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Publisher: Routledge Informa Ltd Registered in England and Wales Registered Number: 1072954 Registered office: Mortimer House, 37-41 Mortimer Street, London W1T 3JH, UK Intelligence and National Security Publication details, including instructions for authors and subscription information: http://www.tandfonline.com/loi/fint20 What's the Harm? The Ethics of Intelligence Collection Ross Bellaby Available online: 24 Feb 2012 To cite this article: Ross Bellaby (2012): What's the Harm? The Ethics of Intelligence Collection, Intelligence and National Security, 27:1, 93-117 To link to this article: http://dx.doi.org/10.1080/02684527.2012.621600 PLEASE SCROLL DOWN FOR ARTICLE Full terms and conditions of use: http://www.tandfonline.com/page/terms-and- conditions This article may be used for research, teaching, and private study purposes. Any substantial or systematic reproduction, redistribution, reselling, loan, sub-licensing, systematic supply, or distribution in any form to anyone is expressly forbidden. The publisher does not give any warranty express or implied or make any representation that the contents will be complete or accurate or up to date. The accuracy of any instructions, formulae, and drug doses should be independently verified with primary sources. The publisher shall not be liable for any loss, actions, claims, proceedings, demand, or costs or damages whatsoever or howsoever caused arising directly or indirectly in connection with or arising out of the use of this material. Whats the Harm? The Ethics of Intelligence Collection ROSS BELLABY* ABSTRACT As the professional practice of intelligence collection adapts to the changing environment and new threats of the twenty-rst century, many academic experts and intelligence professionals call for a coherent ethical framework that outlines exactly when, by what means and to what ends intelligence is justied. Reports of abuse at detention centres such as Guantanamo Bay and Abu Ghraib, the ever increasing use of technological surveillance, and the increased attention on the use of torture for intelligence collection purposes have all highlighted a need to make an explicit statement about what is and what is not permissible intelligence practice. In this article an ethical framework will be established which will outline under what circumstances the use of different intelligence collection activities would be permissible. This ethical framework will rst underline what it is about intelligence collection that is harmful and, therefore, should be prohibited under normal circumstances. The ethical framework then outlines a set of just intelligence principles, based on the just war tradition, which delineate when the harm caused can be justied. As a result, this article outlines a systemic ethical framework that makes it possible to understand when intelligence collection is prohibited and when it is permissible. Introduction: Intelligence and Ethics As the professional practice of intelligence adapts to the changing environment and new threats of the twenty-rst century, many academic experts and intelligence professionals call for a coherent ethical framework that outlines exactly when, by what means and to what ends intelligence is justied. For Sir Michael Quinlan there is no area of human activity, whether public or private, that can claim an a priori entitlement to require the moralist to be silent, and intelligence should be no exception. 1 Indeed, reports of abuse at Guantanamo Bay and Abu Ghraib, allegations of extraordinary rendition programmes, and the ever-increasing pervasiveness of the surveillance state, have highlighted the need for a coherent, systematic review of the place currently occupied by ethics in intelligence. *Email: r.bellaby@shefeld.ac.uk 1 Michael Quinlan, Just Intelligence: Prolegomena to an Ethical Theory, Intelligence and National Security 22/1 (2007) pp.113 at p.2. Intelligence and National Security Vol. 27, No. 1, 93117, February 2012 ISSN 0268-4527 Print/ISSN 1743-9019 Online/12/010093-25 2012 Taylor & Francis http://dx.doi.org/10.1080/02684527.2012.621600 D o w n l o a d e d
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It is partially because of these controversies that a focus on ethical (and associated legal) issues is emerging in the eld of intelligence. 2 In recent years several specic cases have underlined the need for explicitness regarding what should be acceptable intelligence practice. Torture, for example, is an issue at the forefront of the debate regarding what standards should be expected from a state and its intelligence agencies. Inhumane treatment of Binyam Mohamed at Guantanamo Bay, in Pakistan and Morocco, and his claims that he was subject to a CIA-run extraordinary rendition programme have, for example, raised public outcry and forced the British government to announce a judge-led inquiry into how such activities were allowed to happen. 3 Furthermore, in American politics, the issue of torture and the legitimate treatment of terrorist suspects held centre stage for much of the Bush administration and casts a long shadow onto the Obama administration. 4 Concern has also arisen over the growing ability and tendency of intelligence and security services to intercept, monitor, and retain personal data in an increasingly computer-centred world. The 2009 UK House of Lords report, Surveillance: Citizens and the State, highlighted signicant anxiety regarding the possible threat surveillance practices have to individual privacy. The report sought to stress the need to review CCTV camera usage, internet trafc monitoring, DNA databases and wiretaps, questioning the role they should have in a western liberal society. 5 2 M. Andregg et al., A Symposium on Intelligence Ethics, Intelligence and National Security 24/3 (2009) pp.36585; T. Erskine, As Rays of Light to the Human Soul? Moral Agents and Intelligence Gathering in L.V. Scott and Peter D. Jackson (eds.) Understanding Intelligence in the Twenty-First Century: Journeys in Shadows (London: Routledge 2004) pp.195215 (and Intelligence and National Security 19/2 (2004) pp.35981); A. Gendron, Just War, Just Intelligence: An Ethical Framework for Foreign Espionage, International Journal of Intelligence and Counter-Intelligence 18/3 (2005) pp.398434; D. Omand, Reections on Secret Intelligence in Peter Hennessy (ed.) The New Protective State: Government, Intelligence and Terrorism (London: Continuum 2007); T.R. Pfaff and J.R. Tiel, The Ethics of Espionage, Journal of Military Ethics 3/1 (2004) pp.115; Quinlan, Just Intelligence, pp.113. 3 Intelligence and Security Committee, Rendition chaired by Rt. Hon. Paul Murphy (July 2007) cm.7171 p.33, 5http://www.fas.org/irp/world/uk/rendition.pdf4. Also see S. Grey, Ghost Plane: The True Story of the CIA Torture Program (New York: St. Martins Press 2006) p.53. 4 See K. Anderson What to do with Bin Laden and Al Qaeda Terrorists?: A Qualied Defence of Military Commissions and United States Policy on Detainees at Guantanamo Bay Naval Base, Harvard Journal of Law and Public Policy 25/2 (2001) pp.591635; J.S. Clover Remember, Were the Good Guys: The Classication and Trial of the Guantanamo Detainees, South Texas Law Review 45/1 (2003) pp.35195; A. Dershowitz, Why Terrorism Works: Understanding the Threat, Responding to the Challenge (London: Yale University Press 2002). 5 House of Lords: Select Committee on the Constitution, Surveillance: Citizens and the State 2nd Report of Session 200809 (February 2009) x70, 84, pp.202. Also see Sir Christopher Rose, Chief Surveillance Commissioner Report on Two Visits by Sadiq Khan MP to Babar 94 Intelligence and National Security D o w n l o a d e d
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Subsequently, it is no longer deemed viable for intelligence communities to maintain their shadowy existence, free to act out of sight and out of mind. The Council of Europes Parliamentary Assembly has, for example, expressed dissatisfaction with the current standards and mechanisms applied to intelligence practices. It has called for the drafting of a European code of intelligence ethics and to subject intelligence agencies to codes of conduct, accompanied by robust and thorough supervision. 6 If liberal democracies are to be seen abiding by the rules, norms and ideals to which they subscribe, then so must their intelligence communities. However, while there is clearly a need for an explicit statement on acceptable and unacceptable behaviour from intelligence agencies, what is less clear is what an appropriate ethical framework should look like. At the centre of the topic of intelligence ethics, often ridiculed as oxymoronic, 7 is the tension between the belief that there are aspects of the intelligence business, as practised by all major countries, that seem notably disreputable, 8 and the argument that without secret intelligence we will not understand sufciently the nature of some important threats that face us; 9 that political communities have an ethical obligation to act so as to protect its people. Princes are obliged by the law of nature, in the formulation of Thomas Hobbes, to make every effort to secure the citizens safety . . . they may not do otherwise. 10 As a result, intelligence communities face a tension created by, on the one hand, the duty to protect the political community and, on the other hand, the reality that intelligence collection may entail activities that negatively affect individuals. The aim of this article is, therefore, to deal with this tension by establishing a two-part ethical framework that outlines those parts of intelligence collection that might be considered ethically Ahmad at HM Prison Woodhill, presented to Parliament by the Secretary of State for the Home Department (February 2008), Cmnd.7336. 6 Parliamentary Assembly of the Council of Europe, Democratic Oversight of the Security Sector in Member States, Recommendation 1713 (Strasbourg, 23 June 2005); Parliamentary Assembly of the Council of Europe, Committee on Legal Affairs, Secret Detentions and Illegal Transfers of Detainees by Council of Europe Member States Doc.11302 (Strasbourg 11 June 2007). 7 D. Claridge, quoted in Quinlan, Just Intelligence, p.1; J.M. Jones, Is Ethical Intelligence a Contradiction in Terms? in J. Goldman (ed.) Ethics of Spying: A Reader for the Intelligence Professional Volume 2 (Plymouth: Scarecrow Press 2010) p.21. 8 Quinlan, Just Intelligence, p.1. 9 D. Omand, Reections on Secret Intelligence, p.116. 10 Thomas Hobbes, De Cive [On the Citizen], ed. and trans. by Richard Tuck and Michael Silverthorne (Cambridge: Cambridge University Press 1998) p.19. There are two main ethical arguments for this position. The rst argument is based on the ontological justications for wars of self-defence drawn from the domestic analogy whereby the ethical argument for the individual defending himself is extrapolated up onto the state. The second moral argument is based on the argument that allows one to justify courses of action with reference to the good of the political community and maintains that acting in the national interest is itself complying with a moral principle. Erskine, Rays of Light, p.364. The Ethics of Intelligence Collection 95 D o w n l o a d e d
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unacceptable while incorporating the pivotal role intelligence plays in protecting the political community. The rst part of the ethical framework will argue that the reason why intelligence collection might be considered ethically unacceptable is because of the harm it can cause the individual. 11 By understanding this negative aspect of intelligence is it then possible to determine if and when intelligence collection is justiable. In order to achieve this, the second part of the ethical framework will argue for a set of just intelligence principles. These principles are a set of criteria based on the just war tradition that, by making reference to the principles of just cause, legitimate authority, right intention, last resort, proportionality and discrimination, then make it possible to outline the circumstances under which the harm caused is justied. Harm: Primum Non Nocere First, Do No Harm? The rst step in establishing an ethic against harm begins with the realization that individuals have certain requirements that are both vital to their well- being and vulnerable to external interference. 12 These vital interests are the prerequisites or preconditions that must be maintained if individuals are to full their ultimate goals and aspirations. Joel Feinberg calls these requirements welfare interests. 13 John Rawls calls them primary goods. 14 Essentially they amount to the same thing that is, regardless of what ones conception of the good life might be, these preconditions must be rst satised in order to achieve them. These interests include individuals physical and mental integrity, their autonomy, liberty, sense of self-worth and privacy. Without these vital interests any individual is unable to pursue other ultimate interests, purposes, goals or plans. 15 Of such fundamental importance are these interests to the individual that they have intrinsic value. Damaging them can therefore cause harm regardless of the repercussions. That is, even if on balance the individual does not experience the harm in a tangible and material way, s/he can still be said to be harmed if the vital interests are violated or wronged. 16 In this way, these interests are a persons most important ones and thus demand protection. 11 Intelligence collection is the main focus of this article but it is just a single part of a broader intelligence process. Other phases include planning and direction, process and exploita- tion, analysis, and production and dissemination. See Mark Lowenthal Intelligence: From Secrets to Policy (Washington, DC: CQ Press 2000) pp.4052. 12 J. Feinberg, Moral Limits of the Criminal Law: Vol.1 Harm to Others (Oxford: Oxford University Press 1984) p.37. 13 Ibid. 14 John Rawls, Theory of Justice (Cambridge, MA: Harvard University Press 1971) p.62. 15 The use of the terms plans, purposes, goals, aims and desires is designed to convey those general actions carried out by the individual that represent in which direction he wishes to take his life and his general pursuits of an individual, whatever or however he might broadly conceive of them. 16 Feinberg, Harm to Others, p.35. 96 Intelligence and National Security D o w n l o a d e d
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Albeit John Mackie urges a measure of scepticism about any idea of objective values or cross-cultural statements regarding what it means to harm someone and what values should or should not be respected as important to the individual, especially since their content will vary greatly depending on ones culture. Nevertheless it is still possible to outline those interests vital to all humans, irrespective of what conception of the good life they may hold. 17 Indeed, it is possible to isolate those factors of central importance in any human life, regardless of what end the person chooses to pursue. Martha Nussbaum argues that through a notion of overlapping consensuses it is possible to outline the core vital interests held by all individuals, identiable without accepting any particular metaphysical conception of the world, any particular comprehensive ethical or religious view, or even any particular view of the person or human nature. 18 Quite simply, an individuals core interests can be determined by isolating those aspects of the human condition whereby individuals would be unable to continue with their higher or more ultimate wants if they did not have these interests maintained. For example, being creatures of esh and bone instantly implies mortality, vulnerability. 19 This demonstrates the need to protect the physical body as one of our most important vital interests. Importantly, however, protecting the physical body is not all. The need for mental integrity, autonomy, liberty, a sense of self-worth and a degree of privacy are each vital in an individuals life. For instance, if the mental integrity is damaged then people no longer have the capacity to continue or experience their life in a truly human way; 20 if their autonomy is distorted or controlled then individuals are unable to formulate what they think their own life plan should be; if their liberty is restricted then they can no longer articulate plans; without a sense of self-worth they can become despondent and unwilling to continue with their plans; and nally if their privacy is unduly violated then the effect it can have for example, anxiety, distrust and the inability to freely express oneself freely can prevent them from acting out their life. Harm, therefore, can quite simply be dened as the violation of an individuals most vital interests. This concept of harm, however, is not a binary one whereby individuals exist in a state of un-harm and then are utterly destroyed when their vital interests are damaged. Rather, individuals 17 John Mackie, Ethics: Inventing Right and Wrong (London: Penguin 1977); Brian Barry, for example, observes that all societies have quite a limited range of punishments, such as the deprivation of money or property, physical connement, loss of body parts, pain and death, demonstrating that there are things all individuals wish to protect regardless of their personal view of the good life. Brian Barry, Justice as Impartiality (Oxford: Oxford University Press 1998) p.88. 18 Martha Nussbaum, Women and Human Development: The Capabilities Approach (Cambridge: Cambridge University Press 2000) pp.73, 76. 19 J. Butler, Precarious Lives: The Powers of Mourning and Violence (London: Verso 2004) pp.20, 26. 20 Nussbaum, Women and Human Development, p.72. The Ethics of Intelligence Collection 97 D o w n l o a d e d
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can have their vital interests affected, violated or damaged to varying degrees depending on the extent they are affected as the individual. Vital Interests The list below represents a set of moral principles designed to demonstrate those vital aspects of the human condition that can be agreed upon by people who might otherwise have very different views regarding how one should carry out ones life, and the aims one should have. Physical Integrity Maintaining the integrity of the physical body is among the most fundamental interests possessed by an individual. The body is the physical home and representation of the self. It is the chief means through which the human condition is experienced and then acted out. If the body is damaged it severely hinders the individuals ability to actualize any other aspect of the human experience. As such, there is, rst and foremost, an interest in protecting the body: virtually any conception of the good life goes better in the absence of physical injury. 21 In order to maintain this vital interest, the individual must be left to live life until its natural end; be adequately nourished and sheltered; be free from absorbing pain and disgurement; and nally, to have bodily boundaries respected as sovereign. In relation to intelligence collection, for example, one of the most important issues intelligence operatives must resolve is what sort of physical treatment potentially dangerous suspects can expect. The answer to this question is one that invariably revolves around the issue of pain and the conditions to which the suspect is subjected. Elaine Scarry calls pain the voice of the body, 22 a voice that is all-encompassing in its demand for attention. Pain can completely debilitate the body, making the individual unable to conceive of anything else and forces the body to deal with the cause of the pain immediately. The greater the physical pain the greater the debilitating effect. Irwin Goldstein notes that pain is one of those experiences which is self-evidently, indisputably, objectively bad; some people see it as essentially evil. 23 Even John Mackie, whose central thesis is that good and bad designate properties which do not and could not exist and thus that no object really is good or bad, grounds robust ontological assertions on the premise that evil exists and is ourishing in pain and other familiar phenomena. 24 Many types of physical attacks can violate this interest, including striking, cutting, amputating or severely damaging the physical body or actions such as stress positions designed to inict increasing levels of pain over a period of time. 21 Barry, Justice as Impartiality, p.88. 22 Elaine Scarry, The Body in Pain (New York: Oxford University Press 1985) p.45. 23 I. Goldstein, Pleasure and Pain: Unconditional, Intrinsic Value, Philosophy and Phenomenological Research 1/2 (1989) pp.25576 at p.257. 24 Ibid., p.255. 98 Intelligence and National Security D o w n l o a d e d
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Mental Integrity If the body is the physical representation of the self, then the psyche is the individuals metaphysical self, the place where the world is experienced and actualized. The psyche is responsible for faculty of reason or the sum of a persons intellectual capabilities, representing the immaterial and actuating part of life. To damage this place is to prevent the individual from experiencing, processing or interacting with the world as s/he normally would. Furthermore, much like physical pain, mental pain is harmful in and of itself. Having ones mental integrity blighted by overwhelming fear, anxiety, abuse or neglect is harmful because of the mental pain it causes, aside from any long-lasting psychological damage that may accompany it. Respecting the interest in mental integrity would therefore prevent any actions that can cause debilitating levels of stress or anxiety to the individual. Again, much like physical integrity, for intelligence collection the importance of this vital interest comes into play when discussing what conditions are suitable for interrogating a suspect. To what extent can a suspect be made to experience anxiety or fear as, for example, a means of encouraging him to cooperate. Furthermore, mental integrity becomes an important issue when discuss- ing other intelligence collection activities such as surveillance where the individual might become unduly paranoid or anxious about being followed. Autonomy The concept of autonomy is the capacity for self-rule. That is, one must be able to decide for oneself, without external manipulation or interference, what shape ones own life will take. As Nussbaum puts it: autonomy is being able to form a conception of the good and to engage in critical reection about the planning of ones life the protection of the liberty of conscience. 25 Maintaining the integrity of an individuals autonomy requires rst that the individuals rational functioning be protected, meaning that s/he has the capacity to plan, choose, and reect on options. 26 For example, drugging individuals violates their rational capability as it physically prevents them from forming a reasoned decision. Second, in order for individuals to be autonomous agents it requires that they be free to be self-directing in that their decision-making process should not be excessively inuenced or controlled by another force. Autonomy is circumvented if the decision-making process is overly distorted or pressure is applied to alter it. Autonomous agents must be able to act for reasons all 25 Nussbaum, Women and Human Development, p.79. Feinberg calls this the condition of self-government, and Richard Lindley refers to it as authorship and self-rule, but it is essentially referring to the same phenomenon. See J. Feinberg, The Idea of a Free Man in J. F. Doyle (ed.) Educational Judgments (London: Routledge 1973); R. Lindley, Autonomy (Basingstoke: Macmillan 1986). 26 H. Frankfurt, Freedom of the Will and the Concept of the Person, Journal of Philosophy 68/1 (1971) pp.520 at p.7. The Ethics of Intelligence Collection 99 D o w n l o a d e d
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the way down according to their actions and according to their reasons. 27 If an outside force puts pressure on an individuals decision-making process then the decisions made are not taken in light of the individuals own wishes or beliefs, but are based on that of the person applying the force. The pressure will alter the individuals decisions, forcing activities to be carried out or beliefs to be held that would not have been otherwise. The individual loses self-mastery, becoming a tool of the will of another. Acts of deception and manipulation, for example, are harmful inasmuch as they interfere with an individuals autonomy. Since lies are designed to eliminate or obscure relevant alternatives, 28 when people are the victim of a deception their view of reality is distorted and they are forced to act or hold beliefs based on this distorted view. The victim of the deception is basing his decisions on the wishes of the deceiver rather than his own will. Similarly, acts of manipulation violate an individuals autonomy in that they exert a pressure on the individuals decision-making process in order to encourage a certain response. As a result, the individuals actions or beliefs become the result of the manipulation rather than being the result of the individuals will. Liberty Closely connected to the concept of autonomy is the interest an individual has in liberty. Liberty, as Mill notes, is not the so-called Liberty of the Will . . . but Civil, or Social Liberty: the nature and limits of the power which can be exercised by society over the individual. 29 Whereas autonomy is the freedom to decide ones will, liberty is the freedom from constraints on acting out that will. As such, liberty is often simply dened as the absence of interference or control, 30 and to defend an individuals liberty is to set a limit on the extent of intervention by other individuals or society. For example, if I am prevented by others from doing what I could otherwise do, I am to that degree unfree. 31 An important issue for liberty and intelligence 27 B. Herman, The Practice of Moral Judgement (Harvard University Press 1996) p.228. 28 S. Bok, Lying: Moral Choice in Public and Private Life (New York: Vintage Books 1979) p.19. 29 John Stuart Mill, On Liberty, ed. John Gray (Oxford: Oxford University Press 1991) p.5. There is a distinction between social freedom (liberty) and freedom of will (autonomy) which is demonstrated with the following case: put a man in a cell and convince him that all the doors are locked, when in fact one is left unlocked. The man is in fact free to leave the room at any time and, therefore, his liberty is not restricted. But because he is not in possession of the full information he can not avail himself of this opportunity and therefore what he wishes to do is limited. Berlin points out that the question who governs me? is logically distinct from the question of how far does government interfere with me?. I. Berlin, Two Concepts of Liberty in Four Essays on Liberty (Oxford: Clarendon Press 1958), p.130. 30 Feinberg, The Idea of a Free Man, p.7. 31 Violation of liberty implies the deliberate interference with ones activities; inability to act is not to be unfree: the free man is the man who is not in irons, nor imprisoned in a gaol . . . it is not lack of freedom not to y like an eagle or swim like a whale. Berlin, Two Concepts of Liberty, p.122. 100 Intelligence and National Security D o w n l o a d e d
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collection is the question of when and for how long an individual can be stopped and detained. Often there is a ne balance between being able to collect information from an individual to understand the threat they pose and the interference this has on the liberty of the individual. Limits on the powers of authorities to stop and search an individual exist to prevent the violation of the individuals liberty. For example, when the UK government proposed an increase in the number of days suspected terrorists could be detained pre-charge to 42 in response to the 7 July 2005 London terrorist bombings, the ensuing debate in both the UK House of Lords and the Council of Europes Parliamentary Assembly was based on the need to protect the liberty of the individual. 32 Human Dignity as Amour-propre: A Sense of Ones Own Self-Worth Condence in ones self-worth is so fundamental that without it one can become unable to continue or realize endeavours that are needed to full ones aspirations. Without self-respect individuals feel worthless; nothing seems worth doing, activities become empty and vain and people sink into apathy and cynicism. 33 There are two dimensions to an individuals sense of self-worth; rst is how individuals view themselves and second is how others view them. The rst aspect is the result of the argument that one the most important and intimate relationships for anyone occurs every time you look in the mirror, where you are faced with your closest ally and your, potentially, greatest enemy. 34 When individuals experience shame or humiliation they are looking at themselves, judging themselves and nding themselves wanting. When humiliation is forced upon an individual by someone one else, s/he is forced to look at themselves through the eyes of this other, they judge themselves as those eyes would judge them and they then feel degraded in some way. 35 The second dimension to the individuals sense of self-worth is related to how individuals are viewed by those in their identity group. One of the most important aspects of an individuals sense of self-worth is the role played by external recognition. It is not just how we view ourselves that is important, 32 See the Parliamentary Assembly of the Council of Europe, Committee on Legal Affairs and Human Rights, Proposed 42-day Pre-charge Detention in the United Kingdom Doc.11725 (30 September 2008). 33 Damaging an individuals sense of self-worth was thus, for John Rawls, a violation of what perhaps is the most important primary good of all. Rawls, Theory of Justice, p.386. 34 J.P. Tangney and R.L. Dearing, Shame and Guilt (London: Guilford Press 2002) p.52. 35 Normally this involves making the individual look at himself through the eyes of an external spectator and to judge himself as that external spectator would do. To be sure, this external spectator does not have to exist physically but rather exists as a metaphor to represent the new position as compared with the previous unconscious state he thought or hoped or unthinkingly assumed he was in. This observer could be actual or imagined; self- or externally created; a particular individual, identity group or even a higher power; or quite simply a set of social constructs and norms which shape our interpersonal lives. G. Taylor, Pride, Shame and Guilt (Oxford: Clarendon Press 1985) p.66. The Ethics of Intelligence Collection 101 D o w n l o a d e d
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but also how the ego thinks others perceive it. This means that reputation plays a vital role in an individuals sense of self-worth. Name-calling might not cause physical injury. Yet it can, even without ones knowledge, do harm insofar as there is a vital interest in having others think well of oneself. 36 If, for example, the individual falls short of the rules or expectations of their identity group, s/he runs the risk of losing their respect and therefore losing important social and material benets afforded by their current position job, money, security, the love and affection of family and friends. Moreover, given that the ego thinks of itself as others think of it, 37 when s/he loses the respect of her/his identity group s/he loses the esteem that s/he had previous gained through them. Individuals draw strength and their own identity from their identity-group and without afrmation individuals can lose their sense of self-worth. Furthermore, they will then view themselves as those around them do, as degraded. Actions designed to humiliate or make the individual feel in some way degraded are therefore harmful because they aim to make the individual view her/himself as less than s/he is. Privacy Privacy is a term that is often used but rarely has an agreed denition, but rather acts as an umbrella concept covering a vast range of prohibitions and claims. For some, privacy is a psychological state; 38 for others, privacy is the extent to which information about them is communicated to others. 39 Others again see it purely as a physical state of affairs, being separated off from the rest of society. 40 Regardless of the many denitions, there are two 36 H.E. Baber, How Bad is Rape, Hypatia 2/2 (1987) pp.12538 at p.126. 37 B.F. Mannheim, Reference Groups, Membership Groups and the Self Image, Sociometry 29/3 (1966) pp.26579 at p.266. 38 M.A. Weinstein, The Uses of Privacy in the Good Life in J.R. Pennock and J.W. Chapman (eds.) Privacy: Nomos XIII (New York: Atherton Press 1971) p.94. 39 A.F. Westin, Privacy and Freedom (London: Bodley Head 1967) p.7. For the limited access theory of privacy see A.C. Breckenridge, The Right to Privacy (Lincoln: University of Nebraska Press 1970) p.1; I. Altman, Privacy A Conceptual Analysis, Environment and Behaviour 8/1 (1976) pp.729; J. Reiman, Privacy, Intimacy, and Personhood, Philosophy and Public Affairs 5/1 (1976) pp.2644 at p.42. For selective disclosure see C. Fried, Privacy: A Moral Analysis, Yale Law Review 77/1 (1968) pp.47593; A. Miller, The Assault on Privacy (Ann Arbor, MI: The University of Michigan Press 1971) p.25; R. Laufer and M. Wolfe, Privacy as a Concept and Social Issue: A Multidimensional Developmental Theory, The Journal of Social Issues 33/3 (1977) pp.2242 at p.34. 40 L. Brandeis and S. Warren, The Right to Privacy, The Harvard Law Review 4/5 (1980) pp.193220. For examples of contemporary theorists who dene privacy as to be let alone see: E. Bloustein, Group Privacy: The Right to Huddle in E. Bloustein (ed.) Individual and Group Privacy (New Brunswick, NJ: Transaction Books 1978) p.123; P. Freund, Privacy: One Concept of Many? in Pennock and Chapman (eds.) Nomos XIII, pp.18298; M. Konvitz, Privacy and the Law: A Philosophical Prelude, Law and Contemporary Problems 31/2 (1966) pp.27280 at p.279; H.P. Monagham, Of Liberty and Property, Cornell Law Review 62/1 (1977) p.414; F. Beytagh, Privacy and the Free Press: A Contemporary Conict in Values, New York Law Forum 20/3 (1975) pp.453514 at p.455. 102 Intelligence and National Security D o w n l o a d e d
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concepts of particular relevance to intelligence collection: privacy as boundaries and privacy as control. Boundaries mark out areas where outside intrusion is unwelcome. These boundaries both physically manifested or created as a result of socially accepted norms separate what is private on the inside from everything else on the outside. Over-stepping the mark, as it were, and violating an established boundary means violating the privacy of that person. This views privacy as the ability to separate oneself from the rest of society by setting out spheres of non-intrusion. These boundaries can be physical walls, clothes, bags for example or they can be metaphysical social constructions such as personal space. In comparison, privacy as control is the right of individuals to control those things pertaining to themselves, that is, the control we have over information about ourselves 41 or the control over ones personal affairs. 42 Privacy thus conceived is often seen as akin to property rights in that ones actions and their products belong to the self which generated them and are to be shared only with those with whom one wishes to share them. 43 Privacy is often seen as a vital interest as a result of both its instrumental as well as intrinsic worth. It is instrumentally vital since violations of ones privacy can result in severe physical, monetary, or social penalties. As long as we live in a society where individuals are generally intolerant of life styles, habits and ways of thinking, and where human foibles tend to become the objects of scorn or ridicule, our desire for privacy will continue unabated. 44 For example, blackmail gains much of its power from the material costs people would suffer if certain acts were to become known. However, privacy is also intrinsically valuable since, regardless of the nancial or social damage that any privacy violation might cause, an individual would still want to maintain this right. That is, even those who have nothing to hide would still object to other people being able to see or listen to them while they were in private. Many philosophers argue that there is a need for a sphere of privacy in order for individuals to relax, nd emotional release, self-reection and self-analysis. 45 Even if the individuals are not aware their privacy is being violated, they are still harmed insofar as their vital interest is wronged. For example, a camera inside an individuals home constitutes a violation of privacy and it can be argued that harm is done even though s/he might not experience the violation in a tangible or 41 Fried, Privacy, p.475. 42 H. Gross, Privacy and Autonomy in Pennock and Chapman (eds.) Nomos XIII, p.169. 43 E. Shils, Privacy: Its Constitution and Vicissitudes, Law and Contemporary Problems 31/2 (1966) p.281306 at p.290. For more on privacy as a property right see Judith J. Thomson, The Right to Privacy, Philosophy and Public Affairs 4/4 (1975) pp.295314. 44 W.A. Parent, Privacy, Morality and the Law, Philosophy and Public Affairs 12/4 (1983) p.267. 45 See Westin, Privacy and Freedom (1967), p.34; D. Bazelan, Probing Privacy, Georgia Law Review 2/1 (1997) pp.587621 at p.588; Weinstein, The Uses of Privacy in the Good Life, p.99. The Ethics of Intelligence Collection 103 D o w n l o a d e d
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material way. Therefore, for intelligence collection, the interest in privacy features heavily in the debate over the right to be able to communicate in private, access the internet in private, control personal information and live in a house free from outside observation. Intelligence Collection and Harm It can be argued, therefore, that violating an individuals vital interests should be prevented. An individuals vital interests are so fundamentally important that without them individuals are unable to continue with their aims, goals and aspirations. The problem for intelligence collection, however, is that some of the activities it uses can conict with one or more of these vital interests, and there is a compelling argument to be made that the resulting harm should be prohibited. Given that the activities involved in and entailed by intelligence collection are multifarious, it would be impossible in a single study to outline every way in which intelligence might cause harm. It is, however, important to demonstrate how intelligence collection can conict with an individuals vital interests and how it consequently has the potential to cause harm. 46 Privacy is one of the rst vital interests with which intelligence collection can quite often come into conict, especially since much intelligence collection involves attempts to discover what others wish to keep secret. An example is that of communications intelligence. Communicating with other people is an essential human activity, without which planning, organizing or carrying out any activity is increasingly difcult. The advances in computer technology have only exaggerated this, with technological means of communication increasingly permeating every aspect of society. For intelligence organizations, intercepting these communications can be vital. As Mark Lowenthal argues, communication intelligence gives insight into what is being said, planned and even considered by ones friends and enemies alike and is as close as one can come, from a distance, to reading another sides mind. 47 However, by intercepting anothers communications, their privacy is violated. This is because, rst, the activity involves intercepting and utilizing without consent information that is essentially the individuals property, and second, by violating a sphere with a strong expectation that the individual is in private, represented by the clear distinction between the inside of the communication where the message 46 It is possible to make the claim that open source intelligence is not going to cause harm by virtue of the fact it involves collecting information that is open to everyone. However, while this, in a vast majority of cases, might be true, it is not necessarily so. This is a review of the intelligence collection activities rather than the intelligence sources. The ethical status alters depending what actions are used rather than the type of sources aimed at. So, while open sources will probably not involve the same type of manipulation or deception that secret sources will more likely involve, there is no guarantee that this will always be the case. 47 Lowenthal, Intelligence: From Secrets to Policy, p.71. 104 Intelligence and National Security D o w n l o a d e d
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exists and the outside where the rest of society exists. 48 There are longstanding social conventions attaching to the privacy of ones commu- nications a notion that is reected in the famous, and often derided, quotation from then US secretary of state Henry L. Stimson in 1929 that, Gentlemen do not read each others mail. 49 Surveillance is another example of how intelligence collection can conict with an individuals vital interests as both the individuals privacy and autonomy can be violated. Surveillance can cover a wide range of activities from CCTV cameras and covert surveillance 50 to dataveillance and data- mining. 51 Who the individual is, where s/he is going, with whom s/he is associating or what s/he is doing all become the concern of the watchful eye. By collecting individual personal information in this way, an individuals privacy and autonomy is violated. The individuals privacy is violated in that the information collected is the individuals personal property; it pertains to their actions and personal details. By collecting and collating this information, the individuals right to control and keep it private is violated. Furthermore, the individuals autonomy is jeopardized as a result of the 48 This inside/outside distinction is still valid despite the advent of wireless technology and cyberspace communications such as emails since even though there might not be the physical wire to cut-into, there is still a data-stream, a signal or some notion of the communication having an inside to which only certain individuals are allowed access and an outside where the rest of the world exists. Furthermore, there is still an established understanding that even though it could nominally be thought that communications are in the air they are still private communications between set individuals. 49 D. Kahn, The Reader of Gentlemens Mail: Herbert O. Yardley and the Birth of American Codebreaking (London: Yale University Press 2004) p.101. 50 House of Lords: Select Committee on the Constitution, Surveillance: Citizens and the State, 2nd Report of Session 200809 (February 2009) x85 p.23. See Christopher Northcott, The Role, Organisation and Methods of MI5, International Journal of Intelligence and Counterintelligence 20/3 (2007) pp.45379; R.E. Morgan, Domestic Intelligence: Monitoring Dissent in America (Austin, TX: University of Texas Press 1980). 51 The term dataveillance refers to when the individual is monitored through the digital footprint s/he leaves as s/he carries out activities in both the digital and real worlds, or data- mining whereby the individuals personal details are collected and categorized. The argument for dataveillance is based on the premise that the planning of terrorist activity creates a pattern or signature that can be found in the ocean of transaction data created in the course of everyday life. By collecting this data the aim is to create a prole so as to predict a persons future actions or locate specic individuals. See J.X. Dempsey and L.M. Flint, Commercial Data and National Security, The George Washington Law Review 72/1 (2004) pp.1459502 at p.1464; D.J. Solove, The Digital Person: Technology and Privacy in the Information Age (New York: New York University Press 2004) p.23. In response to this new form of intelligence the American Defence Advanced Research Projects Agency (DARPA) in the Pentagon began funding a research project called Total Information Awareness (TIA). TIAs aim was to create a programme of prototypical data mining aimed at discovering and tracking terrorists through the digital paths of their routine transactions. I. Rubinstein, R.D. Lee and P.M. Schwartz, Data Mining and Internet Proling: Emerging Regulatory and Technological Approaches, The University of Chicago Law Review 75/1 (2008) pp.26186 at p.271; Solove, The Digital Person, p.263. The Ethics of Intelligence Collection 105 D o w n l o a d e d
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effect these collection activities can have on how s/he formulates their own will. For example, in George Orwells Nineteen Eighty-Four it was not just the lack of privacy that was so harrowing, but rather the use of surveillance as a major mechanism for social control. Knowing one is being watched by an asymmetrical gaze forces the target to act as he thinks is expected of him, since he is unable to know if he is actually being scrutinized at any particular point in time. For Foucault, he who is subject to a eld of visibility, and who knows it, assumes responsibility for the constraints of power; he makes them play upon himself; he plays both roles; be becomes the principle of his own subjection. 52 Intelligence collection can also violate an individuals autonomy when it uses deception or manipulation. Using unofcial covers, for example, whereby an intelligence ofcer receives a new identity to allow access to areas and people otherwise out of reach, involves extensive levels of deception and manipulation. However, by intentionally providing another individual with false information, the intelligence ofcer is distorting the individuals view of reality and therefore forcing the individual into decisions based on the ofcers terms rather than his own reasons and wishes. How the individual thinks he should act is no longer based on his own choices but on manipulation by the intelligence ofcer. Decisions on, for example, whether to trust the ofcer, how to act around him and what secrets one should divulge are all altered by the deceptions used. Finally, the harm ethic argued here can prove interesting in relation to the attempts during the 20019 Bush administration to redene the parameters of torture. The Bybee Memos were a set of legal memoranda that redened torture as only those activities that were to cause serious physical injury, such as organ failure, impairment of bodily function, or even death or mental harm that would prove to last months or even years. 53 However, such redenitions, it can be argued with reference to the harm ethic, established excessively indulgent parameters of torture, while also ignoring important harms to the individuals sense of self-worth. Examples of interrogation tactics used at Abu Ghraib and Guantanamo Bay include, breaking chemical lights and pouring the phosphoric liquid on detainees; pouring cold water on naked detainees; beating with rope; sodomising a detainee with a chemical light and a broom stick; and using military working dogs to frighten and intimidate; 54 hooding, hand cufng with exi-cuffs, beatings, slapping, punching, kicking; being paraded round naked outside 52 M. Foucault, Discipline and Punish: The Birth of the Prison (Harmondsworth: Penguin 1979) p.202. 53 J.S. Bybee, Memorandum for Alberto R. Gonzales Counsel to the President, U.S. Department Justice Ofce of Legal Counsel, 1 August 2002, 5http://www.washington post.com/wp-srv/nation/documents/dojinterrogationmemo20020801.pdf4 (accessed 23 April 2006). 54 A. Tagbua, Article 15-6 Investigation of the 800th Military Police Brigade [The Taguba Report] (4 June 2004) p.17 x8, 5http://www.npr.org/iraq/2004/prison_abuse_report.pdf4 (accessed 1 May 2007). 106 Intelligence and National Security D o w n l o a d e d
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the cells; exposure to loud noise; and prolonged exposure to intense sun over several hours; 55 and even forcing a prisoner to masturbate in front of jeering captors. 56 According to the parameters prescribed in the Bybee Memo, these activities would not count as torture given that the damage is neither severe nor sufciently long-lasting. In comparison, the harm ethic promoted in this article maintains that these are some of the most serious violations of an individuals physical integrity, mental integrity and sense of self-worth. The physical and psychological pain experienced is extreme in the immediate instance, regardless of any long-term effects. 57 Moreover, as William Twining and Barrie Paskins note, it is not just the intensity and quality of physical pain that is important, but also the special disutility that is associated with the higher pains only available to creatures that can experience humiliation, shame, dread, anguish, and self-disgust. 58 There is, however, clearly a difference between the degrees of harm caused by wiretapping, deception, manipulation, and torture. The difference depends on rst, which of the individuals vital interests is violated; second, the severity of the violation; and third, the duration of the violation. The rst point argues that, all other things being equal, some interests such as physical and mental integrity can take precedence over the other interests such as autonomy, liberty, self-worth or privacy. 59 Severity refers to the degree of violation. This is because an individuals vital interests are not binary concepts whole one minute and destroyed the next but can experience a partial loss. For instance, there are various types of privacy spheres, and depending on how personal or intimate the sphere that is violated is the degree to which the individuals privacy is damaged is altered. By altering the severity of the violation one alters the level of harm caused. Finally, the degree of harm produced can depend on the temporal quality of the activity. This is because if acts of low severity become prolonged, recur continuously or occur at strategically untimely moments they become chronic distractions and can begin to impede even those interests that are said to be timeless. 60 However, the point of other things being equal demonstrates that the degree of harm caused is dependent on all three aspects brought together. For example, a prick on the nger just because it is 55 M. Danner, Torture and Truth: America, Abu Ghraib and the War on Terror (London: Granta Books 2005) p.6. 56 D. Sussman, Whats Wrong with Torture?, Philosophy and Public Affairs 33/3 (2005) pp.133 at p.22. 57 For accounts of the power of pain see E. Scarry, The Body in Pain, pp.4551 and R. Melzack and P. Wall, The Challenge of Pain (Harmondsworth: Penguin 1984), on the susceptibility of humans to physical pain and the role it plays in debilitating people. 58 W. Twining and B. Paskins, Torture and Philosophy, The Proceedings of the Aristotelian Society 52 (1978) pp.14394 at p.166. 59 Berlin declared that in much the same way that boots were more important than the words of Shakespeare, liberty and autonomy are not necessarily the total rst need of an individual. Berlin, Two Concepts of Liberty, p.124. 60 Feinberg, Harm to Others, pp.456. The Ethics of Intelligence Collection 107 D o w n l o a d e d
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a physical violation is not a greater harm than being locked away for 20 years. Therefore, the difference between tapping someones wires and monitor- ing someone in a public space is the difference between the severities of the violation of privacy; the former is considered a more severe violation because it violates a more stringently maintained and socially established sphere of privacy as well as the understanding that individuals implicitly consent to a partial and temporary reduction of their privacies by freely electing to enter public spaces. The difference between manipulating and deceiving someone or blackmailing them is that the latter involves a more severe violation of the individuals autonomy. Finally, torture represents the most harmful of the activities, given that it violates all of an individuals vital interests and represents the most severe examples of how one might violate each of these interests. Just War and Just Intelligence While it has been argued thus far that intelligence collection can indeed cause harm to those it targets as a result of violating an individuals vital interests, and that this harm should be prevented, this does not mean that collection activities are always prohibited. Intelligence plays a vital role in protecting the political community. Given the correct circumstances and depending on the degree of harm caused, intelligence collection activities can be justied. To this end, by using the just war tradition as a base it is possible to establish a set of just intelligence principles that can limit the harm intelligence collection causes while outlining what circumstances would be required to justify the harm caused. Just War Meets Just Intelligence It is impossible to think of a single just war doctrine, with a single point of linear development from a single idea. Instead, just war is better understood as a set of recurrent issues and themes in the discussion of warfare . . . reecting a general philosophical orientation towards the subject. 61 The just war tradition is an organic, evolutionary set of concepts that have been developed over time in response to the moral issues of the day. Over the centuries the just war tradition has been developed and adapted by theologians, philosophers, military professionals and jurists in order to grapple with the notion that there are some acts, such as killing, that are considered to be gravely wrong, while understanding that in certain circumstances these same acts might be permissible. What evolved was a set of principles designed to govern and limit the activity of war and the harm it can cause. These principles at the same time maintained the broader context of the duty of the public authorities to retain 61 Ian Clark, Waging War: A Philosophical Introduction (Oxford: Clarendon Press 1988) p.31. 108 Intelligence and National Security D o w n l o a d e d
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the capacity to use violence for the protection of ones state or that of international peace and stability. 62 It is because the just war tradition attempts to reconcile this tension that it can be argued that it is the most appropriate starting-point in designing an ethical intelligence framework that is, one able to understand if and when the harm caused by intelligence collection is justied in relation to the good of the political community. These just intelligence principles demand both a limitation on the harm done by intelligence collection, while also outlining exactly when harm is justied. These just intelligence principles are as follows: . Just cause: there must be a sufcient threat to justify the harm that might be caused by the intelligence collection activity. . Authority: there must be legitimate authority, representing the political communitys interests, sanctioning the activity. . Intention: the means should be used for the intended purpose and not for other (political, economic, social) objectives. . Proportion: the harm that is perceived to be caused should be outweighed by the perceived gains. . Last resort: less harmful acts should be attempted before more harmful ones are chosen. . Discrimination: There should be discrimination between legitimate and illegitimate targets Just Cause The principle of just cause is often considered by many theorists to be a core just war principle as it interrogates the justication for going to war. 63 Thomas Aquinas argued that for a war to be just there must be some reason or injury to give cause, namely that those who are attacked must be attacked because they deserve it on account of some fault. 64 Currently, international law frames self-defence as the main justication for going to war. 65 The just cause equivalent for intelligence collection is, therefore, that there must be a sufcient threat to justify the harm that might be caused. It is the role of intelligence agencies to safeguard and maintain a states national security and, in particular, its protection against threats. 66 It is the detection and prevention of these threats that enables intelligence agencies to protect 62 B. Orend, Morality of War (Peterborough: Broadview Press 2006) p.9; J.T. Turner, Just War Tradition and the Restraint of War: A Moral and Historical Inquiry (Princeton, NJ: Princeton University Press 1981) p.xxi. 63 Orend, Morality of War, p.9. 64 T. Aquinas, From Summa Theologiae in Chris Brown, Terry Nardin and Nicholas Rengger (eds.) International Relations in Political Thought (Cambridge: Cambridge University Press 2002) p.214. 65 For example, the United Nations Charter states that nothing shall impair the inherent right of individual or collective self-defence if an armed attack occurs. UN Charter Article 51. 66 United Kingdom, Security Service Act 1989 x1(2). The Ethics of Intelligence Collection 109 D o w n l o a d e d
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the state and its people. As such, the just cause for the use of intelligence collection is one of self-defence against threats. Depending on the type and degree of the threat, the type and degree of harm allowed is then altered. That is, the more harmful the act is the greater the threat required to justify it. Also, the burden of proof required to indicate whether the threat is real can vary according to the harm caused. Specically, the greater the harm that might be caused the greater the evidence required to prove the threat real. Activities that cause only a low level of harm would only require a reasonable suspicion of a threat to act as a just cause, whereas those activities that cause greater degrees of harm would require more concrete evidence to demonstrate to an objective observer that a clear threat exists. In this way, the initial data collection can be achieved under a reasonable suspicion using the least harmful collection activities so as to understand the threat better, and if necessary the information gained can provide evidence for the just cause that legitimizes further intelligence collection. For example, the high level of tension between the West and the Soviet bloc during the Cold War represented a legitimate just cause for using several forms of intelligence collection. Between the United Kingdom and the United States, on the other hand, it could not be argued that there was any immediate threat as to justify anything but the least harmful means of intelligence collection. Outlining different levels of evidence in this way also prevents a paradox occurring where in order to have a just cause there is a need to collect information rst to act as a just cause. But, by using those intelligence collection activities that cause a low level of harm there is only a need for a low level of threat to act as a just cause. The information collected from this initial, low harm investigation can then act as the just cause for higher levels of harm. Just Intelligence and Authority For a war to be considered morally permissible according to the just war tradition it must be authorized by the right authority, that is, those who have the right to command by virtue of their position. As Aquinas stated, the ruler for whom the war is to be fought must have the authority to do so and a private person does not have the right to make war. 67 Those entrusted with the common good are charged with the duty to protect the political community: since the care of the common weal is committed to those who are in the right authority, it is their business to watch over the common weal. 68 Therefore, it is only that body which is charged with protecting the common good and holds their interests in mind that can take them to war justly. Similarly, one can argue that in order for intelligence collection to be just, there must be a legitimate authority present to sanction the harms that can be caused. Since some forms of intelligence collection will involve a degree of harm, society needs to vest the authority to act in certain institutions or 67 Aquinas, From Summa Theologiae, p.214. 68 Ibid. 110 Intelligence and National Security D o w n l o a d e d
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those that represent the political community and their wishes. Furthermore, one might argue that intelligence collection needs to be authorized by a body that is able to ensure that the just intelligence principles are being met fully and without bias. Those planning, performing or even managing operations might have invested interests in getting their job done. For example, there is a huge external pressure on intelligence services to provide the correct information in a timely fashion to their clients. As such, as Sir David Omand has remarked, there is need for proper oversight from outside the intelligence community and a robust mechanism where any individual issue raised can be done so without fear, yet done in ways that will protect the essential secrecy of the business. 69 The most notable example of this notion of right authority as used in intelligence collection is for a wiretap-warrant application. In the Anglo-American intelligence system there is an oversight mechanism which utilizes either the judiciary branch (American system) or the political branch (UK system) to act as just authorities and to ensure that certain principles have been satised. 70 This represents a valuable model for the notion of legitimate authority, as evidence is presented through a specic mechanism that is versed in weighing proof of evidence while holding the interests of the wider political community and ensuring certain criteria are met. By extrapolating this system to other means of intelligence collection activities it could be possible to offer a means of authorizing intelligence swiftly while ensuring it is authorized by an appropriate oversight body. Just Intelligence and Right Intentions Just war theorists think it insufcient merely to have an objective just cause for war; there must also be a proper subjective right intention. The intention behind an act alters the moral quality of the act. Indeed, intention has become an important part of our common moral discourse, altering how we talk about, speculate on, and judge actions. 71 Leaders must be able to justify their decisions, noting that they had the right intentions; for those that slip the dogs of war, it is not sufcient that things turn out for the best. 72 The reasoning behind this is that it is very possible for war to be declared by legitimate authority and just cause, yet nonetheless be made unlawful 69 D. Omand, The Dilemmas of Using Secret Intelligence for Public Security in Peter Hennessy (ed.) The New Protective State: Government, Intelligence and Terrorism (London: Continuum 2007) p.165. 70 Wiretaps in United Kingdom require a warrant that must be authorized by the Secretary of State, see Regulation of Investigatory Powers Act 2000 Chapter 23, Part 1, Chapter 1, x6(1). In the American system wiretaps must be authorized by a three judge panel whose sole purpose is to review applications for electronic surveillance warrants. See The Foreign Intelligence Surveillance Act 1978 Electronic Surveillance Within the United States for Foreign Intelligence Purposes, x101105. 71 See J. Thomson, The Trolley Problem, in William Pereni (ed.) Rights, Restitution and Risk (Cambridge: Harvard University Press 1986) pp.1012; T.M. Scanlon and J. Daney, Intention and Permissibility, Supplement to the Proceedings of the Aristotelian Society 74/1 (2000) pp.30117. 72 D.P. Lackey, The Ethics of War and Peace (London: Prentice Hall International 1989) p.32. The Ethics of Intelligence Collection 111 D o w n l o a d e d
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through a wicked intention. 73 This means that the reasons given are not simply there to serve as a cover for the pursuit of other aims, even if there is a just cause. The intention of the war must reect the just cause which is used to justify the war. If it is a war of self-defence, for example, then the intention of the war must be to deal with this and not ght a war of aggrandizement. The intention behind the war is then demonstrated through the conduct of the war itself, in that wars with the intention of self-defence should not involve tactics of domination or subjugation. By drawing on this logic it can be argued that in order for intelligence collection to be morally permissible the intelligence collection means should be used for the stated purpose and not for other political, economic, or social objectives. This right intention should ow from the just cause used to justify the intelligence collection. This means that the just cause is not therefore used as a pretext for a host of unrelated actions. What is more, the actions used should reect the right intention. For example, since the just cause for the just intelligence principle is to assess and determine the reality of a threat, the intention, and therefore the means employed, should directly correlate to this threat. The intention should be to investigate this threat. The means who is targeted, and how much harm is allowed, should all ow from the intended purpose of dealing with the threat. This just intelligence criterion is designed to prevent the use of intelligence collection for personal, political or economic gain, even though there might be an existing sufcient threat. This principle can have important implications for information collection. In instances where a warrant is applied for for wiretaps or property searches for example the terms of the warrant should reect the just cause, and in turn the type of search carried out should reect the intent behind the warrant. 74 This means that the investigating ofcer may only search places which might reasonably be suspected of containing the specied offending articles. 75 If the ofcer was to search places outside what is reected in the just cause, then he is acting with an ulterior motive to the just cause and is therefore not working with the right intention. 76 However, anything which is thrown-up incidentally to the lawful search may be seized as complies with the warrant, since even though the items found were not on the warrant, the type of search carried out that found the offending articles is still in-line with 73 Aquinas, From Summa Theologiae, p.214. 74 A search under a warrant may only be a search to the extent required for the purpose for which the warrant was issued Police and Criminal Evidence Act 1984 x 16(8). 75 R. Stone, The Law of Entry, Search and Seizure (Oxford: Oxford University Press 2005) p.171. 76 Obviously, there might be some difculty proving that the ofcer was using the power of the warrant for an ulterior motive sometimes, but given that the intent is reected in the actions carried out, the way in which the search is conducted leave little room for doubt that the intent was improper. For example, if a warrant is obtained to search premises for evidence of tax fraud, it would be unreasonable to believe that they would nd evidence of the fraud in places where they might nd drugs. See D. Feldman, The Law Relating to Entry, Search and Seizure (London: Butterworths 1986) p.171. 112 Intelligence and National Security D o w n l o a d e d
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the original intention. Just because the outcome does not match with the original intention does not alter the fact that the ofcer was working with the correct intention in the rst place. Another implication of this principle is reected in the current debate on personal information databases and how crossover information collection should be restricted. If information is collected DNA, ngerprints, personal data for example under a just cause with the appropriate degree of evidence, but was incidentally connected to another crime, then the information can be used since the original just cause and correct intention was present. This would be analogous to nding illegal goods incidentally while performing a legal search. However, what is not permissible is to use a just cause such as tax fraud to justify the collection and retention of DNA, as this type of information is unrelated and is not reecting the original just cause, clearly outside what should be the correct intention. 77 Just Intelligence and Last Resort In the just war tradition the principle of last resort is an attempt to allow those relatively benign means of responding to a crisis, such as diplomacy or economic pressure, a chance to resolve the issue before resort to organized violence is permitted. This way, if it is possible, more harmful acts are avoided. Richard Miller argues that, even if [force] is sometimes necessary and morally justiable, but the just cause could be achieved by non-violence means then the party has a moral duty to prefer these methods. 78 However, Robert Phillips warns that, it is a mistake to suppose that last necessarily designates the nal move in a chronological series of actions. 79 If it did, then force would never be legitimized since one could always continue to negotiate. Instead, what it demands is that actors carefully evaluate all the different strategies that might bring about the desired end, selecting force as it appears to be the only feasible strategy for securing those ends. 80 If time and circumstances permitted other means short of force then they should be used; there is not a rigid sequence which one must follow at all times, but an understanding that the most harmful acts should not be used if less harmful activities can achieve the same result. 77 Moreover, if the individual from which the information was collected was proved to be innocent in regards to the investigation then the original just cause was proved false and any later investigations which might use it would require new a new just cause and evidence. Any later investigations could not retain the information incidentally and use it as they could not prove that they retrospective intent. The length of time to which information collection under this type of example set by the European Court council is set out in Parliamentary Assembly of the Council of Europe, Data Retention Directive of the European Parliament and of the Council (2006/24/EC 15 March 2006). 78 R.B. Miller, Interpretations of Conict, Ethics, Pacism and the Just War Tradition (Chicago, IL; London: University of Chicago Press 1991) p.14. 79 R. Phillips, War and Justice (Norman, OK: University of Oklahoma Press 1984) p.14. 80 A.J. Bellamy, Just Wars: From Cicero to Iraq (Cambridge and Malden, MA: Polity Press 2006) p.123. The Ethics of Intelligence Collection 113 D o w n l o a d e d
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Based on this conception of last resort, one can argue for a similar rationale for the just intelligence principles. In order for an intelligence collection means to be just, it must only be used once other less or none harmful means have been exhausted or are redundant. Any attempt to deal with the threat should use the least harmful rst and thus give the opportunity for more harmful activities to be avoided. While there is no rigid methodology or steps that must be worked through, it does require that some of the more harmful actions are not resorted to out of ease, expediency or preference. Just Intelligence and Proportionality The idea of proportionality is one of the oldest principles not only of the just war tradition, but also of moral theory and military strategy in general. 81 Leaders and individuals are constantly tasked with weighing up the costs of an action against what can be gained. The principle of proportionality is similar in that it establishes the notion that the violence of war should be proportionate to the threat that it is meant to overcome, placing a limit on the amount of damage permissible for a given action. Kateri Carmola argues that the need for a principle of proportionality is rooted in the human tendency towards disproportionate, unmeasured, passionate and cruel responses. 82 Clausewitz warns that war by its very nature tends towards the extreme and the utmost use of force: an act of violence which in its application knows no bounds and in which a proportionate response to anothers power is met by an escalating response and so on. 83 Whilst war may be the legitimate answer to right a wrong in certain circumstances, not all wrongs that a state can experience are of sufcient magnitude to justify the harm that might be caused: some wrongs are neither grievous nor widespread enough to legitimate the inevitable evils that war entails. 84 One can argue that, for the intelligence collection to be just, the level of harm that one perceives to be caused, or prevented, by the collection should be outweighed by the perceived gains. In collecting intelligence there is always a perceived end what is expected to be gained and the harm that could be caused. The principle of proportionality is designed to evaluate these two factors and determine if, on balance, an overall greater level of resultant harm would outweigh what is gained from the intelligence collection. Furthermore, the principle of proportionality will only take the good which contributes to the just cause as a positive, while it will include 81 See A.J. Coates, The Ethics of War (Manchester: Manchester University Press 1997); J.T. Johnson, Morality and Contemporary Warfare (London: Yale University Press 2001); R. Norman, Ethics, Killing and War (Cambridge: Cambridge University Press 1995). 82 K. Carmola, The Concept of Proportionality: Old Questions and New Ambiguities in M. Evans (ed.) Just War Theory: A Reappraisal (Edinburgh: Edinburgh University Press 2005) p.97. 83 Carl von Clausewitz, On War, ed. and trans. Michael Howard and Peter Paret (Princeton, NJ: Princeton University Press 1989) p.76. 84 Bellamy, Just Wars, p.123. 114 Intelligence and National Security D o w n l o a d e d
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all bad results as a negative. For example, it does not take into account a boosted economy as a good for a war of self-defence while the damage it might do to the economy can be taken into account as a negative. For intelligence collection, this means that only information which will contribute to the just cause can be accounted as a positive; other harms, such as harm to the target, harm to the agent, as well as the harm to society in general, can be taken as a negative. Just Intelligence and Discrimination The requirement that an attack must discriminate between combatants and non-combatants is one of the most stridently codied just war rules and is reected in the international laws of war. 85 This moral distinction most often seen in the differentiation between armed soldiers who constitute legitimate targets and unarmed civilians as illegitimate targets is based, rst, on the moral right of self-defence. According to this right the armed soldier poses a threat and can be attacked out of pre-emptive self-defence; and second, as Walzer argues, that the soldier has acted in a way as to become a dangerous man and has thereby waived or temporarily suspended his normal protective rights. 86 By taking up arms the soldier has clearly demarcated himself as separate from the ordinary civilian and is both bestowed with combatants privilege, an exemption from being tried for murder of the other soldiers, as well as sacricing some of his other rights in the process, that is, the right not to be attacked. One can argue that for just intelligence collection there must be discrimination between targets. Just as soldiers waive their protective rights by acting in a threatening way, so too can any individual act in such a way as to make himself threatening and forfeit his protective rights. For example, Tony Pfaff and Jeffery Tiel argue that, consent to participate in the world of national security on all levels of a countrys self-defence structure together with the quality of the information possessed justies them as targets. 87 This principle of discrimination argues that there are certain acts people can perform that mark them as legitimate targets, and that without these acts they are otherwise illegitimate targets. In this way, civilians and not just soldiers can become legitimate targets by particular actions that mark them 85 Geneva 1949; 1977 Geneva Protocol II Additional to the Geneva Convention of 1949: The Protection to of Victims of Armed Conicts Section, Chapter 11 Protection of Civilian Population: Article 51, Section 2. Traditionally, the distinction between legitimate and illegitimate targets was seen to arise out of the moral prohibition of taking innocent life. Rather than referring the moral status of the individual and discriminating on the basis of moral guilt, innocence in this sense is based on the negative etymological derivation of the word from the Latin nocere (to harm) to mean harmless, rather than blameless. See Coates, The Ethics of War, p.2335; also Norman, Ethics, p.168; J. McMahan, Innocence, Self- Defence and Killing in War, The Journal of Political Philosophy 2/1 (2006) pp.193221 at p.193. 86 M. Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (New York: Basic Books 2000) p.145. 87 Pfaff and Tiel, The Ethics of Espionage, p.6. The Ethics of Intelligence Collection 115 D o w n l o a d e d
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as a threat. Walzer notes that while it may be hard to understand this extension of combatant status beyond the category of soldiers, through modern warfare this has become common enough. Civilians can become partially assimilated when they are engaged in activities threatening and harmful to their enemies. 88 The principle of discrimination for the just intelligence principles therefore distinguishes between those individuals without involvement in a threat (and thereby protected), and those who have made themselves a part of the threat (and by so doing have become legitimate targets). According to the degree to which an individual has assimilated himself, either through making himself a threat or acting in a manner that forfeits his rights, the level of harm which can be used against him will alter. For example, terrorists and intelligence ofcers are both legitimate targets because they have fully entered the game through their actions. In comparison, a piano tuner, who has done nothing that might be seen as threatening or acted in any way to waive his protective rights, is an illegitimate target. Furthermore, a scientist who works on weapons has taken a job which places him within the security infrastructure of a state and has taken on vital information and thus forfeited certain protective rights and consequently becomes a legitimate target for some of the intelligence collection harms. He has only partially entered the game and therefore is only a partially assimilated target. Conclusion This article has posed the problem of how intelligence collection can be conducted ethically. In brief, secret intelligence collection is a vital and even indispensible tool in the eternal vigilance required to protect the state from a variety of internal and external threats. However, its effective use initiates acts that can cause severe harm to those it targets and, as such, without further justication would not be allowed. As Quinlan argues, in the face of that tension, we cannot say that morality must simply be set aside; we have to identify some conceptual structure for legitimising and disciplining the activity. 89 In response to that challenge, this article has proposed an ethical construct constituted of two important parts: the rst delineates the harm that intelligence collection can cause, making it clear what it is that assigns an immoral quality to intelligence collection; the second outlines a framework that both limits the use of intelligence collection and acknowl- edges those situations when the harm caused is justiable. First, it is essential to recognize that intelligence collection involves a myriad of activities, making an all-encompassing declaration on the moral status of all activities not only impossible but unhelpful. Instead, there is a need for an ethical framework that is nuanced, one able to calibrate and evaluate these different activities and compare them with each other. The harm framework proposed here provides the means for understanding how 88 Walzer, Just and Unjust Wars, pp.1456. 89 Quinlan, Just Intelligence, p.12. 116 Intelligence and National Security D o w n l o a d e d
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very different activities can be understood in comparison with each other and in doing so offers a means to establish a core understanding about how intelligence collection affects people and why it is considered unacceptable in relation to ethical standards. It is then possible to incorporate these different activities within the just intelligence framework, a framework that can evaluate the harm caused and resolve this with the duties of the political community. The just intelligence principles each provide a limit on the use of intelligence collection. At the same time they outline a set of ethical measures which ensure that harm is only justied when there is a threat of sufcient proportion, recognized by those whose responsibility it is to protect the people, used against those who are justied targets and conducted with the intention of protection and self- defence. Under these normative guidelines, then the harm caused becomes justiable. While it is possible to argue that some intelligence systems adhere to the ethical principles discussed, the application is both inconsistent and implicit. For example, while the principle of legitimate authority is arguably used for wiretaps and property searches, there is no such systemic oversight and authorization for other forms of intelligence collection. Furthermore, while intelligence agencies might only target threatening people as they are the only ones worth targeting, there is no explicit limit on who or what can be targeted. Therefore, only by explicitly applying the ethical principles as outlined here before the fact can intelligence guarantee that its application of methods be ethically justied. Only by using both of these different ethical frameworks is it possible to understand the dual quality of intelligence collection: that intelligence collection does indeed cause harm, but that sometimes this harm is necessary in order to protect those for whom a state carries responsibility. The Ethics of Intelligence Collection 117 D o w n l o a d e d