When the Government Makes a Promise, It Must Keep Its Word

During my misspent youth at the U.S. Department of Justice, there was a fashion for law enforcement “stings.” Someone in the United States Marshals Service came up with the clever idea of (if memory serves) sending letters purporting to come from the New York Giants, offering free tickets to Giants games, to the last known addresses of a bunch of fugitives from justice, and then arresting the suckers when they showed up. Worked like a charm, and everyone (save the fugitives) had a good laugh at their expense.

Then someone else had what seemed at first blush to be a similar idea: Send letters on Immigration and Naturalization Service letterhead, offering a lottery for Green Cards, to people who had overstayed their visas and had deportation orders pending. Again, the idea was to arrest the marks when they came in.

When this clever idea came to the Criminal Division’s Office of Enforcement Operations for approval, the veteran OEO Section Chief, the usually imperturbable Jerry Shur, completely blew his stack. “Absolutely not!” he roared. When a more junior attorney gingerly asked what was so objectionable about the idea, given the general approval of the “Giants tickets” sting, Jerry gave an unforgettable reply. “Because we’re the government of the United States of America, and our word is always good. Period.”

Shur’s point was that no serious damage was done if people learned to distrust a sports franchise offering something for nothing, but that if people learned to distrust official offers from Federal agencies the resulting harm would be irreparable. Once he’d made that case, no one had an answer, and the idea was allowed to die a peaceful death. I filed the Jerry Shur Principle under “Never forget.” It’s come in handy often since.

The latest case to which that principle applies comes with a twist. Recall that during the Iraq War, after the promised “crowds of Iraqis greeting us as liberators” failed to appear, the military had a tremendous problem meeting its recruiting and retention goals. As a result, DoD approved a very generous bonus program, with cash bonuses and student-loan forgiveness running into the tens of thousands of dollars for each recruit. Now it comes out that the California National Guard (under Gov. Schwartzengroper), which was having an especially tough time meeting its quotas, resorted to widespread cheating, offering bonuses that the target recruits weren’t actually entitled to, even under the new and more generous regs.

Years later, an audit by DoD discovered the overpayments. As a result, thousands of Californians who trusted the word of their National Guard recruiters – men and women wearing the uniform of the United States of America – are being dunned for repayment of the money they took in good faith to fight a war no one else wanted to fight.

The Master Sergeant who ran the program (and who might well have lost his job if he’d failed to meet unmeetable quotas) took a hard fall, doing 30 months in prison; three officers got off with probation. As usual, the folks who had the fancy titles and drew the big salaries, including the Guard commander and the Governor, managed to preserve their deniability.

It seems to me that if someone has to take a financial hit for the misconduct of the California National Guard, it ought to be the California National Guard, not the soldiers who were victims of official misconduct. Unless the LA Times story simply gets it wrong, there is no reason to think that the people who received the money were complicit in wrongdoing.

I understand that the officials at DoD, and the Assistant U.S. Attorneys who are pressing the legal claims, are just doing their jobs; it shouldn’t be in the discretion of individual officials to acquiesce what amounts to a theft of taxpayers’ money. And it’s possible that even the Secretary of Defense and the President lack the power to waive these claims.

But President Obama (or President Clinton) can, and should, propose to the Congress a bill for the relief of the victims; in justice, that should include giving back the $22 million that has been repaid so far. We’re the government of the United States of America, and our word is always good. Period.

[Cross-posted at The Reality-Based Community]

Mark Kleiman

Mark Kleiman is a professor of public policy at the New York University Marron Institute.