America. And while the laws were made democratically, there were some who said that leaders sometimes had to make decisions contrary to democratically constructed law.

John Locke, sometimes seen as having inspired the U.S. Constitution, says in his Second Treatise on Government (Constitution Society 2012d) that “public good and advantage shall require . . . that the laws themselves should in some cases give way to the executive power” (sec. 159). He explains that the leader has the “power to act according to discretion, for the public good, without the prescription of the

“Typically all the leader does is give an order. The order comes down to me, the public manager, and if it requires something illegal, immoral, or unconstitutional, and my political leader has ordered it, what am I to do? Theorists never address this.”

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law, and sometimes even against it” (sec. 160). In Federalist 70, Hamilton argued that the U.S. president should be an “energetic” executive who can act unilaterally for the public good, without checks and balances (Constitution Society 2012a; for more on Locke and presidential prerogative, see Kleinerman 2007; Langston and Lind 1991; Mattie 2005; Scigliano 1989).

But what is the public good? And how does the leader know it? Some say there should be a process for eliciting the will of the citizens. Others say there is such a process, and it is called elections: The elected leaders have been put in charge and should do what they think best. The trouble is, that is not what the Constitution says. The United States was founded on distrust of government. James Madison argued in Federalist 51, his famous “If all men were angels . . .” tract, that the Constitution provides checks and balances to human failings; it structures a government where power is limited (see Constitution Society 2012b).

But dirty hands theorists want to undo that. They say that sometimes the leader should break the law for what he or she thinks is in the public interest, regardless of popular, democratic will. They tell stories about lead- ers who, not unlike Dirty Harry, nobly violate the law for what is implied to be the good of all. Such narratives, like any good tale, create a bond with the rest of us, identifying bad guys and good guys, and rhapsodizing on how the hero defeats the bad guys. Sometime the hero has to do bad things to achieve what the story clearly identifies as the good of all.

the role of the public manager

I have gone through this simplistic scan of history and background literature to get to the main point of this letter, and that is how the manager fits into the process of dirty hands decisions. Here is the problem: When you fashion all these examples of terrible things happening if the leader does not break the law, you portray an imaginary and oversimplified world. You show the hero doing all the courageous work, but that is not the way the world works. The examples all imagine that the dirty actions are something done by the leader personally. You create a moral dilemma and imagine it only involves one person—the leader! That may be okay when you are telling a story, but in dealing with a real-life situation, practical realities need to be included.

In fact, typically all the leader does is give an order. The order comes down to me, the public manager, and if it requires something illegal, immoral, or unconsti- tutional, and my political leader has ordered it, what am I to do? Theorists never address this. They have the leader dithering about whether this or that act is in the civic interest and therefore justified. But they never go beyond the leader’s moral struggle! When my boss tells me that the law needs to be broken in the public in- terest, I have a problem. And it is not just a personal disagreement; it goes against every piece of ethics training I have ever had.

The literature of public administration ethics is wide and deep (a small sample might include Bowman and Elliston 1988; Cooper 1990, 2001; Frederickson 1993; Menzel

“Dirty hands theorists keep generating articles about how political leaders must do something bad for the good of all but never deal with the burden on me, the public manager.”

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2007; Rohr 1989). The one thing in common throughout the literature is that no one talks about whether and how it can be ethical to obey an illegal order. The theorists all struggle with how a lawful order or institutional procedure might be contrary to personal conviction. They all struggle with how to deal with an order one feels is unethical. But none of them advocates the primacy of a personal determination of the public interest. And no ethics training I have ever had suggests that I should put my understanding of the public interest above the law. On the contrary, all give advice on how to resist such pressures, which are portrayed as unethical in themselves.

So it is frustrating that dirty hands theorists keep generating articles about how political leaders must do something bad for the good of all but never deal with the

burden on me, the public manager. Evidently, their view of public managers is like Gareth Morgan’s (1986) metaphor of government as a machine: You throw a switch and things just happen. Don’t the theorists realize that someone like me has to actually do the dirty deed? The leader’s hands may be dirty meta- phorically, but mine will be covered with the real dirt (or blood)! Does theory even recog-

nize me as human, or am I just a depersonalized cog in the bureaucratic machine (Hummel 1977)?

And when there is talk about doing something bad, the theorists rarely get into the specifics of what “bad” is; no, this is almost never brought into the discussion. Leaving out the dirty deed makes the rhetoric easier. The one time it is mentioned— the example of torturing a terrorist to find a bomb—they carefully do not specify what is meant by “torture.” Is it skin flaying? Genital crushing? Maybe raping the terrorist’s family in front of him? Is that what I am supposed to do? Or am I just supposed to do “nice” torture?

Other realities are ignored as well. It is just assumed, for the sake of theory, that if you torture this person, the bomb will actually be found and lives saved. That is certainly what happens in the stories. No discussion of how it is known that there is a bomb in the first place—maybe there isn’t. No discussion about the supposed certainty that this person is a terrorist; maybe it is somebody else. No discussion of whether this particular terrorist knows where the bomb is—or whether you have to go down the line torturing five, 50, or 500 possibly innocent persons before maybe the right terrorist is discovered. And let’s not even get into the discussion of how unreliable torture has been proved to be as a means to get at the truth (Costanzo and Gerrity 2009). Once you talk about real-life examples, you need to be prepared to confront practical realities. But under the guise of abstract, generalizing theory, the real world is conveniently set aside.

The theorists also never seem to get around to specifying who, exactly, can order me to break the law or where the authorization comes from. While the term “po- litical leader” is sometimes used, the discussions rarely articulate who it includes. City council members? Sheriffs? County treasurers? Elected dog catchers? Why not? If permission to decide when the law should be obeyed is granted through an election, are elected officeholders also authorized to violate the law in the public interest? What about my politically appointed boss? And what about me? Where is the line drawn, and why?

“A public manager must uphold the Constitution and obey the law. I took an oath to do just that. Why would I be expected to act differently at the order of some leader?”

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But the thing that really fries me is the assumption that the political leader who makes the decision will go through the pangs of personal, moral angst and feel bad about the decision even while somehow making it, while everyone ignores the fact that the leader will not be the one wielding the torture instruments. The leader will not be cutting body parts off a human being or doing some other horrible thing. It is a manager like me who is assumed to just accept the decision of the leader and follow whatever instructions I am given, and that I will magically be insulated from all blame and accountability. You deny my humanity and moral agency in your philosophizing. What a great example of Hummel’s (1977) essay on how bureaucracy dehumanizes the individual. I am supposed to just check my conscience at the door.

Evidently, you theorists feel that the principal-agent relationship makes illegal action acceptable. I am put in this “damned if you do and damned if you don’t” position. I am obligated to obey my superiors and also to obey the law. Do you think managers who carry out a dirty hands action are somehow absolved from ac- countability for violating the law because of their obedience? You must agree with President Nixon, who said,

If the president, for example, approves something because of the national security, or in this case because of a threat to internal peace and order of significant magnitude, then the president’s decision in that instance is one that enables those who carry it out, to carry it out without violating a law. (Nixon’s Views on Presidential Power 1977/2005)

The reality was that more than 40 White House officials went to jail for actions during the Watergate years and Nixon resigned in disgrace after coming to the edge of impeachment. Although those jailed in the scandal were political appointees, the reality is that administrators are not insulated from guilt. They cannot just say, “We were only following orders.” Wasn’t that resolved at the Nuremberg trials?

The core of my frustration is that all these scenarios about how a leader is chal- lenged to make a tough decision focus on a single person. They seem to deny that a democratic process can make the right decisions. They imply that ethics is a soli- tary conception that an individual must make apart from any connection with other individuals. Of course there are tough decisions to make. And yes, I often struggle with dilemmas where there does not seem to be a right answer—dilemmas that are “wicked problems” (Rittel and Webber 1973). But I cannot and should not make these decisions on my own or in secret. This is not a question of whether there are ever any “ends justify means” decisions to make; it is a question of how such decisions are legitimated in a democracy. Ethics training emphasizes that tough decisions should never be taken alone or in isolation. That is what differentiates a democracy from an autocracy.

dirty hands and the public manager

Every ethics training class covers the issue of what to do if we disagree with a legal order, particularly if the order is not in the public interest. Dwight Waldo’s (1985) competing ethical obligations are sometimes discussed, but we always begin with the parameter that a public manager must uphold the Constitution and obey the law. I took an oath to do just that. Why would I be expected to act differently at the order of some leader?

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While some writers address whistleblowing or other actions that expose orga- nizational lawbreakers, the choice of action for managers is normally confined to Hirschman’s (1970) “Exit, Voice, or Loyalty.” A manager who believes the public interest is not being served is advised to speak up internally and then either fol- low orders or resign. The choice of breaking laws “in the public interest” is rarely considered. In The Ethics of Dissent, O’Leary (2006) takes the discussion a few steps further. But her examples are less about following orders and more about whistleblowing—bringing government actions into the light of the civic space so that they can be examined and critiqued.

There is an incredible irony here: Although the administrator is normally portrayed as an objective, rational actor, and the politician as greedy and self-interested, the dirty hands narrative paradoxically expects the self-interested politician to make decisions in the public interest, while the objective and “professional” civil servant simply follows orders. Nobility and blame are attributed to the leader, while “face- less bureaucrats” like me are assumed to mindlessly obey, with little notion of moral burden or obligation—we are absolved because we were “just following orders.” Eichmann had an excuse (Arendt 1963).

There may be times when extreme actions are required, and in practice government officials have struggled for constitutional justification at such moments. Legal briefs at the highest levels have struggled to justify torture (Guide to the Memos on Torture 2005), assassination (Savage 2011), and surveillance (Gonzales 2006). They have tended to set up alternative institutional processes, such as national security courts (Sulmasy 2009) and consultation with legislative intelligence committees (http:// intelligence.house.gov/legislation). In recognition of the pressures that can be put on managers, we have established inspector general offices (Newcomer and Grob 2004) and passed whistleblower legislation (Kohn 2001). Some states have established civil grand juries to investigate government activities (American Grand Jury Association 2008). The practical world struggles with the real issues, while dirty hands theorists focus on unrealistic and imaginary stories. The real question is not when the ends justify the means (if ever)—but the process by which we arrive at the answer.

And that is the problem with dirty hands theorists. They debate whether ends justify means but ignore the process and implementation of decision-making. They doubt the ability of democracy to deal with crises. They ignore that I took an oath and can be fined or sent to prison or sued in civil claims court if I knowingly break the law (let alone that doing so violates my honor).

Theories that exclude the realities of implementation are like debates over angels dancing on the head of a pin. They may elucidate a theoretical concept, but they overlook reality. I know that difficult decisions must sometimes be made. Govern- ing is hard. But we can meet the moral and ethical challenges without evading the democratic process.

note 1. The dirty hands literature is large and cross-disciplinary. The theorists come

from philosophy, ethics, political science, religious studies, sociology, and public ad- ministration. A small sample of the literature might include Bellamy 2007; Calhoun 2004; Fatovic 2004; Griffin 1989; Newbold 2005; Nielsen 1996; Provis 2005; Rynard and Shugarman 2000; Sutherland 1995; Thompson 1993; Walzer 1973; and de Wijze 1994, 2002.

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Bellamy, Alex J. 2007. “Dirty Hands and Lesser Evils in the War on Terror.” British Journal of Politics & International Relations 9, no. 3:509–526.

Bowman, James S., and Frederick A. Elliston. 1988. Ethics, Government, and Public Policy: A Reference Guide. New York: Greenwood Press.

Calhoun, Laurie L. 2004. “The Problem of ‘Dirty Hands’ and Corrupt Leadership.” Independent Review 8, no. 3:363–385.

Constitution Society. 2012a. Federalist 70, Hamilton. Available at www.constitution. org/fed/federa70.htm, accessed June 22, 2012.

———. 2012b. Federalist 51, Madison. Available at www.constitution.org/fed/fed- era51.htm, accessed June 22, 2012.

———. 2012c. Machiavelli’s The Prince. Available at www.constitution.org/mac/ prince00.htm, accessed July 7, 2012.

———. 2012d. John Locke’s Second Treatise on Government, chap. 14. Available at www.constitution.org/jl/2ndtr14.htm, accessed July 7, 2012.

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———. 2002. “Defining Evil: Insights from the Problem of ‘Dirty Hands’.” Monist 85, no. 2: 210–238.

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about the author Jonathan Anderson is chair of the Public Administration Department at California State University, San Bernardino. He began his career as a public manager in the U.S. Foreign Service; subsequently he directed the M.P.A. program at the University of Alaska and served two terms in the Juneau Borough Assembly.

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