“Necessarily Done In Secret”:
The Ethics of Privileged Communications and Confidentiality in Wartime
Charlotte E. Hunter
CDR, CHC, USN
703-695-8522
War-time conditions and anticipation of armed conflict inspire efforts on the part of government and military officials to obtain and use information, from all possible sources, that might somehow prove beneficial to our nation’s cause. Denial of what is presumed to be potentially useful information provokes protests and even outrage from officials and civilian sources alike, even when legal and ethical arguments exist that would seem powerful protections of private information.
1. The Panoptical Total Institution
The United States Navy exists as a sociological total institution that requires a continual flow of personal and professional information regarding its members to function smoothly, maintain good order and discipline, and fulfill its military mission. The intrusions of the total institution begin as soon as a man or woman begins to fill in the paperwork necessary to enlist in the Navy, and the intrusions do not cease throughout that person’s military career. According to retired Deputy Chief of Chaplains Richard Hutcheson,
All military persons, both enlisted and officer, move repeatedly into and out of various degrees of institutional totality, as they rotate from ship duty to shore duty, from deployment to home port, from operational divisions to garrison duty, from isolated overseas bases to administrative assignments. But the desired effect of the system is to create an overall psychological total institution that embraces the whole career. (Hutcheson, 47)
The totality in which a sailor or Marine exists is arguably greatest during basic training, when—in effect—a new person is fashioned to the purposes of the institution. In subsequent assignments, however, particularly during the first few tours of one’s military career, the level of totality can remain quite high as, for example, on board a ship, in infantry training regiments, operational air squadrons, and so on, units where one’s liberty is severely restricted and the bureaucratic demands high.
Since Chaplain Hutcheson wrote about the military as a total institution in 1976 the degrees of totality, in terms of information required of all service personnel, have risen. And the abilities of the institution to obtain information have become increasingly sophisticated. Recent military initiatives circumscribe or erode the privacy of those serving in the Sea Services, with no recourse offered to dissenting personnel other than discharge or prosecution under military law. Two examples follow, although more could be listed. In 1996, for example, all military members were ordered to provide DNA samples for inclusion in their medical records; use of these samples, stated the Secretary of Defense (SECDEF), would be restricted to identification of remains which, given the difficulties presented by the large numbers of unidentified casualties in WW2, Korea, and Vietnam, seemed to many, if not most, a sensible plan. Some initial resistance was recorded among small numbers of Navy and Marine personnel, but repeated assurances by the U.S. Navy Bureau of Medicine and SECDEF about the restricted use of the DNA data allayed most serious concerns. In November 2002, however, the Defense Department announced that these involuntarily collected DNA samples would, in fact, be shared with civilian police authorities as part of investigations into alleged criminal cases involving service personnel.
Fall of 2002 also saw the announcement of a new initiative within the Department of Defense named Total Information Awareness (TIA). The TIA program proposes the creation of a computerized profile of the intimate details of a citizen's private life. New York Times columnist William Safire noted the intrusive possibilities of the TIA program in a recent column, in which he wrote:
Every purchase you make with a credit card, every magazine subscription you buy and medical prescription you fill, every Web site you visit and e-mail you send or receive, every academic grade you receive, every bank deposit you make, every trip you book and every event you attend — all these transactions and communications will go into what the Defense Department describes as "a virtual, centralized grand database.”
John Markoff, also of the New York Times, described the TIA program the same month:
Historically, military and
intelligence agencies have not been permitted to spy on Americans without
extraordinary legal authorization. But Admiral Poindexter, the former national
security adviser in the Reagan administration, has argued that the government
needs broad new powers to process, store and mine billions of minute details of
electronic life in the
These initiatives, along with others, illustrate an interesting tendency toward the realization of Jeremy Bentham’s idealized prison, the Panopticon, in which no one could be alone, could exist unobserved, could easily have a secret other than simply by never saying anything. The current panoptical tendencies of the government, to include the Department of Defense and its component members, seem at times to be coupled with what can only be called a muscular sense of ethics. While no one should be in any doubt that these initiatives have been undertaken with the thought of doing good—whether identifying the remains of fighting men and women or rooting out potential or actual terrorists in our midst—these efforts present the thoughtful person with many ethical questions. The defense institutions seem increasingly to view successful mission completion as heavily reliant on ever-increasing amounts of information, including easily accessible information about their own members, their actions, and their words.
It is in this institutional setting that a small island of privacy exists in the form and ministries of chaplains. At the same time the Navy and Marine Corps (and the other services) insist on as much information as possible, legal and theological provisions exist that allow critical information about these same members to be withheld from all other members by its chaplains, whose pastoral action-in-silence paradoxically increases, I would argue, the functionality of the institution and, ultimately, assists in the accomplishment of the Navy’s military mission.
2. Navy Chaplains
By reason of deployments, high-tempo operations, remote assignments, and long duty hours, members of the U.S. Navy, U.S. Marine Corps, and U.S. Coast Guard often lack access to civilian pastors, priests, rabbis, and imams of their own faith group. The Navy chaplain must perforce serve as spiritual leader and religious facilitator for all these military members and, oftentimes, their family members. Regardless of his or her faith group the chaplain works to meet the needs—at the very least works to provide a means of meeting the needs—of Roman Catholics, Presbyterians, Jews, Christian Scientists, Latter Day Saints, Wiccans, Buddhists, Satanists, Muslims, and all the other hundreds of religious traditions represented within Sea Service ranks. In this unique role the chaplain becomes the focus of all the expectations, often hazy and little understood, of military members regarding clergy confidentiality and privileged communications. These expectations become entangled with the chaplain’s own expectations and beliefs, not only regarding matters religious or spiritual, but those of the chaplain’s non-clerical role as staff officer, an agent of the command.
The dual roles of the chaplain require brief explication. The chaplain is wholly clergy, owing allegiance to a denomination and its rules and standards. The chaplain is also wholly officer, owing allegiance to a non-religious institution that pays his or her salary, prescribes the uniform, dictates regulations, and assigns duties. The two roles often have very different responsibilities and goals, and are dominated respectively by two different ethical outlooks, the military being more utilitarian—more goal oriented—and the chaplains (in their clergy role) more deontological—focused on duty, these based principally on religious principles. All of these responsibilities and goals must be satisfied, and the potential for conflict is ever present.
Most chaplains learn to switch from their staff to clerical roles quickly and effectively as these roles shift from moment to moment. They may, for example, conduct a thorough inspection of a workspace, ordering subordinates to carry out one task or another, then turn around to find a distressed sailor or Marine standing by with something he or she needs to share with the chaplain in private. The professional identity and responsibilities of chaplains are thus bifurcated, a situation that must be accepted and managed in a way that violates neither the chaplain’s denominational allegiance nor the chaplain’s military oath of office. That misunderstandings and privilege arise is perhaps inevitable.
3. The UCMJ, Chaplains, and Privileged Communications
Chaplains and all other military members operate under a unique legal framework that figures powerfully in any discussion of this subject and thus deserves at least some explication. Military justice and law are governed by the Uniform Code of Military Justice (UCMJ), which came into standardized being in 1947. The Manual for Courts Martial (MCM) contains the body of statutes that comprises the UCMJ. And within the MCM, Rule 503 states the general rule of privileged communications with regard to chaplains:
A person has a privilege to refuse to
disclose and to prevent another from disclosing a confidential communication by
the person to a clergyman or to a clergyman’s assistant, if such communication
is made either as a formal act of religion or as a matter of conscience. (MCM)
Communications made to military doctors, lawyers, social workers, and psychotherapists, also outlined in the MCM, are privileged only to very limited degrees; in fact, communications made to military doctors and other medical personnel are not privileged except in very, very rare circumstances, and the psychotherapist/social worker privilege is rife with exceptions. Communications made to a chaplain, however, are absolutely privileged. In this regard the MCM affords military confessants far greater protection than does any current state statutes. Most state statutes, for example, closely define what comprises a privileged communication made to clergy; the MCM extends the privilege to all communications made to chaplains (and their assistants) in their official capacity when the desire for secrecy is clear or presumed. Moreover the MCM avoids the usually narrow state interpretations regarding the nature of the discipline of confession; a military member may claim the privilege whether his or her denomination recognizes formal confession as a sacrament, an ordinance, or as being of a voluntary nature. Most importantly, the MCM declares the intention of the parties to that privileged communication the deciding factor, rather than the actual circumstances in which the communication takes place. On a ship, where quarters are cramped and private spaces can be few and far between, or in crowded battalion or company offices, or in the field, a truly private conversation becomes a rarity. The MCM recognizes the privileged nature of conversations between chaplains and confessants regardless of the privacy or lack thereof that may exist at the time of the conversation the chaplain is bound to silence in face of the sailor or Marine’s right to privilege. Conversations need not address strictly religious or spiritual matters to be regarded as privileged, rather:
…the courts look to the circumstances of the communication, including the penitential character of the communication, the necessity that the communication be made to the clergyman in his professional character, and indications that the communication be intended as confidential. (MCM)
The sparse case law concerning chaplains and privileged communication testify to the fact that the obligations upon chaplains regarding the safeguarding of secrets and the necessity to help sailors and Marines help themselves work themselves out effectively and without controversy. But not always. And the obligations regarding privilege—indeed the concept of privilege—become more fraught with tension in times of war.
4. Silence in War Time
To whom does the MCM apply? Active-duty and reserve sea-service personnel? Yes. Retired sea-service personnel? Yes. Their families? No. Prisoners of war? Perhaps. Military detainees or enemy combatants? The courts have not spoken on this particularly, but recent rulings would seem to indicate that even those detainees or enemy combatants held in military camps or brigs do not fall under either the restrictions or protections of the UCMJ. So what happens to those who talk to chaplains?
One might think the answer is easy: the MCM doesn’t apply, so the chaplain is under no obligation to keep secret anything said to them by these people. Here the dual roles of the chaplain rises to the fore and demands otherwise because, as mentioned earlier, chaplains are as bound to the demands of their denominations as they are to the rules of the military. And, with few exceptions, most denominations adhere to strict principles regarding the need of their religious representatives to maintain strict confidentiality about information shared with the chaplain. In addition, chaplains themselves have over the two centuries they have served in the Sea Services come to view confidentiality as one of their most precious pastoral tools because they have seen the often enormous benefits that can be attained by protecting the secrets of service personnel. In peace and war, dealing with little secrets or big, chaplains are loathe to retreat from their commitment to protecting the privacy of any and all confessants.
A case in
point: In January 2002 a Navy chaplain
was sent to
Some of you may well have read the various news articles that were written about this chaplain. Over and over again he was asked, “What would you do if you were told about a hidden gun, or knife, or some even bigger secret that might affect national interests?” And he responded that he, like all Navy chaplains, was trained to find ways to protect the privacy of a confessant while at the same time encouraging this man to reveal his secret to the authorities. The principle of trust reigned supreme, yet the utilitarian desire to achieve the greatest good for the greatest number—in this case the goal of serving the cause of fighting terrorism—was given a means of operating as well. At Camp X-Ray and, subsequently and continuing to the present, in the brigs at Norfolk and Charleston—where two detainees are held, respectively—he and the Charleston brig chaplain have listened and kept their counsel. I wish I could share the details of some of what has occurred; alas, I cannot go into the specifics due to constraints imposed by the Navy JAG.
Should they do so?
5. Silence and Risk Management
Navy chaplains juggle the conflicting responsibilities of their silence, but the balls are not always easy to keep going, nor is the juggle always smooth. As much as the next person chaplains are well aware that things told to them sometimes hold traumatic potential for the confessant, perhaps innocent third parties, or even the military mission of which they or the confessant are a part. And all are aware that, to those in command and indeed to most people, the idea that secrets are kept is, if not anathema, problematic, particularly if those secrets involve issues such as criminal activity or threats to national security. Better, some critics say, were chaplains to restrict those things they agree to keep secret, bowing to commonsense demands in favor of a truncated privilege.
One must ask two questions: (1) Is there in silence and the protection of a confessant’s privacy a duty that must be honored? And (2) does there exist in that absolute silence a utilitarian benefit that does indeed benefit the greatest number.
Privacy is something we value to provide an arena within which we can be free from interference by others. It can, of course, function negatively, as the cloak under which one can hide domination, degradation, or physical harm to others, but privacy provides a necessary context for love, friendship and—most importantly for the context of this paper—trust. This infers a moral conception of people and rests on a Kantian notion of basic personal rights and the need to define and pursue one's own values free from the impingement of others.
Privacy and its safekeeping, therefore, is a duty that for chaplains becomes a moral mandate so that the confessant can first, maintain or develop a spiritual relationship that (one hopes) possesses a healing quality. Second, the safekeeping of privacy enables chaplains to develop a reputation for trustworthiness, developing relationships of trust that can and do—far more often than anyone here (other than another chaplain) may realize—result in confessants accepting the counsel of chaplains to self-disclose whatever may be troubling that penitent’s thought. Thus, preservation of privacy in an absolute sense is an interest with moral value that can and does result in benefit to the confessant, the command, and the military mission. A sailor who voluntarily reveals a plan to hurt himself or others, a Marine who voluntarily abandons plans to commit some criminal act and ask for help from available, or an enemy combatant who offers up weapons, names, or plans will normally only do so if brought to the belief that self-revelation is the right path. And, I would argue, given the frightening nature of some secrets, that sort of belief will only occur in a climate of absolute trust, trust that nothing revealed will be stolen. And that trust cannot, should not, be confined only within the narrow confines of those specifically protected by the UCMJ, but rather all those to whom a chaplain may be called to minister.
The fears of war, with its potential for extreme horrors—which, sadly, we saw at least twice fulfilled just over a year ago—may prompt us all to consider constraints upon privacy. We may feel that the protection of our families, our colleagues, and our nation may lie in the elimination of secrets of all kinds, by means of extreme intrusions, regardless of the spiritual, psychological, and emotional costs to those who have secrets. I believe, however, that the protection of privacy and its secrets by chaplains is as necessary as any other form of risk management practiced within the military and is far more successful than is often considered, given the irony that we chaplains cannot reveal much about the many successes that we see.
The preservation of privacy within trust and the successful work done by chaplains in inspiring self-revelation by confessants is not a complex process. People talk with chaplains, trusting that what they say will always be kept secret. Chaplains listen. Chaplains counsel, using all the considerable skills at their disposal to aid this man or woman in the direction of self-determined, self-revelatory words or action that will most bless the counselee and bless others. Chaplains keep the secrets. Even when the secrets are distressing, chaplains keep the secrets. Even when pressure is brought to bear upon them by commanders, military lawyers, and general opinion, chaplains keep the secrets. Chaplains embrace the ethical dimension of honoring a person’s need for an arena of sanctuary in which to consider carefully, with guidance, the choices imposed by life’s circumstances. While I realize it is not unknown for an occasional chaplain to slip up in this regard, such occurrences are rare. More often than not, sailors, Marines, Coastguardsmen, detainees, and even enemy combatants who confide in chaplains find their way to beneficial resolution of whatever has preyed on their hearts and minds.
A simple, powerful, and effective process. It is sophisticated in its simplicity, invaluable in its virtuous effect on the lives of any confessant, principled in its protection of what is largely now considered by ethicists, psychologists, religious thinkers, and even many lawyers a basic right of all persons, friend and foe alike, and ultimately beneficial to military commanders as a unique safety valve. The proper working of this ethical and legal privilege can, does, and always will enhance mission fulfillment.
I can find no better way to finish than with the words of the late Admiral Chester W. Nimitz:
By his patient,
sympathetic labors with the men, day in, day out, and through many a night,
every chaplain I know contributed immeasurably to the moral courage of our
fighting men. None of this effort
appears in the statistics. Most of it
was necessarily secret between pastor and his confidant. It is for that toil in the cause of both God
and country that I honor the chaplain most.
References
Hutcheson, Richard J., Jr. (1975) The Churches and the Chaplaincy.
Manual for Courts
Martial, 2002 Ed. U. S.
Department of Defense,
Markoff, John. Pentagon Plans a Computer System That
Would Peek at Personal Data of Americans,
Safire, William. You Are a Suspect.
For other works focused on the ethical,
religious, and psychological benefits of privacy, the following readings are
offered.
Bok, Sissela. (1984) Secrets: On the Ethics of Concealment and Revelation. NewYork:
Vintage.
DeCew, J. (1997)
In Pursuit of Privacy: Law, Ethics, and
the Rise of Technology,
Fried, C. (1970)
An Anatomy of Values,
Kupfer, J. ‘Privacy, Autonomy and Self-Concept’, American Philosophical Quarterly 1987, 24: 81-89
Rachels, J., ‘Why Privacy is Important’, Philosophy and Public Affairs 1975, 4: 323-33
Tournier, Paul. (1965) Secrecy.