Although plausible deniability is defined by the dictionary, it’s not technically a legal term or defined in any legal documents – which makes it a much looser concept than it sounds on face value when applied to law. On top of that, plausible doesn’t mean trustworthy, possible, or even likely.
Plausible means you could conclude that something might or might not be possible, but usually theoretically, superficially, or suspiciously. It doesn’t necessarily have to be a “reasonable” conclusion, either. In its broadest sense, the term applies to a lack of proof.
Essentially anything illegal or unethical that can be explained away under an innocent and probable guise – true or otherwise – falls under plausible deniability.
However, in the ‘60s, the CIA took the term and expanded on what plausible deniability means to them, and this version is the one that became popularized. To the CIA, it’s the act of withholding information from senior officials to protect their higher-ups in the event the information becomes public. Whether the information was actually withheld or not matters little in court if there’s no proof to the contrary.
Why Is Plausible Deniability Important?
While it might seem like a minor tweak, the CIA’s definition puts blame on subordinates to alleviate the pressure on more senior officials. In most cases, people expect superiors to be held accountable for the actions of the subordinates, but if they have plausible deniability, the senior officials can’t be held accountable. This is true even if the actions that were taken by the subordinates clearly only benefit the superior who “wasn’t” in-the-know.
It also applies if an implication was made to a subordinate that seemed to spur on the illegal or unethical actions. That is, providing the superior can write it off as a misunderstanding on the part of the subordinate who acted it out.
In cases where someone genuinely didn’t know something was happening, they can’t reasonably be expected the be accountable for the other person’s actions. Regardless of management practices and chains of command, if someone really doesn’t want you to know something, they’re really just not going to tell you. Famously, Ollie North (Lt. Col. Oliver L. North from the Iran-Contra scandal) called this situation “absolute deniability” in his trial when referencing Reagan’s level of deniability. His argument was if you’re genuinely not aware of or did not do something, that’s not plausibility – it’s just not a thing.
This seemingly convenient loophole is beneficial for upholding the burden of proof as well as reducing convictions that can’t be proven beyond a reasonable doubt. However, that’s not typically how we think of plausible deniability and that’s certainly not how we’ve seen it pan out in the political or corporate arena.
Real-World Plausible Deniability Scandals
You don’t have to look long to find a scandal with a defense of “plausible deniability.” Most notoriously, we have President Reagan and the Iran-Contra scandal, Jeff Skilling from Enron, and Volkswagen’s still-evolving emissions scandal – among hundreds of others. And we’ll cover some of those in a minute, but it’s important to remember that this isn’t just in the C-Suite and politics.
Real-world plausible deniability can (and does!) encompass things like thinly veiled threats, false advertisements, sexual harassment, stalking, discrimination against legally protected characteristics like race, age, gender, and sexual orientation, as well as a slew of other instances.
Flowers v. Mississippi
Petitioner Curtis Flowers claimed that state prosecutor Doug Evans had a history of racial bias that made Curtis’ previous six separate convictions – all prosecuted by Doug Evans – unfair. In two of trials, appeals court found that Evans had intentionally and unconstitutionally excluded 41 of 42 potential jurors based on their race (also known as Batson violations.)
Evans fought the Batson violation charges by pointing out that he had a reason to strike all 41 of the 42 potential jurors. Although it was acknowledged by all parties that each black juror was subjected to more intense questioning by Evans than the white jurors, some supreme court judges indicated they still saw merit in those jurors being removed.
Mrs. Johnson, Flowers’ attorney, argued that “The problem isn’t whether the reason [for striking a juror] is a legitimate reason, but whether the reason was pretext.” Ultimately, Flowers’ Batson violations case ruled 7 – 2 that “The trial court committed clear error in concluding that the State’s peremptory strike of a particular black prospective juror was not motivated in substantial part by discriminatory intent.”
Whren v. United States
Whren and Brown were driving in a ‘high drug area’ when police officers noticed they were sitting at a stop sign for an unusual amount of time. They then “abruptly turned without a directional onto the road and sped away.” When police officers stopped Whren and Brown, they found Whren holding plastic bags of crack cocaine.
Before trial, they moved to suppress the evidence and stated the officers used the traffic violation as a pretext for stopping the truck because they lacked either reasonable suspicion or probable cause to stop them. Additionally, they claimed it was a violation of the fourth amendment by conducting an illegal search and seizure.
In a unanimous ruling, the court held that as long as a police officer could cite a violation as a reason for stopping a vehicle on the road, then whatever other reasons he may have had for stopping the vehicle are irrelevant. Though this seems reasonable enough, traffic violations are not only broad and subjective in most cases – particularly when it comes to reasonable suspicion – but numerous and easy to find if you follow someone long enough.
This ruling invited race, age, and gender discrimination and harassment under the guise of a “routine stop.” But as long as a reason can be cited for the stop, that reason can be used as probable deniability for racism, sexism, agism, sexual harassment, or any other illegal reason to be pulled over.
President Reagan & Iran-Contra
On November 4, 1979, 66 Americans were taken hostage in the Islamic Republic Of Iran. When the 1980 election rolled around, incumbent Jimmy Carter was being opposed by Ronald Reagan, and the American hostage situation was one of the leading national issues. As the story goes, Carter was mounting a last-second rescue mission to swing the polls in his (already favorable) favor.
Reagan was concerned Carter was going to pull this off, so he made a deal with Iran to hold onto the hostages until after Reagan had taken office. Statements from former intelligence officer Abulhassan Banisadr and US National Security Council member Gary Sick indicate that Iran was promised weapons and monetary assets that had previously been blocked in US banks for holding onto the hostages.
Reagan, of course, did win the 1980 election, and 20 minutes after his inauguration speech ended, the Islamic Republic Of Iran announced the release of the American hostages. This sent up massive red flags, and the American public and hostages demanded investigations. The investigations ultimately came back with no definitive proof that the weapons were sold to Iran to delay the release of the hostages, giving rise to Reagan’s first “plausible deniability” scandal, but also the term “October surprise.”
Of course, the Iran-Contra scandal doesn’t end that quickly. The money from weapons that were sold to Iran (totaling more than $30 million) was given – at least in part – to the Contras. The Contras were a group of guerillas that were attempting to overthrow the Nicaraguan government. Reagan openly supported their cause, and even likened them to America’s founding fathers.
However, selling arms to Iran and assisting the Contras were both illegal – regardless of whether the “October surprise” allegations are true or not. Regan made liberal use of the phrase, “I don’t recall,” and Ollie North stepped in to say that Reagan knew nothing about the money going to the Contras because he hid it from Reagan.
Which gives us plausible deniability scandal number two, but it also popularized the CIA’s version of the term. But Reagan, in total, had eight major scandals in his presidential career that resulted in indictments, convictions, and investigations of over 138 officials – making him the most scandalous president to date.
Jeff Skilling & Enron
At this point, it’d be easy to be disheartened by the thought that plausible deniability always wins, so I’d like to introduce you to Enron and the concept of implausible deniability. Implausible deniability can be best explained by attempting to use the excuse of plausible deniability and failing to convince anyone that it’s true. IE: your deniability is implausible.
The Enron scandal is too complex for a small part of a blog post, and Jeff Skillings wasn’t the only one who was formally charged, but he’s probably the most well-known player in the scandal.
In short: Enron was inflating their revenue by projecting the revenue they hoped to gain from a venture and counting the projected revenue as earned, even if they never earned a dime from the venture. They were also hiding their debt in businesses they created specifically for hiding their debt. It was still their debt, and they still needed to pay it with the money they weren’t actually making, but none of that was in the books.
Over the course of a few years, these cooked books fooled investors over the long-term, leading to purchases of more stock, which rapidly lead to the inflation of their stock price from $20 per stock to well over $80. Skillings sold almost all of his stock before it fell and netted himself $15.6 million, then promptly left Enron for “personal reasons.”
When this Enron bubble inevitably burst, their stocks fell from over $80 to under $.20 and thousands of people lost their retirement funds, jobs, and billions of dollars in worthless stock. At this point Jeff Skillings, CEO and former COO of Enron, took to the stands well-armed with a heavy dose of plausible deniability.
Almost all his statements included some air of, “I wasn’t aware,” “I don’t recall,” “I wasn’t there,” or “I did not believe” when giving his testimony. Of course, no one believed him, and he was sentenced to 12 years in prison. Several other companies, CEO, CFOs, and COOs went down with them.
What Laws Are In Place To Protect Against This?
There are no laws in place to specifically safeguard against plausible deniability when it doesn’t pertain to the government’s involvement in other countries. This means that incidents like Flowers V. Mississipi, Whren v. US, and Enron aren’t touched by the following laws. But that’s not to say there aren’t safeguards that were in place to prevent these things from happening.
In the case of Enron, there are quite a few business and SEC laws and in the case of civil issues, there’s obviously the constitution. But there are are no laws about how the chain of command and passing of information should flow – with the exception of the government’s involvement in other countries.
In order to understand what laws are in place to combat plausible deniability as far as the CIA is concerned, we have to look at the foundational laws in place that they build off of. In this case, the Foreign Assistance Act.
Foreign Assistance Act (1961)
The Foreign Assistance Act’s goal was to unify existing aid efforts from organizations like the International Cooperation Administration, Development Loan Fund, The Export-Import Bank, and the the Food for Peace program, under the United States Agency for International Development (USAID.) It also distinguished the difference between non-military and military aid of other countries, with the former usually falling under the management of USAID.
The act states that no aid shall be offered to any communist country (though this can be overturned in some instances by the president,) or to any country that “engages in a consistent pattern of gross violations of internationally recognized human rights, including torture or cruel, inhuman, or degrading treatment or punishment, prolonged detention without charges, causing the disappearance of persons by the abduction and clandestine detention of those persons, or other flagrant denial of the right to life, liberty, and the security of person, unless such assistance will directly benefit the needy people in such country.”
Though, due to the violent nature of the Contra’s efforts, this is one of the laws that the Iran-Contra scandal directly conflicted with in the ‘80s.
Hughes-Ryan Act (1974)
This amendment to the Foreign Assistance Act was intended to limit major covert operations of the military, CIA, and security agencies without the president’s (and other parties’) full knowledge. Essentially it’s supposed to work like this:
The CIA and Defense Department agencies were prohibited from using appropriated funds to conduct covert operations until the president issued and submitted an official finding that each operation was essential for national security. From there, the finding would go to six congressional committees, which later became eight congressional committees including the House and Senate “select committees” on intelligence that were later established specifically for this purpose. The act also stated that the CIA (or other agency) had to inform congress in a timely manner of their entire intended plan.
This would remove the “plausible deniability” of the president and expand the circle of culpable parties into several congressional branches. This failed rather quickly because the ability for congress to veto and leak covert operations was now a large part of the covert ops approval process. As such, the CIA and other covert agencies never gave the full picture to committees. As a result, the committees stopped further questioning the CIA and other agencies that conduct covert ops because they weren’t getting the full story regardless of questioning.
Again, this was violated with Iran-Contra in the ‘80s.
Intelligence Oversight Act (1980)
The Intelligence Oversight Act is an amendment to the Hughes-Ryan Act and intended to fill in the gaps the previous revision failed to fill. This act removed six of the eight committees from Hughes-Ryan and now only required two committees be privy to covert ops – the House and Senate “select committees” on intelligence (HPSCI and SSCI, respectively.)
This act also revised what the new rules going forward were, including keeping both committees “fully and currently informed” of activities including “any significant anticipated intelligence activity.” However, a smaller-mentioned portion of this amendment also includes the article provision, “[n]othing in this subchapter shall be construed as requiring the approval of the congressional intelligence committees as a condition precedent to the initiation of any significant anticipated intelligence activity.”
This removes the pitfalls of the previous amendment where covert operations could be vetoed or leaked, while retaining the original intention to expand the net of culpability and remove any reasonable excuse of probable deniability.