Plausible Deniability

The term “plausible deniability” refers to the ability of an individual to deny knowing about something nefarious because there is no proof to the contrary. For example, plausible deniability can protect people who were either personally involved or willfully disregarded something illegal or unethical if there is no evidence showing they knew about it.

High-ranking individuals may claim plausible deniability because they know those who are subservient to them will not challenge their claims. To explore this concept, consider the following plausible deniability definition.

Definition of Plausible Deniability

Noun

1. The ability to deny knowing about something illegal or unethical because there is no evidence to the contrary.

Origin

Early 1960s

Plausible Deniability and the CIA

Plausible deniability is a concept that pops up at various points throughout history. However, it was the CIA who named the concept as we know it today. The CIA used the term to describe the act of withholding information about illegal or immoral activity from senior officials so as to protect them in case that information becomes public. Otherwise, people expect those in executive positions to take responsibility for the actions of their subordinates. In fact, in Japan, executives have gone as far as committing suicide when a subordinate dishonored their company.

Hughes-Ryan Act (1974)

In December of 1974, the government passed the Hughes-Ryan Act, which was an amendment to the Foreign Assistance Act of 1969. The Hughes-Ryan Act prohibits the CIA from using funds for covert, or secret, actions unless the President certifies the operation as essential to the nation’s security. The Act also dictates that the CIA provides Congress with a timely explanation of the operation they are trying to run.

The government passed the Hughes-Ryan Act in response to disgust shown by both Congress and the public in the way the CIA handled the Vietnam War. The government also hoped that, by passing the Act, the U.S. could avoid entangling itself in another war by mistake as the result of bungled covert operations.

However, in the decades that followed, the Act ultimately proved to be a failure. The CIA learned how to get around the Act by failing to provide Congress with the full picture about the covert actions they planned. As a result, members of the intelligence committee became hesitant to ask for further information from the CIA, since they knew they weren’t going to get the full story anyway.

Intelligence Oversight Act (1980)

The Intelligence Oversight Act of 1980 is an amendment to the Hughes-Ryan Act of 1974. The Intelligence Oversight Act is a federal law that requires governmental agencies within the U.S. to report their covert activities to only two of the original eight committees mentioned in the Hughes-Ryan Act.

The Intelligence Oversight Act worked to remove the other six formerly required agencies entirely. The Act also set detailed ground rules for governmental agencies like the CIA fully informing those required agencies of their activities, including any activities they anticipated in the near or distant future.

Overconfidence and Plausible Deniability

Confidence is a good skill to have, especially if an individual is a leader. However, it can also be a person’s downfall if he’s not careful. Interestingly, when it comes to confidence, people prefer it be a quiet personality trait, rather than someone strutting about, puffing out his chest, and telling you how confident he is.

In fact, in a study conducted by the University of Notre Dame, the researchers found that their subjects could not trust people who overly expressed their confidence. What the findings of this study illustrated was that people like politicians and business executives are more successful at conveying plausible deniability because their confidence is quiet, and quiet confidence is more trustworthy than peacocking.

A good example of plausible deniability and overconfidence lies in the way President Donald Trump has often used plausible deniability to his advantage. He regularly made overconfident claims about the future, such as being able to single-handedly bring coal jobs back to the forefront in the U.S. Yet, when experts debunked these claims, he simply undermined them as “fake news,” thereby bolstering his plausible deniability.

Plausible Deniability Example Involving a Discrimination Case

An example of plausible deniability that reached the U.S. Supreme Court occurred in the matter Ashcroft v. Iqbal, which the Court heard in 2009. In this case, police arrested Javaid Iqbal, a Pakistani-American from Hicksville, New York, in November of 2001 on charges of conspiracy to defraud the U.S. and identity theft.

Lawsuit

Following his arrest and subsequent release, Iqbal filed a lawsuit against, among others, former Attorney General John Ashcroft and former FBI Director Robert Mueller. In the lawsuit, Iqbal alleged that, like hundreds of Arab Muslim men recently before him, the FBI only arrested him for discriminatory reasons in the wake of the attacks on September 11, 2001.

He also made claims of torture and abuse while imprisoned at the Metropolitan Detention Center in Brooklyn, New York. This included accusations that the officers dragged him across the floor, punched him in the stomach, and subjected him to air conditioning in his cell during the winter.

All told, Iqbal alleged that the FBI, the Department of Justice, and the Bureau of Prisons, violated 21 of his statutory and constitutional rights. The defendants argued that they should enjoy qualified immunity by way of their roles as governmental officials. They asked the U.S. District Court for the Eastern District of New York to dismiss the case. The Court denied the defendants’ request for dismissal and rejected their immunity defense outright.

Appeal

The defendants appealed their case to the U.S. Court of Appeals for the Second Circuit. The Court affirmed the lower court’s ruling with one exception: the right to due process.

The Court noted that because the government’s actions occurred during the aftermath of September 11th, this case was unique and required a special review. However, the Court believed that, despite the unique situation presented here, the immunity defense only protected the government insofar as the due process claim was concerned. Iqbal’s “serious allegations” of the mistreatment he had suffered were enough for the Court to uphold the lower court on the remainder of the counts.

U.S. Supreme Court

The case then made its way all the way up to the U.S. Supreme Court, who then had two questions to answer:

1. Are governmental officials protected by immunity by default, even in the face of allegations of “gross mistreatment” and repeated violations of a prisoner’s constitutional rights?
2. Is an allegation that a high-ranking government official knew of or permitted his subordinates to commit these alleged violations enough to fulfill a claim of unlawful discrimination?

Ultimately, the Court did not answer the first question, and issued a solid “no” on the second. The Court held that Iqbal had failed to provide enough factual evidence for his claim of unlawful discrimination. This made his complaint procedurally deficient, and so the Court remanded the case to the district court for the potential amending of Iqbal’s complaint.

However, the dissenting opinion, authored by Justices David H. Souter, John Paul Stevens, Ruth Bader Ginsburg, and Stephen G. Breyer, disagreed. The Justices believed that, since the defendants admitted they would be liable for their actions if they were aware of their subordinates acting in such a way as to be deliberately discriminatory, they relied on plausible deniability. As such, the dissenting Justices believed that Iqbal did, in fact, provide enough facts to back up his claim of unlawful discrimination.

In Their Own Words

As part of the Decision issued by the Court, the dissenting Justices wrote:

“I do not understand the majority to disagree with this understanding of “plausibility” under Twombly. Rather, the majority discards the allegations discussed above with regard to Ashcroft and Mueller as conclusory, and is left considering only two statements in the complaint: that “the [FBI], under the direction of Defendant MUELLER, arrested and detained thousands of Arab Muslim men … as part of its investigation of the events of September 11,” and that ‘[t]he policy of holding post-September-11th detainees in highly restrictive conditions of confinement until they were ‘cleared’ by the FBI was approved by Defendants ASHCROFT and MUELLER in discussions in the weeks after September 11, 2001’.

I think the majority is right in saying that these allegations suggest only that Ashcroft and Mueller ‘sought to keep suspected terrorists in the most secure conditions available until the suspects could be cleared of terrorist activity,’ and that this produced ‘a disparate, incidental impact on Arab Muslims.’ And I agree that the two allegations selected by the majority, standing alone, do not state a plausible entitlement to relief for unconstitutional discrimination.”  [Citations omitted]

Related Legal Terms and Issues

• Appellate Court – A court having jurisdiction to review decisions of a trial-level or other lower court.
• Defendant – A party against whom someone has filed a lawsuit in civil court, or has charged with a crime or offense.
• Due Process – The fundamental, constitutional right to fair legal proceedings in which all parties receive notice of the proceedings, and have an opportunity to defend themselves.