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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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