Ethics and the Future of Spying

Technology, National Security and Intelligence Collection

Jai Galliott, Warren Reed, Jai Galliott, Warren Reed

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317590545
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Intelligence & Espionage
• Index: Politics & International Relations

This volume examines the ethical issues generated by recent developments in intelligence collection and offers a comprehensive analysis of the key legal, moral and social questions thereby raised.

Intelligence officers, whether gatherers, analysts or some combination thereof, are operating in a sea of social, political, scientific and technological change. This book examines the new challenges faced by the intelligence community as a result of these changes. It looks not only at how governments employ spies as a tool of state and how the ultimate outcomes are judged by their societies, but also at the mind-set of the spy. In so doing, this volume casts a rare light on an often ignored dimension of spying: the essential role of truth and how it is defined in an intelligence context. This book offers some insights into the workings of the intelligence community and aims to provide the first comprehensive and unifying analysis of the relevant moral, legal and social questions, with a view toward developing policy that may influence real-world decision making. The contributors analyse the ethics of spying across a broad canvas – historical, philosophical, moral and cultural – with chapters covering interrogation and torture, intelligence's relation to war, remote killing, cyber surveillance, responsibility and governance. In the wake of the phenomena of WikiLeaks and the Edward Snowden revelations, the intelligence community has entered an unprecedented period of broad public scrutiny and scepticism, making this volume a timely contribution.

This book will be of much interest to students of ethics, intelligence studies, security studies, foreign policy and IR in general.

PART I The moral case for spying

The virtues of Bond and vices of Bauer An Aristotelian defence of espionage

Mark Jensen

DOI: 10.4324/9781315743912-1

Moral assessment of espionage is difficult. In the first place, ordinary citizens are not privy to the day-to-day operations of our intelligence agencies. This is as it should be: if these operations are to be successful, they must be kept secret. While citizens in a modern liberal democracy expect their governments to exercise oversight to ensure the effectiveness and scrupulousness of intelligence agencies, we recognise that we do not need to know what these agencies are doing on a daily basis. But this also means that we are not in a position to make moral judgments on their principles and actions. In addition, our knowledge about past operations undertaken by intelligence agencies is at best sketchy. We know about spectacular successes (Osama bin Laden) and spectacular failures (Edward Snowden). Successes tend to glamorise the practice; failures lead to vilification. There are excellent historical treatments of some episodes, but even these present only a partial picture of the past and tell us little about the present.¹

Nevertheless, it is possible to evaluate espionage in abstraction: we can work from an operational definition and test it against the main evaluative approaches in normative ethics: deontology, consequentialism and virtue theory. While the philosophical literature includes several ‘fourth’ approaches, these three, which focus (respectively) on the right, the good and the excellent, lie at the centre of contemporary discussion, are codified across our social and political institutions, and have been at the heart of ethical philosophy for millennia. In this chapter, I will argue that while espionage does not fare well against traditional deontological or consequentialist criteria, a broad defence of espionage is possible under an Aristotelian version of virtue theory. Such a defence will not satisfy everyone (especially those with reservations about virtue theory), but it is robust enough to answer the most worrisome objections and provide guidance for policymakers looking to establish ethical guidelines for intelligence agencies in the modern world. Toward a defence of this perspective, I will first define espionage and distinguish it from related practices. I will then test it against criteria central to the three main approaches. I conclude with a brief consideration of some prominent objections and a vindication of this chapter’s title.

What is espionage?

Espionage is a set of practices undertaken by nation-states aimed at discovering the secrets of other nation-states. To clarify these practices, we must describe the actors involved in espionage, differentiate espionage from ordinary intelligence gathering, and distinguish between espionage and acts of war.

First, the form of espionage that concerns us here is that occurring between states. While it is true that individuals and corporations spy on one another, we typically reserve the term ‘espionage’ for activity in the international arena: sovereign states spying on other sovereign states. At the same time, when we say that espionage is a state activity, we mean this literally: acts of espionage are undertaken by the state, not by individuals. Of course, it is individuals who do the day-to-day work of spying. But these individuals are agents of the state authorised to spy on its behalf. In this way, our ethical assessment of espionage should be analogous to our ethical assessment of war.² According to the Just War tradition, soldiers are permitted to do many things in combat that we forbid in civilian life. By analogy, intelligence agents are permitted to do many things that we forbid in civilian life.³

Second, espionage must be distinguished from intelligence gathering. Ordinary intelligence gathering need not rise to the level of espionage, insofar as there is much that nation A can learn about nation B simply by collecting information that nation B has made public. More specifically, ordinary intelligence gathering can be carried out without breaking the laws of nation B. Espionage, however, aims to acquire information that nation B has not made public, information that nation B intends to conceal from nation A. Nation B guards its secrets by concealing them, prohibiting their disclosure and prohibiting practices that one might use to discover them. Espionage by nation A therefore involves law-breaking in nation B.

Our final distinction concerns the difference between espionage and war. While espionage involves breaking the laws of the target nation, the aim of espionage qua espionage is not to harm the target nation directly; it is merely to obtain the secrets of the target nation. In this way, espionage is different from sabotage, terrorism and warfare. To be sure, espionage will be a regular companion to these other practices – a prerequisite for effective sabotage might be effective espionage. At the same time, the individual practices associated with espionage might involve the perpetration of harm by agents of nation A on agents and citizens of nation B. But espionage is not necessarily linked to harmful intent on the part of nation A towards nation B. Even at the level of individual agents and their targets, the aim is not to provoke violence in nation B’s agents and citizens. The functional aim of espionage qua espionage is always passive: observation and data collection. That this is the right way to understand espionage as practised in the international community is evidenced by the fact that nations practise espionage (at least in some forms) against those with which they are friendly, as well as those considered rivals or enemies.

Notice here that we have located espionage on a scale that has benign acquisition of information at one end and aggressive, disruptive acquisition of information at the other.⁴ My claim is not that espionage constitutes a golden mean between these two, but that espionage represents an imprecise cluster of intelligence-gathering activities that stand in continuum_ espionage is far enough up the scale to involve law-breaking in the target country, but not so far that these practices will be seen by the target nation or the international community to constitute a harm justifying a violent response. Espionage is a provocative practice, but it does not intend to provoke.

Espionage and deontology

Deontological approaches to normative ethics place a premium on objective or universal rights. Immanuel Kant, the eighteenth century German philosopher whose work remains central to deontological theories of normative ethics, offers two different starting points for deontological judgment. Here we will focus on his second approach, which is grounded in respect for human dignity. Most commentators see this second approach as a more substantive and applicable starting point than the first. Kant’s principle is as follows: ‘act that you use humanity, whether in your own person or in any other, always at the same time as an end and never merely as a means’ (Kant 1997, p. 38). The idea here is that an action counts as moral only if in acting I respect the dignity of others as autonomous rational agents. In other words, insofar as my actions involve others, I must defer to their judgment about what they themselves should do, rather than induce them to act against that judgment. When I lie to you, for example, I deliberately disrupt your ability to make informed judgments and in this way manipulate your capacity for deliberation and decision-making. I fail to treat you with the dignity that is your right as an autonomous rational agent.

This principle justifies a set of absolute moral duties, including prohibitions on murder, theft and lying as well as prescriptions for beneficence and generosity. At the same time, we must distinguish between ‘unremitting’ duties and ‘meritorious’ duties: generally speaking, prohibitions are unremitting duties and prescriptions are meritorious duties (Kant 1997, p. 33). While both types of duty are moral requirements, unremitting duties must always be followed, while meritorious duties may be broken if they conflict with unremitting duties. For example, if the only way for me to carry out a duty of beneficence (a meritorious duty) with respect to a destitute person was to first steal from a rich person (thus violating an unremitting duty), then I should not carry out my duty of beneficence. In other words, actions that aim at some good must always conform to the whole system of rules – one may not violate a rule in order to attain some good.⁵

On this rather brief account, it appears at first glance that espionage is unethical. Practices associated with espionage such as lying, cheating, bribing and blackmailing would be clear violations of Kant’s principle. This is the case not only for intelligence agents but also for those who, under the influence of an intelligence agent in one way or another, elect to break the laws of their own nation in order to supply information to an agency. Moreover, these sources treat their fellow officials as means to their own ends. In this way, espionage violates the dignity of others.

One response to this analysis would be to distinguish between espionage motivated by self-defence and espionage motivated by aggression. If my rights and dignity are threatened by my nation, then I might consider aiding my nation’s enemy in order to defend myself against this threat. Even Kant allows that a nation may defend itself against aggression committed by another nation (Kant 1996b, pp. 318–19). Moreover, insofar as I may respond not merely to threats against me but also to threats against others, perhaps I have defensive grounds for aiding an enemy of my nation if it is clear that, in my judgment, I would be acting in defence of threatened individuals. In this case, foreign agents would not be using me as a mere means; it would be my autonomous decision to provide them with information.

However, while Kant allows that a nation has a moral right to defend itself against aggression, he is quite clear that moral rules continue to apply in the context of that defence. More generally, whatever good may come from violating our duty to keep our promises, tell the truth and so on, the fact is that a meritorious duty can still never trump an unremitting duty. So even if we are required to prevent harm to ourselves and others, this can never trump the prohibition against lying, cheating, stealing and so on. I am never permitted to lie or steal, no matter what good it might bring about (Kant 1996a).

A second, more sophisticated response to this deontological analysis would be to distinguish between the actions of individuals and the actions of states, arguing that the moral rules that govern states are different from the moral rules that govern individuals. Perhaps acts of espionage are permissible for states and their agents but not for individuals. Justification for this line of response might be drawn from classical Just War theory (following our elaboration of the definition of espionage above), in which the moral rules that apply to soldiers are different from the moral rules that apply to civilians (Fisher 2011, p. 77ff.). But in espionage the actors are states rather than individuals – the individuals involved are merely agents of the state, and their actions must be judged accordingly; they cannot be judged according to a morality of individuals. Perhaps espionage is a permissible state action and its associated practices are permissible for voluntary agents of the state who play the relevant role.

In response, even if we grant that moral rules governing states must be distinguished from moral rules governing individuals, there are still reasons to reject espionage. Kant begins with the assumption that a rational nation is one that seeks to preserve peace between itself and other members of the international community. This, for Kant, is the first principle for the ethical conduct of nation states. War is permissible, but only as a defensive response to aggression on the part of another nation. With this framework in hand, he then writes, ‘[n]o state at war with another shall allow itself such acts of hostility as would have to make mutual trust impossible during a future peace; acts of this kind are employing assassins or poisoners, breach of surrender, incitement to treason within the enemy state, and so forth’ (Kant 1996b, p. 320). The problem with espionage, then, is that it undercuts the possibility of a lasting peace when hostilities cease. Later in the same discussion, Kant explicitly rejects espionage as an appropriate practice during peacetime:

[T]hose infernal arts, being mean in themselves, would not, if they came into use, be confined for long within the boundaries of war, as for example the use of spies, in which use is made only of others’ dishonesty (which can never be completely eradicated); instead, they would also be carried over into a condition of peace, so that its purpose would be altogether destroyed. (Kant 1996b, p. 320)

For Kant, the problem with espionage is that it undercuts the principal aim of interstate relationships, which is the cultivation and preservation of peace. Trust is a necessary condition for achieving this goal, and espionage (as opposed to ordinary intelligence gathering) is, by definition, a breach of that trust.

Espionage and consequentialism

Consequentialist approaches to normative ethics focus on the consequences of our actions: the better the result, the more ethical the action. The standard-bearer for consequentialism, John Stuart Mill, argued that we should define ‘good results’ in terms of ‘happiness’ (Mill 1993 [1871], p. 144). In our pursuit of happiness, we do not strive for immediate, individual satisfaction. Instead, the happiness we seek is a long-term, settled happiness for all. Happiness itself is not a subjective assessment of one’s mental state, but an objective condition: Mill defined happiness as ‘pleasure and the absence of pain’ (Mill 1993 [1871], p. 144). For Mill, the highest forms of pleasure are those associated with the exercise of our mental capacities, not those associated with the fulfilment of our appetite for physical pleasure. In this way, moral life in society is based upon removing impediments to happiness (for example, poverty and disease), where individuals can engage in projects that involve reason, imagination and sentiments, which contribute to an overall sense of tranquillity with occasional moments of excitement.

Many commentators argue that the best ethical justification for espionage is consequentialist in nature.⁶ Crudely put, insofar as the ends justify the means, the practices associated with espionage – such as theft, bribery, lying and blackmail – can be justified by the fact that these activities contribute to our national interests in security and defence.

Nevertheless, there are two problems with this line of reasoning. First, consequentialist moral judgments require at least some understanding of the various possible consequences of acting or not acting. But espionage aims to gather secret information, which means that the agent and her nation cannot be sure how useful the information they seek will actually be. As a result, it is very difficult to calculate the benefits of obtaining this information, and it is thus difficult to weigh these benefits against the costs associated with obtaining it. We can imagine cases, ...