“It is difficult to overstate the profoundly negative impact that corruption has on society.  The abuse of entrusted power for private gain does violence to our values, our prosperity, and even our security.” — Secretary of State John Kerry

For a government so concerned with the fight against corruption, the United States sure does bribe a lot.  In fact, only months before Secretary Kerry delivered those remarks in December 2013, the New York Times revealed that the Central Intelligence Agency had been delivering millions of dollars in “ghost money” — packed in “suitcases, backpacks, and on occasion, plastic shopping bags” — to the office of Afghan President Hamid Karzai for more than a decade.  In a way, this story was old news; it’s been known for years that the CIA has done everything from slipping little blue pills to local Afghan chieftains to bankrolling members of the Afghan National Security Council.  As it turns out, bribing foreign officials in the name of national security has been a standard practice at the CIA for decades, one that the public seems to have tacitly accepted.

Standard practice or not, how can one reconcile this state-sponsored corruption with the U.S. government’s efforts to combat transnational bribery?  Is it hypocritical for the U.S. Department of Justice to punish private firms that bribe foreign officials, while the CIA is bribing those same officials at the same time?

Perhaps in some cases it might be, but there a couple of possible justifications for aggressively prosecuting private bribery while at the same time accepting the permissibility of state-sponsored bribery (at least under some circumstances):

One possible justification is that state actors are less likely to bribe foreign officials for personal gain, as opposed to a legitimate national interest.  When CIA officers bribe an Afghan official to stop harboring Taliban fighters, that bribery is presumably intended to save American lives and serve broader U.S. national security interests.  The same could be said of bribes paid by British officers to a foreign minister to induce him to open his nation’s airspace to British warplanes. These officers bribe not to line their own pockets but to address a public goods problem in providing for the political, economic, and general security interests of their home state’s citizenry.  Perhaps the public briber, then, is generally less morally culpable than his private counterpart.

But there are two problems with this justification.  To begin, “public-regarding” motives for bribery are not unique to state actors.  Imagine a private actor — like an NGO — bribing to get clean water flowing to a village or carry vaccines past a roadblock.  (That said, such bribes would probably not violate the Foreign Corrupt Practices Act, which only prohibits bribes paid to obtain or retain business.)  Additionally, it would be naïve to think that state actors never harbor personal motives for paying bribes.  If an intelligence officer is ordered to bribe a foreign official, and he later gets preferential treatment or is able to solicit private sector work from that official given their preexisting “relationship,” has the public- vs. private-regarding line not been crossed?

An alternative justification looks to the demand side: state-sponsored bribery might have a less corrosive effect on the recipient nation.  Bribery by both state and private actors is likely destructive to the effective operation of, and public confidence in, foreign governmental institutions in similar ways and to similar degrees.  But if one assumes that state-sponsored bribery is largely aimed at things like securing overflight rights or interrupting the flow of arms to militant groups rather than directing contracts to this or that business, then public bribery might be less likely to introduce market inefficiencies.

Unsurprisingly, there are problems with this second justification as well. Chief among them is the simple fact that not all state-sponsored bribery is created equal.  Just as a state may bribe to save lives, for example, it could also bribe to take them.  If a state bribes a foreign official to execute a civil rights advocate or an opposition leader, it’s hard to defend that as being any less detrimental to the recipient nation than an act of straightforward commercial bribery.  Just as “good” bribery motives are not unique to the state, neither are “bad” bribery motives the exclusive domain of the private actor.

What does this teach us about the legal and moral justifications for treating state-sponsored bribery differently?  In my view, bribery by the state is a more morally defensible practice insofar as it is (1) more likely to be public regarding and (2) less likely to be destructive to the recipient nation.  But there is surely a large grey area between state-sponsored “ghost money” and bribery by private actors where those two distinctions begin to break down. Perhaps as state-sponsored bribery begins to look more and more like private commercial bribery, or as it creeps across some theoretical moral boundary, it is no longer distinguishable or defensible.  How to draw that line — dividing bribery in the national interest into camps of the permissible and the impermissible — though, is a difficult task for a different day.