This is not relevant to any real situation, just an interesting (to me at least) hypothetical situation.
Can the Government legally order a private citizen to lie? Formally that is. Backed by the courts and police and jail etc.
This is the hypothetical situation I thought of.
I have some files on my hard disk that are encrypted with an unbreakable code. I have given the secret password to another person who, for the purposes of this discussion, is outside the authority of the US Government. Lets say he is a monk in Myanmar and the US Federal Government, no matter how high up the order goes, can’t reach this person. If my example doesn’t suit, feel free to make up your own example of a person whom the US can’t reach. I contract with this person, paid in advance, to hold the secret password on only give it to me if I tell him I am not being coerced into asking for it. I do this for the sensible and legal reason that I fear criminals will kidnap me and attempt to steal my secrets-which are in the encrypted files. (never mind that criminals would be unlikely to follow the law in forcing me to lie to the monk.)
So the government gets a court order and seizes my computer. They try and can’t break the encryption. They haul me into court and order me to produce the secret password. Under threat of legal action I agree to cooperate. I call my monk and he asks: are you being coerced into asking for this password. I answer truthfully. He says that since that is the case, he can’t give me the password. Can the Government order me to lie to the monk? Remember I am cooperating fully. I am doing everything in my power to obtain the password-short of lying . Is the Government stuck? Can they do anything to me because they can’t read the files?
It seems to me that as long as I am under coercion, even by a judge, I can’t truthfully get the password. If the Government wants the password, they would have to release me from any threat of punishment-or force me to lie. Can they ever do the latter? Which means there is an option available to the Government, so they can’t argue that they have no alternative except to force me to lie.
Ah, but you aren’t “cooperating fully.” You are weaseling out of an agreement you have made with the Government. There are countless instances of people who cut a deal who then lie, deceive, and mislead their partners into giving the Feds all the evidence they need in exchange for a lighter sentence. If you were truly “cooperating,”. you would lie to the monk, or lie to yourself about being coerced.
It’s very unlikely your “deal” with the government includes some hypertechnical garbage about how merely asking for the password is sufficient to meet your agreement. If they needed the files decrypted, then the agreement would be, “Provide the decrypted files.”
Nor would your pious refusal to lie be accepted as an excuse. The lie you told wouldn’t expose yout to any financial or legal penalities, so your refusal to tell it would undoubtedly be seen as non-cooperative and would void the agreement.
If you are cooperating with the government and truly trying to obtain the password, then you are not acting under coersion, and your can tell this truth to the monk without lying.
Well, then maybe cooperating is not the right term for the situation, as it implies a willful decision to help. I’d say that he is complying with the order, but that does at least leave the possibility of coercion open.
The hypothetical is a bit odd, though, in that the point at issue is so subjective. It’d be possible to construct an example in which the point was factual and still be equally important I think - though if the facts in question are financial, say, that opens up the possibility of the lie also being an act of fraud.
But he is being coerced, with the threat of legal action. He’s only agreeing to cooperate due to the alternative, since he wouldn’t give it up otherwise (since his will isn’t likely to have legal action taken against him, he’s being forced by authority with an ultimatum). A contract with the monk states not to give him the password if he’s being coerced, and was paid to uphold the contract.
He may not get the deal in the end because of Brickers’ idea that the agreement would be “Provide the decrypted files.” But if the government just wants the password and you agree to their terms to try and get the password, there’s a going to be a loop somewhere and the government won’t get the password as long as the monk sees coercision.
Let me elaborate a bit.
I wasn’t thinking that I have some form of agreement with the government at the start of this, say copping a plea or whatever it is called. The scenario is that the Gov’t has my computer, through whatever legal means the Gov’t acquires evidence. They want to read the files. I don’t want them to. But I am trying to avoid digging the hole deeper. I want to avoid being accused of being uncooperative. However in this scenario as long as I am under the threat of coersion, I can’t obtain the secret code, even if I try my best-short of lying. Can the Gov’t go to a judge and tell her that I refused to cooperate because I refused to lie?
We need a Clintonesque lawyer to come along and split hairs over the meaning of the term “coerce”. I would bet that with the right kind of mental gymnastics, an agreement with the government, which has the benefit of avoiding certain unpleasant consequences, could be perceived as other than coercive.
Perhaps you could, in the process of negotiations with the government, get something you can choose to perceive as a carrot rather than a stick, or more likely in addition to a stick. IOW, some positive benefit would accrue to you for completing the deal, not merely the removal of a negative thing. Would that be sufficient? Like going into the Witness Protection Program and being given what amounts to a small pension or a new start.
On the whole, I agree with Bricker. Technically they may not be able to make you lie, but you will face nasty consequences if you don’t. Because your OP suggests that the government will accept your word to “try” for the codes as upholding your end of the bargain. If Alberto Gonzales was still the head of the Justice Department, you might have had a shot.
Consider a plea deal that was conditioned on a witness wearing a wire to incriminate his criminal associates. Certainly, if he was asked by his compatriots, “You’re still with us, right?” and he answered, “No; in fact, I’m wearing a wire and taping this whole deal to get all you guys convicted!” he could not then claim he cooperated, or that the government’s insistence he lie in response to their question was unreasonable.
