Plausible Deniability

Iran Contra by Martin Kozlowski

Plausible deniability is the ability of people (typically senior officials in a chain of command) to deny knowledge of or responsibility for any damnable actions committed by others in an organizational hierarchy because of a lack of evidence that can confirm their participation, even if they were personally involved in or at least willfully ignorant of the actions.

In the case that illegal or otherwise disreputable and unpopular activities become public, high-ranking officials may deny any awareness of such acts to insulate themselves and shift blame onto the agents who carried out the acts, as they are confident that their doubters will be unable to prove otherwise.

The lack of evidence to the contrary ostensibly makes the denial plausible; that is, credible, although sometimes it merely makes it unactionable. The term typically implies forethought, such as intentionally setting up the conditions to plausibly avoid responsibility for one’s (future) actions or knowledge. In some organizations, legal doctrines such as command responsibility exist to hold major parties responsible for the actions of subordinates involved in heinous acts and nullify any legal protection that their denial of involvement would carry.

High-ranking officials in more typically Eastern cultures, such as Japan or Korea, are often expected to take full responsibility for improper actions by their subordinates. As an example, Japanese CEOs have made dramatic public apologies and even committed suicide when their companies have been dishonored in some way.

In politics and espionage, deniability refers to the ability of a powerful player or intelligence agency to pass the buck and avoid blowback by secretly arranging for an action to be taken on their behalf by a third party ostensibly unconnected with the major player. In political campaigns, plausible deniability enables candidates to stay clean and denounce third-party advertisements that use unethical approaches or potentially libelous innuendo.

In the US, plausible deniability is also a legal concept. It refers to lack of evidence proving an allegation. Standards of proof vary in civil and criminal cases. In civil cases, the standard of proof is ‘preponderance of the evidence,’ whereas in a criminal matter, the standard is ‘beyond a reasonable doubt.’ If an opponent cannot provide evidence for his allegation, one can plausibly deny the allegation even though it may be true.

Although plausible deniability has existed throughout history, that name for it was coined by the CIA in the early 1960s to describe the withholding of information from senior officials in order to protect them from repercussions in the event that illegal or unpopular activities by the CIA became public knowledge. The roots of the name go back to a national security council paper in 1948 for Harry Truman, which defined ‘covert operations’ as ‘…all activities (except as noted herein) which are conducted or sponsored by this Government against hostile foreign states or groups or in support of friendly foreign states or groups but which are so planned and executed that any US Government responsibility for them is not evident to unauthorized persons and that if uncovered the US Government can plausibly disclaim any responsibility for them.’ During Eisenhower’s administration, ‘NSC 10/2’ was incorporated into more specific ‘NSC 5412/2’ ‘Covert Operations,’ which was declassified in 1977, and is located at the National Archives.

Arguably, the key concept of plausible deniability is plausibility (i.e. believability, credibility). It is relatively easy for a government official to issue a blanket denial of an action, and it is possible to destroy or cover up evidence after the fact, and this might be sufficient to avoid a criminal prosecution, for instance. However, the public might well disbelieve the denial, particularly if there is strong circumstantial evidence, or if the action is believed to be so unlikely that the only logical explanation is that the denial is false.

The concept is even more important in espionage. Intelligence may come from many sources, including human sources. The exposure of information to which only a few people are privileged may directly implicate some of those people in the disclosure. Take for example a scenario where an official is traveling secretly, and only one of his aides knows the specific travel plans. The official is assassinated during his travels, and the circumstances of the assassination strongly suggest that the assassin had foreknowledge of the official’s travel plans. The probable conclusion is that his aide has betrayed the official. There may be no direct evidence linking the aide to the assassin, but collaboration can be inferred from the facts alone, thus making the aide’s denial implausible.

The expression ‘plausibly deniable’ was first used publicly by CIA director Allen Dulles. The idea, on the other hand, is considerably older. For example, in the 19th century, English mathematician Charles Babbage described the importance of having ‘a few simply honest men’ on a committee who could be temporarily removed from the deliberations when ‘a peculiarly delicate question arises’ so that one of them could ‘declare truly, if necessary, that he never was present at any meeting at which even a questionable course had been proposed.’

A U.S. Senate committee, the Church Committee, in 1974–1975 conducted an investigation of the intelligence agencies. In the course of the investigation, it was revealed that the CIA, going back to the Kennedy administration, had plotted the assassination of a number of foreign leaders, including Cuba’s Fidel Castro. But the president himself, who clearly was in favor of such actions, was not to be directly involved, so that he could deny knowledge of it. This was given the term ‘plausible denial’.

According to the Church Committee: ‘Non-attribution to the United States for covert operations was the original and principal purpose of the so-called doctrine of ‘plausible denial.’ Evidence before the Committee clearly demonstrates that this concept, designed to protect the United States and its operatives from the consequences of disclosures, has been expanded to mask decisions of the president and his senior staff members.’

Plausible denial involves the creation of power structures and chains of command loose and informal enough to be denied if necessary. The idea was that the CIA (and, later, other bodies) could be given controversial instructions by powerful figures—up to and including the President himself—but that the existence and true source of those instructions could be denied if necessary; if, for example, an operation went disastrously wrong and it was necessary for the administration to disclaim responsibility.

The ‘Hughes–Ryan Act of 1974′ sought to put an end to plausible denial by requiring a Presidential finding that each operation is important to national security, and the Intelligence Oversight Act of 1980 required that Congress be notified of all covert operations. But both laws are full of enough vague terms and escape hatches to allow the executive branch to thwart their authors’ intentions, as the Iran–Contra affair has shown. Indeed, the members of Congress are in a dilemma: when they are informed, they are in no position to stop the action, unless they leak its existence and thereby foreclose the option of covertness.

The Church Committee conceded that to provide the United States with ‘plausible denial’ in the event that the anti-Castro plots were discovered, Presidential authorization might have been subsequently ‘obscured.’ The committee also declared that, whatever the extent of the knowledge, Presidents Eisenhower, Kennedy, and Johnson should bear the ‘ultimate responsibility’ for the actions of their subordinates.

In talking to the President and others outside the agency, CIA officials deliberately used ‘Aesopian language,’ communications that convey an innocent meaning to outsiders but hold a concealed meaning to informed members of a conspiracy or underground movement. ‘Richard Helms testified that he did not want to ’embarrass a President’ or sit around an official table talking about ‘killing or murdering.’ The report found this ‘circumlocution’ reprehensible, saying: ‘Failing to call dirty business by its rightful name may have increased the risk of dirty business being done.’

‘What made the responsibility difficult to pin down in retrospect was a sophisticated system of institutionalized vagueness and circumlocution whereby no official – and particularly a President – had to officially endorse questionable activities. Unsavory orders were rarely committed to paper and what record the committee found was shot through with references to ‘removal,’ ‘the magic button’ and ‘the resort beyond the last resort.’ Thus the agency might at times have misread instructions from on high, but it seemed more often to be easing the burden of presidents who knew there were things they didn’t want to know.’

The doctrine had several major flaws. First and foremost, it was an open door to the abuse of authority; it required that the parties in question could be said to have acted independently, which in the end was tantamount to giving them license to act independently. Furthermore, the denials were sometimes seen as plausible and sometimes seen through by both the media and the populace. One aspect of the Watergate crisis is the repeated failure of the doctrine of plausible deniability, which the administration repeatedly attempted to use to stop the scandal affecting President Richard Nixon and his aides.

Plausible denial also increased the risk of misunderstanding between senior officials and their employees. Additionally, if the claim failed, it seriously discredited the political figure invoking it as a defense. (‘It’s not the crime, it’s the cover-up’). Lastly, even if a claim of plausible deniability succeeds, it creates the impression that the government is not in control of the state (‘asleep at the switch’).

Another example of plausible deniability is someone who actively avoids gaining certain knowledge of facts because it benefits that person not to know, also known as willful ignorance. For example, an attorney may suspect that facts exist which would hurt his case, but decide not to investigate the issue because if they had actual knowledge, the rules of ethics might require revealing those facts to the opposing side.

In computer networks, deniability often refers to a situation where a person can deny transmitting a file, even when it is proven to come from their computer. This is sometimes accomplished by setting the computer to relay certain types of broadcasts automatically in such a way that the original transmitter of a file is indistinguishable from those who are merely relaying it. In this way, the person who first transmitted the file can claim that their computer had merely relayed it from elsewhere. The Freenet file sharing network is another application of the idea. It obfuscates data sources and flows in order to protect operators and users of the network by preventing them (and, by extension, observers such as censors) from knowing where data comes from and where it is stored.

In cryptography, deniable encryption may be used to describe steganographic techniques (concealing a file, message, image, or video within another file), where the very existence of an encrypted file or message is deniable in the sense that an adversary cannot prove that an encrypted message exists. In this case the system is said to be ‘fully undetectable’ (FUD). Some systems take this further, such as MaruTukku, FreeOTFE and (to a much lesser extent) TrueCrypt and VeraCrypt, which nest encrypted data. The owner of the encrypted data may reveal one or more keys to decrypt certain information from it, and then deny that more keys exist, a statement which cannot be disproven without knowledge of all encryption keys involved. The existence of ‘hidden’ data within the overtly encrypted data is then deniable in the sense that it cannot be proven to exist.

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