DISCLAIMER The following is a staff memorandum or other working document prepared for the members of the Advisory Committee on Human Radiation Experiments. It should not be construed as representing the final conclusions of fact or interpretation of the issues. All staff memoranda are subject to revision based on further information and analysis. For conclusions and recommendations of the Advisory Committee, readers are advised to consult the Final Report to be published in 1995. TAB F DRAFT FOR DISCUSSION PURPOSES ONLY MEMORANDUM TO: Members of the Advisory Committee on Human Radiation Experiments FROM: Allen Buchanan DATE: February 8, 1995 RE: The Ethics of Bureaucratic Organizations I. MORAL JUDGMENTS CONCERNING BUREAUCRATIC ORGANIZATIONS AND THE PERSONS WORKING WITHIN THEM Depending upon the roles they occupy in the organization, individuals who are employed within bureaucratic organizations have distinctive legal obligations. These legal obligations are articulated in the law of agency and in special statutes, charters, and regulations targeted toward specific organizations or classes of organizations. It is important to distinguish between legal and moral obligations. In some cases, a comprehensive understanding of one's legal obligations does not answer all ethical questions, and in some cases (for example, where laws are ethically defective) legal and ethical obligations may be in conflict. The individual and collective moral obligations pertaining to bureaucratic organizations cannot simply be read off from official documents. Many organizations lack codes of ethics altogether and where codes do exist they may not cover all ethical obligations. Instead, for the most part the ethical obligations of bureaucratic organizations must be inferred from an understanding of the nature of such organizations in general and from relevant facts about particular organizations. Participation in a bureaucratic organization typically brings with it new and distinctive obligations. Hence in evaluating the conduct of individuals in such organizations, more is required than a grasp of the moral obligations that persons generally have. In what follows, a framework is developed for understanding the ethics of bureaucratic organizations. The emphasis is on what is common to such organizations, not on the peculiar features that distinguish various types. 1 II. ROLE-DERIVED ETHICAL OBLIGATIONS Crucial to an understanding of the ethics of bureaucratic organizations is the fact that all such organizations are constituted by a highly developed division of labor in which different individuals and subgroups occupy different roles within a multi-leveled or hierarchical structure. The products of bureaucratic organizations-- from particular decisions to general policies--are typically joint products, the results of numerous actions by individuals occupying various roles. Assuming that (a) participation in the bureaucratic organization is substantially voluntary and that (b) the organization's defining purposes are morally legitimate (e.g., it is not a criminal organization), individuals in the organization have a prima facie ethical obligation to fulfill the obligations they have as a result of their roles in the organization. In other words, one's role-derived (organizational) obligations become ethical obligations when one willingly participates in a legitimate organization. III. ROLE-DERIVED ETHICAL OBLIGATIONS ARE NOT ABSOLUTE: A PERSON DOES NOT DIVEST HIMSELF OF MORAL RESPONSIBILITY, DOES NOT CHECK HIS CONSCIENCE AT THE DOOR, IN TAKING ON AN ORGANIZATIONAL ROLE To say that these role-derived obligations are prima facie obligations is to say that they are not absolute: They may be overridden by other, weightier obligations, including obligations that we all have independently of our specific roles in the various organizations and associations in which we participate. Such general obligations include the obligation not to harm innocent persons (at least not without their consent), the obligation not to lie, not to exploit the vulnerable, etc. Each of these general obligations typically will have an exception clause and itself may be overridden, under certain conditions, by other moral considerations. For example, there may be circumstances under which it is permissible to tell a lie to avert the destruction of an innocent person (for example, when murders ask one the whereabouts of an innocent person whom they seek to destroy). 2 The fact that role-related obligations are limited by general moral obligations is extremely important. This limitation is a direct consequence of a basic principle of common sense morality. It might be called "the principle of the inescapability of individual responsibility." The idea, quite simply, is that taking on organizational responsibilities does not absolve one of the responsibility for one's conduct and hence that one may never rightly suspend one's judgment as to whether what one is required to do by virtue of one's organizational role is morally permissible. This principle of morality has analogs in the law. In the common law, the obligations of subordinates to carry out the orders or instructions of their superiors are understood to be limited, not absolute: The fact that one is ordered by one's superior to perform a certain action does not provide an excuse or justification for doing so if the action is wrongful. According to military law, military personnel may refuse an order to commit an illegal act. Thus in both the common law and in military law, the fact that one was ordered to perform an illegal act does not constitute an excuse or a justification for performing it. Likewise, the fact that one is ordered to perform an action that is immoral does not free one of moral culpability. That one's role-derived obligations do not absolve one of other moral responsibilities is perhaps clearest in the case of general moral principles that ascribe rights to persons. The fact that one has assumed certain obligations as a consequence of occupying a role in a bureaucratic organization does not affect the general rights of persons. Hence if, in an effort to carry out one's responsibilities in one's role in the organization, one violates a persons's rights, it will be beside the point to appeal to the requirements of one's role. Although in some cases the person himself may be able to waive a right and hence to release others from their corresponding obligations toward him, no assumption of a role by one person can nullify the right of another person. The fact that you have joined an organization and subjected yourself to those who are your superiors in the organization does not free you of your obligation not to infringe other persons' rights, even if your superior orders you to do so. In general whatever general rights persons have are unaffected by the changes in one's obligations that occur as the result of occupying a bureaucratic role. IV. THREE BASES FOR ROLE-DERIVED (ORGANIZATIONAL) OBLIGATIONS The obligations that individuals have by virtue of their roles in bureaucratic organizations have three distinct bases or sources: (a) The goals of the organization, (b) orders from superiors or collective 3 decisions from authorized groups within the organization that impose specific obligations; and (c) the general characteristics required for well-functioning bureaucratic organizations. In other words, in order to determine what obligations persons within bureaucratic organizations have, we must ask three questions: What are the distinctive goals of the organization; what specific obligations do they have by virtue of the orders their superiors have issued or by virtue of collective decisions made by authorized subgroups in the organization of which they are members (e.g., the obligations a project team imposes on its members through its collective decisions); and what obligations can be inferred from an understanding of what it generally takes to make such an organization perform effectively? A. Obligations Derived from the Goals of the Organization These obligations are by their nature abstract, vague, and in need of translation into concrete duties and tasks assigned to particular individuals and groups. For example, the chief obligation of a for-profit firm may be to maximize value for stockholders. Although in a sense it is correct to say that all members of such an organization have the obligation to contribute to the attainment of this goal, such a statement is uninformative until more is said about what the individual's particular role in the organization is, what the structure of the organization is, what resources are, or are likely to be, available (to whom) within the organization, and what the strategy of the organization for attaining its goals is. One of the chief functions of organizational leaders is to translate abstract goals into an allocation of concrete responsibilities, along with a system of rewards and penalties to supply effective incentives for individuals to carry out those responsibilities. B. Obligations Imposed by Orders from Superiors or by Collective Decisions Within the Organization 1. Orders from superiors. These are the most obvious and uncontroversial obligations of persons in bureaucratic organizations. For example, if A is B's superior and hence authorized to direct B's behavior, and A issues an order to B, then B is obligated to act accordingly, unless what A orders is not within the scope of his authority. Difficulties may arise, of course, if the scope and limits of A's authority over B are unclear. 2. The results of collective decisions. In many cases there are decision making processes within bureaucratic organizations that are horizontal rather than vertical i.e., hierarchical). 4 For example, the members of a subgroup within the organization may impose upon themselves an obligation to put in the necessary overtime hours to meet an important deadline. One characteristic of a well-functioning organization is the ability to make it clear what such collective decisions imply for the concrete behavior of each member of the team. If a collective decision is made, but the individual behavioral implications of the decision-- what it will take from each member if the object of the decision is to be attained--is left unclear, then there may be a failure to implement the decision successfully. C. Obligations Derived from the Characteristics of Well- Functioning Bureaucratic Organization To the extent that bureaucratic organizations have certain general structural features in common, there are some characteristics that all such organizations must possess to function well. These include: (a) clear chains of command and clear assignments of responsibility, (b) efficient communication, (c) an atmosphere in which constructive criticism is encouraged and rewarded so that suboptimal policies or implementation of policies can be detected and corrected, and (d) a climate of respect and recognition for merit that nurtures the motivation and initiative in the members of the organization. Since an organization will have these characteristics only if individuals within it act in certain ways, the fact that the well-functioning of the organization depends upon them generates obligations on individuals to conduct themselves in such a way that their organization will have these characteristics. V. DIFFERENT ROLES CARRY DIFFERENT OBLIGATIONS Superiors (managers) have different obligations than subordinates (employees), although the same person will be a subordinate relative to individuals higher in the hierarchy and a superior relative to others lower in the hierarchy. A. Obligations of Superiors 1. to formulate policy designed to achieve the organization's goals 5 2. to take reasonable steps to see that (a) policies are successfully implemented, and that (b) the methods of implementation are legitimate & efficient. The obligation to take reasonable steps to see that policies are successfully implemented and in an efficient and legitimate manner entails a number of more specific obligations on the part of superiors: (i) to ensure that competent & trustworthy persons are selected for subordinate positions (ii) to ensure that the performance of subordinates is adequately monitored (iii)to ensure that good performance is encouraged & poor performance corrected and/or penalized (iv)to ensure that there are clear lines of authority and responsibility--to ensure that subordinates' roles and their corresponding obligations are clearly & concretely specified Note: (iii) and (iv) together might be called "the obligation to create conditions of accountability"--conditions in which the effectiveness of policies can be evaluated and in which assessments of individual praise and blame can be responsibly made. 3. to engage in constructive criticism and, where necessary, to exercise conscientious dissent, in order to attempt to correct misdirected or illegitimate policy goals B. Obligations of Subordinates 1. to carry out one's own role-defined responsibilities efficiently and through legitimate methods. 2. to facilitate and not to hinder others in carrying out their role-defined responsibilities. 6 3. to cooperate with co-workers and superiors in achieving accountability, so that implementation of policy can be successfully achieved and so that individual performance can be accurately evaluated and rewarded and/or corrected or penalized (in other words, to cooperate in creating a system where praise and blame can be appropriately assigned) 4. to engage in constructive criticism of policies and implementation (Note: The extent of this obligation to engage in constructive criticism depends in part upon the personal costs which the subordinate will bear if he engages in criticism; and this in turn will depend upon whether the organizational culture encourages or discourages responsible criticism, recognizes that there can be dissent without disloyalty, etc. It follows that an important obligation of superiors is to help create, through their own example, through explicit procedures and internal policy statements, through the selection of personnel and through a system of rewards and penalties, an organizational culture that encourages constructive criticism) VI. DERIVING THE CHARACTERISTICS OF WELL-FUNCTIONING ORGANIZATIONS: THE METHOD OF NEGATIVE EXAMPLE The forgoing list of characteristics generally needed for well- functioning of bureaucratic organizations (which does not purport to be exhaustive) is most readily derived from reflection on actual instances in which organizations produce disastrous outcomes. For example, analysts of organizational behavior have concluded that those organizations that penalize or discourage constructive criticism of the decisions of those in positions of authority are prone to self-defeating outcomes because they thereby deprive themselves of opportunities to correct mistakes before they become extremely costly. cite the Air Force Brake Scandal, and the Apollo disaster case studies]. Even if we limit ourselves to the evaluation of organizational behavior from the standpoint of efficiency in the attainment of the goals of the organization and the avoidance of costly scandals, then, a strong case can be made that organizations exhibiting the characteristics listed above ((a)-(d)) tend, on average and in the long-run, to be more successful according to their own criteria of achievement. VII. THE CORRECTIVE FUNCTION OF BUREAUCRATIC ETHICS Due to their inherent structure, bureaucratic organizations are prone to certain maladies. One important function of the distinctive ethics of bureaucratic organizations is to reduce the incidence and severity of these maladies. In other words, the ethical commitments of persons in bureaucracies are to be understood as functioning in part to correct for certain defects that are likely to afflict this type of organization. Analogously, codes of ethics for medical professionals function to protect against certain moral risks that are inherent in the nature of the physician-relationship, in particular the physician's opportunities for exploiting the asymmetry of knowledge that is characteristic of this principal-agent relationship or for breaching or exploiting confidential information to the patient's detriment. 7 Among the most serious defects to which bureaucratic organizations are prone is lack of accountability on the part of individuals and subgroups within the organization, both to those outside the organization whose interests the organization is supposed to serve, and to those within the organizational hierarchy who are in positions of authority. Accountability, both external and internal, is necessary in order to ensure that the goals of the organization are attained and that resources are used responsibly in the pursuit of these goals. Accountability requires the capacity not only to determine whether goals are met and when they are not, but also to locate responsibility for failures within the complex web of interactions in the organization, so that appropriate incentives can be applied to ensure that errors are corrected. Achieving accountability is difficult, however, because some or all individuals within the organization often have incentives to make it difficult to determine responsibility for results. Even when the nature of the organization's goals do not mandate secrecy (as, for example, in weapons research conducted by the Department of Defense) there are often strong incentives for individuals in the organization to act in such a way as to make it difficult to trace failures of policy or implementation to themselves. Furthermore, in many bureaucratic organizations, especially those in the public sector, a high degree of job security and virtually automatic advancement along a prescribed career track or salary ladder is used as an inducement to recruit members. In consequence there may be stronger incentives for avoiding detectable errors than for producing exceptionally good results. When the incentives are aligned in this fashion, the members of the organization will have a common interest in developing styles of documentation, communication, and operating procedures which make it difficult to fix responsibility for outcomes on particular individuals. For all of these reasons, the imputation of responsibility is often difficult, at least if one attempts to go beyond extremely general judgments of the form "the agency acted in such and such a way" to more particular statements about the responsibility of particular individuals or subgroups within the organization. One important determining feature of the ethics of bureaucratic organizations, therefore, is the need to counteract this tendency to undercut the possibility of making substantive and particularized judgments of responsibility. Put more positively, the need to achieve 8 conditions under which individuals and the organization as a whole can be held accountable shapes the obligations which persons in bureaucratic organizations have. Among the most important of the ethical commitments that are needed to combat the inherent tendency of bureaucratic organizations to undermine the conditions for accountability is the obligation to ensure accurate documentation. VIII. CREATING CONDITIONS FOR ACCOUNTABILITY AND FOR THE EVALUATION AND PROGRESSIVE REVISION OF POLICIES AND PROCEDURES FOR THEIR IMPLEMENTATION--THE ROLE OF DOCUMENTATION Quite apart from the fact that individuals typically have strong incentives to make the ascription of blame for failures difficult, bureaucratic organizations have several other features that make documentation essential for adequate evaluation and progressive improvement of policies and procedures and for accountability--both within the organization and to the larger public it is supposed to serve. These features include: the fact that interactions and activities within bureaucracies often take place over long stretches of time, the fact that there are significant changes in personnel over time and the consequent need for effective procedures for transferring responsibilities and for training new personnel to carry on activities already underway, and the fact that individuals in bureaucracies have incentives to attempt to avoid personal responsibility for actions they undertake in order to avoid possible penalties or reprimands if things go awry. In general, good documentation is needed in order to ensure the proper coordination of the efforts of many people in complex activities, to make it possible to evaluate procedures and policies in order to determine their effectiveness, to be able to make appropriate revisions for improvement, and in order to determine why things go wrong when they do and why they go right when they do. In this sense, good documentation is not extrinsic to effective policy implementation, it is in part constitutive of it. None of this is to say that documentation is costless, nor to deny that good judgment must be exercised in determining when documentation is needed and when it is not. Although there will always be gray areas, some generalizations about when documentation is needed are possible. For instance, in order to ensure that reasonable steps are taken to implement policies effectively, it is necessary to be in a position to determine whether procedures for implementation are being developed and instituted in a timely fashion, and whether these policies are adequate. In most instances it will not be possible to do this without well-documented communication between the leaders who formulate policy and those whom they direct to develop procedures for implementation. 9 IX. THE CORRELATIVITY OF CONTROL AND RESPONSIBILITY To the extent that those in positions of greater authority within the organization have greater ability to determine whether the organization exhibits the characteristics necessary for it to function well, they have more demanding obligations. Consequently, if communication in the organization is poor or if employees are afraid to offer constructive criticism of their superiors, there is a prima facie case for making the judgment that those in the highest positions of authority are culpable for these deficiencies. In other words, the greater the ability to control the characteristics of the organization, the greater the responsibility for insuring that the organization has the desired characteristics. X. CULPABLE VERSUS NONCULPABLE INABILITY TO REMEDY ORGANIZATIONAL DEFECTS In some cases the leaders of an organization will not be able to exercise sufficient control over the behavior of their subordinates to ensure that the organization exhibits the characteristics generally necessary for an organization to function well. It is important to emphasize that this failure of control on the part of the leadership can result from either of two quite different causes. On the one hand, the structure of the organization may be inherently defective and the leadership may lack the authority or the power to remedy these structural defects. In other words, the failure of the organization to exhibit the characteristics generally necessary for organizations of that type to function well may result from structural defects which the leadership is, through no fault of its own, unable to correct. In such a case, the leadership cannot be faulted for lacking the ability to ensure that the organization has the characteristics required for it to function well. In other cases, however, the leadership will have the authority and power to correct structural defects. If the leadership fails to make the needed structural changes, it has failed to fulfill one of its most important obligations. Similarly, in some cases the failure of the organization to exhibit the characteristics needed for it to function well will be the result of defects in the performance of certain members of the organization. If the leadership has the authority and power to ensure that these defects are remedied (e.g., through special training) or to replace the individuals in question with others who will not exhibit the defects, then the leadership is obligated to do so. For leaders in the organization to fail to correct remediable defects in personnel is a serious breach of duty. 10 In some cases, however, organizational leaders may lack the authority or the power to remedy defects in personnel. Where this is so, they cannot be faulted for failing to do what they are powerless to do. This problem is especially serious in bureaucratic organizations such as the civil service in which their are significant institutional barriers against firing or demoting long-term employees. To summarize: Whether leaders are culpable for not correcting structural defects or personnel defects will depend upon whether they have the authority and power to do so. XI. THE (LIMITED) OBLIGATION TO ENCOURAGE ORGANIZATIONAL REFORM Even when, through no fault of their own, leaders lack the authority or power to correct structural or personnel defects, they are obligated to try to convince those who are in a position to make the needed changes to do so. For example, if the leader of military or civil service organization sincerely believes that the organization cannot function well unless certain personnel are replaced, and if changes in the operating rules or entrenched practices of the organization are needed in order to achieve this, then the leader ought to go on record as urging that these changes be made. Therefore, it would be a grave mistake to assume that leaders ought simply to acquiesce in what they believe to be flawed arrangements without making a good faith effort to encourage reform. Just how extensive the obligation to encourage reform is--and in particular, how much personal or professional cost an individual can be reasonably expected to bear in the face of opposition to reform--is a different question and one that will be addressed below. XII. DIFFICULTY IN DETERMINING THE LOCUS OF CONTROL AND HENCE OF RESPONSIBILITY In extremely complex organizations, and especially in organizations where the lines of authority and responsibility are unclear, it may be difficult to determine, in particular cases, whether the leadership has the needed authority and power, and hence whether judgments of culpability are well-founded or not. When there are gaps in information about the nature of the organization, as there usually are when an attempt is made to evaluate the performance of organizational leaders in the past, it may be very difficult to know whether those leaders are culpable for the failure of the organization to function well. 11 For example, if an official policy of an organization was promulgated but not implemented, it may not be possible to judge that the leader of an organization is culpable for a failure to take reasonable steps to ensure its implementation. There may simply not be sufficient evidence to show that the failure of implementation was something the highest official in the organization could have avoided. For instance, there might have been structural defects in the institution that limited his control over key subordinates whose cooperation was necessary for successful implementation of the policy. So if there are serious doubts about whether he had the power or authority to ensure the policy's implementation, the most it may be possible to say may be that there was a failure in the organization, or, perhaps, that the leadership of the organization failed to fulfill their obligations concerning the implementation of policies, without it being possible to fix blame specifically upon any particular individual in the leadership. Difficult issues arise, however, concerning where the burden of evidence lies in making judgments of individual, as opposed to collective culpability for failures to implement policies. Given that those in the highest positions of leadership have an obligation to ensure that policies are effectively implemented (and by legitimate and efficient means), what should count as adequate evidence for a judgment that the head of an organization is culpable in the failure to implement a policy? First of all, it is crucial to re-emphasize that the leader is responsible only for taking reasonable steps to ensure the effective implementation of the policy. Strictly speaking, he is not obligated to guarantee that the policy is effectively implemented. Factors beyond his control may thwart even the most conscientious efforts to ensure effective implementation. The key question, then, is whether, in the absence of evidence that the leader did take reasonable steps to ensure effective implementation, a failure to implement can serve as the basis for a judgment that the leader is culpable. In other words, does the failure to implement itself constitute a presumption of culpability on the part of those who had ultimate responsibility for taking reasonable steps to implement--a presumption that can only be overcome by the presence of evidence of serious attempts to ensure effective implementation? (Such evidence might include directives to department heads to prepare procedures for implementation, the promulgation of time-tables for stages of implementation, etc.). 12 Alternatively, does the burden of evidence lie on the other side? In order to judge that a leader is culpable for a failure of effective implementation of a policy, is it necessary to show that he did not take reasonable steps to ensure effective implementation? The failure to implement the policy for experimentation on human subjects set forth in the Wilson memorandum (Department of Defense, 1954) provides a concrete case in which the issue of where the burden of evidence lies is critical for the assignment of individual culpability on the part of the leader of an organization. Mr. Charles Wilson, the Director of the Department of Defense, issued a written statement directing that radiation experiments on human beings only be conducted if the subjects consent. After the memo was issued, it appears that experiments were conducted in which consent was not obtained. If this is an accurate description of the facts, then there is a presumption that there was a failure at least within the Department of Defense to take reasonable steps to ensure that the policy on experimentation was implemented. Can we conclude from the fact that there was a failure of implementation that Charles Wilson, who was the highest authority in the Department of Defense at the time, was culpable for this failure? Or should we only conclude that the Department of Defense (as a collectivity) was culpable and refrain from ascribing individual culpability to Mr. Wilson on the grounds that we do not have evidence to show that he took no reasonable steps to ensure implementation of the policy? There is a basis for ascribing culpability to Mr. Wilson if one further assumption is granted, namely, that the obligation to take reasonable steps to ensure effective compliance includes the obligation to document the fact that reasonable steps were taken. For example, if Mr. Wilson followed up the promulgation of the original memo with directives to agency directors to draft and submit procedures for implementing the policy, then we may reasonably expect that he would have arranged to have copies of these directives on record, and we would also expect some documentation to indicate that the proposed procedures were examined and approved or that requests were made to agency directors to modify the proposed procedures in the light of criticisms or suggestions from Wilson or from some one he appointed to oversee the proposals for procedures. In the absence of any evidence of these or other reasonable efforts to ensure effective compliance--and barring any special explanation of why such documentation may have existed but is not now recoverable--it seems reasonable to conclude that Wilson was culpable for a failure to take reasonable steps to ensure effective implementation of the policy he promulgated. To summarize: In order to fulfill the obligation to take reasonable steps to ensure effective implementation of policies they formulate, leaders ought to create conditions of accountability for implementation. This requires documentation of efforts to ensure 13 effective compliance. If such evidence is lacking and if there is no specific reason to believe that such documentation was destroyed or removed through no fault of the leader, then the absence of any evidence of efforts at implementation, along with the failure of implementation itself, is sufficient to ground a judgment that the leader was culpable. The alternative is clearly unacceptable. Adequate accountability within organizations could not be achieved if we proceeded on the presumption that whenever a leader of the organization formulated a policy he took reasonable steps to ensure effective compliance with it. To insist on positive proof that he did not take such steps not only locates the burden of evidence in the wrong place but also threatens to overlook the fact that leaders have two distinct obligations regarding policy: to formulate adequate policies and to take reasonable steps for their effective implementation. Since documentation of efforts to ensure effective implementation is necessary for achieving accountability for effective implementation, it is quite reasonable to expect such documentation to be present. Absent some special circumstance, we should expect that if documentation of the policy itself is recoverable, some evidence of efforts to ensure its documentation should also be recoverable. XIII. EXTRA-ORGANIZATIONAL (ROLE-INDEPENDENT) OBLIGATIONS OF BOTH SUPERIORS AND SUBORDINATES--THE MORAL FOUNDATION FOR "WHISTLE-BLOWING It is a widely accepted principle of secular and religious ethics in our society that individuals have not only a right to refuse immoral orders, but an obligation to do so, at least where a serious immorality is involved. This principle of conscientious refusal is a direct implication of the fundamental principle of common sense morality noted at the outset of our analysis, the principle of the inescapability of individual moral judgment. This is simply the idea, as we saw, that there are some moral obligations so basic that one's role-specific, organizational obligations cannot override them, and hence that one can never rightly abdicate one's basic role as a moral agent--as an individual who is ultimately responsible for his own conduct. It is this idea that underlies the belief that there can be not only permissible but obligatory instances of "whistle-blowing." 14 XIV. THE RIGHTS AND RESPONSIBILITIES OF WHISTLE-BLOWERS As noted above, both superiors and subordinates have an obligation to engage in constructive criticism. This obligation is in part derived from the general obligation to further the goals of the organization. It also rests, however, on an independent basis: moral principles and values that may be distinct from the goals of the organization and which are expressed in the obligation to further those goals only by legitimate methods. The obligation to engage in constructive criticism includes an obligation to attempt to correct defective policy or inappropriate implementation of policy by going through "regular channels" within the organization. However, if such an approach fails, and if the moral stakes are high, another obligation comes into play, what may be called the obligation of conscientious dissent and refusal. In some cases, even refusal to cooperate in an evil may be morally insufficient: a person of good moral character will recognize that he or she ought to "go outside regular channels" and blow the whistle. Nevertheless, it is neither permissible nor obligatory for an individual in an organization (that meets the minimal standard of having legitimate purposes and functions) to blow the whistle unless reasonable attempts to avoid the evil by going through regular channels have failed. Furthermore, and just as importantly, even when it is morally necessary to blow the whistle, there are important moral constraints that bear on the question of how the individual show go about blowing the whistle. One important constraint is this: In exposing the evil, the whistle-blower should attempt to minimize harm to innocent persons both within and outside the organization. XV. LEGITIMATE SELF-INTEREST AND THE LIMITS OF ORGANIZATIONAL OBLIGATIONS On first impression, the preceding list of obligations of persons in bureaucratic organizations may seem over-demanding or excessively idealistic. This may seem especially true of the obligation to criticize or dissent. There are two sources of concern. First, if bureaucrats generally, and especially persons in positions of higher authority, are held to excessively demanding standards, qualified persons will be discouraged from seeking such positions. Second, here, as in other areas of morality, it is important to recognize that individuals have legitimate interests of their own and that they should not be expected, at least under any but the most exceptional circumstances, to sacrifice the most basic of those legitimate interests for the sake of achieving organizational goals. 15 This second concern in turn has at least three sources. First, it is simply unfair to hold people to such a demanding standard of duty that they must forgo the pursuit of the most basic legitimate interests that human beings have--the physical and financial security of themselves and their loved ones, and the opportunity to have sources of satisfaction and fulfillment outside the workplace being among the most important of these. Second, quite apart from the unfairness of it, expecting individuals to conform to an excessively demanding standard of duty can be counterproductive--it may encourage cynicism and duplicity, leading individuals to be more concerned about feigning performance than about doing what they can reasonably be expected to do. Third, once there is the general perception that the demands the organization places on individuals are highly unrealistic, all may conclude that less than this is all they ought to do, but there may be disagreement as to how much is enough. The resulting indeterminacy as to what individuals, real, as opposed to official, obligations are can result in a serious lack of coordination. To summarize: all of the forgoing obligations, of both superiors and subordinates, are to be understood as limited by not one, but by two broad types of considerations. The first, which we have already emphasized above, is that the principle of the inescapability of individual responsibility bars anyone, whether he be a subordinate or a superior, from justifying or excusing immoral or illegal behavior simply by appealing to the fact that he was "following orders" or fulfilling his role-defined obligations. Second, the fact that bureaucrats, like other people, have legitimate interests of their own, also places a limit on their organizational obligations. For example, although a member of a bureaucratic organization has an obligation to engage in constructive criticism when he believes that an extremely ill-advised course of action has been undertaken, it does not follow from this that he is obligated to persist in criticizing his superior to the point of being fired or severely penalized. In general the strength of one's obligation will vary with the seriousness of the harm one seeks to avert, but the magnitude of the harm to oneself--and one's loved one's--is also relevant. It is important to stress that the costs of dissent within bureaucratic organizations are not fixed--they will vary, depending upon the strategy of dissent which is employed, and in particular, upon whether dissent issues from many voices or only one. In some cases a dissenting subordinate may be able to enlist the aid of 16 others in the organization and not only increase the effectiveness of his criticism or dissent, but also make himself less vulnerable to being penalized. In other words, the expected cost to each individual in a group that challenges a superior's policy decision may be considerably lower than the expected cost to an individual acting in isolation. If, by cooperating with others to challenge an order or a policy, an individual can avoid excessive personal costs, then the fact that the costs to him would be excessive were he to act alone provides ] no excuse for not acting. XVI. SUMMARY Both for the purpose of attempting to evaluate past actions (if evidence permits) and to formulate suggestions for avoiding future abuses in bureaucratic organizations, it is important to emphasize that 1. the role-derived obligations of individuals in bureaucratic organizations are not absolute--that such individuals cannot escape the burden of individual moral judgment, the necessity of evaluating policies and actions within the organization as well as the policy goals of the organization, from the perspective of external moral standards; and that 2. all individuals in the organization, but especially those at the top of the structure of authority, have an obligation to help ensure that accountability is achieved and that the effectiveness of organizational policies and procedures can be accurately evaluated. On the part of superiors, this second principle (2) has definite and important implications. In particular, it implies that formulating sound policy is not enough; it is also necessary to take steps to ensure that it is implemented effectively, and using efficient and legitimate methods. Since good documentation is essential to effective policy implementation, superiors have an obligation not only to formulate policy but to ensure that efforts at implementation are properly documented so that they can be evaluated and improved. Thus even if it is true that the very nature of bureaucratic organizations makes the accurate imputation of responsibility (and hence of culpability) difficult, superiors have an obligation to mitigate this problem by making lines of authority and assignments of role-responsibilities clear and by promoting an organizational culture 17 of both individual and collective responsibility. Indeed, one of the key factors that shapes the nature of bureaucratic ethics is the need to counteract the inherent moral risks of bureaucracies, chief among which is the tendency to undermine the conditions of accountability by making it difficult to ascribe responsibility for outcomes. For this reason, the statement that the internal conditions of an organization (such as the Department of Defense) make an accurate evaluation of whether a policy on experimentation was implemented impossible is itself an indication of a defect in the organization. Hence in its prospective recommendations the Committee should make it clear that the leadership of bureaucratic organizations have an obligation to ensure that the structures and procedures necessary for determining accountability for success or failure in formulating and implementing policies are created within their organizations. This amounts to an obligation to create conditions under which assignments of individual culpability, not just collective culpability, can be responsibly made. Given the importance of documentation in the implementation of policy, in cases in which documentation of policy is available, but documentation of efforts to implement policy is lacking, the presumption should be that the leadership has failed in its obligation to document. This presumption should be rebutted only if there is evidence to explain why documentation of policy should have survived in the historical record, but documentation of implementation should not. Finally, the inherent tendency of bureaucratic organizations to undermine the possibility of accountability by setting up obstacles to the ascription of responsibility for outcomes is not a recent discovery. In any society in which bureaucratic organizations play an important role, the problem of fixing responsibility for outcomes of bureaucratic activity have been widely appreciated. Consequently, there is nothing anachronistic about attributing the obligation to strive to establish conditions of accountability to leaders of bureaucratic organizations in the past. It is just as appropriate to expect individuals bureaucracies to have developed and conscientiously implemented patterns of behavior designed to combat the inherent flaws of that type of organization as it is to expect the medical profession to develop codes of ethics to counteract certain moral risks that are inherent in the physician-patient relationship. In both cases, omitting to take serious measures to counteract obvious moral risks inherent in the nature of an organization or activity is itself culpable. 18 INDEX I. Moral Judgements Concerning Bueraucratic Organizations and the Persons Working Within Them .....1 II. Role-Derived Ethical Obligations ......................2 III. Role-Derived Ethical Obligations Are Not Absolute; A Person Does Not Divest Himself of Moral Responsibility, Does Not Check His Conscience At The Door, In Taking On An Organizational Role..........2 IV. Three Bases for Role-Derived (Organizational) Obligations ...........................................3 A. Obligations Derived from the Goals of the Organization ......................................4 B. Obligations Imposed by Orders from Superiors or by Collective Decisions Within the Organization ...4 C. Obligations Derived from the Characteristics of Well-Functioning Bueraucratic Organization ........5 V. Different Roles Carry Different Obligations............5 A. Obligations of Superiors ..........................5 B. Obligations of Subordinates .......................6 VI. Deriving the Characteristics of Well-Functioning Organizations: The Method of Negative Example .........7 VII. The Corrective Function of Bureaucratic Ethics ........7 VIII. Creating Conditions for Accountability and for the Evaluation and Progressive Revision of Policies and Procedures for their Implementation --the Role of Documentation..........................................9 IX. The Correlativity of Control and Responsibility ......10 X. Culpable Verus Nonculpable Inability of Remedy Organizational Defects................................10 XI. The (Limited) Obligation to Encourage Organizational Reform................................................11 XII. Difficulty in Determining te Locus of Control and Hence of Responsibility ..............................11 XIII. Extra-Organizational (Role-Independent) Obligations of Both Superiors and Subordinates--The Moral Foundation for "Whistle-Blowing".................................14 XIV. The Rights and Responsibilities of Whistle-Blowers....15 XV. Legitimate Sel-Interest and the Limits of Organizational Obligations............................15 XVI. Summary...............................................17 19