The Ethics of Intelligence

A new framework

Ross W. Bellaby

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781135966614
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Intelligence & Espionage
• Index: Politics & International Relations

This book starts from the proposition that the field of intelligence lacks any systematic ethical review, and then develops a framework based on the notion of harm and the establishment of Just Intelligence Principles.

As the professional practice of intelligence collection adapts to the changing environment of the twenty-first century, many academic experts and intelligence professionals have called for a coherent ethical framework that outlines exactly when, by what means and to what ends intelligence is justified. Recent controversies, including reports of abuse at Guantanamo Bay and Abu Ghraib, allegations of extraordinary rendition programmes and the ever-increasing pervasiveness of the 'surveillance state', have all raised concerns regarding the role of intelligence in society. As a result, there is increased debate regarding the question of whether or not intelligence collection can be carried out ethically.

The Ethics of Intelligence tackles this question by creating an ethical framework specifically designed for intelligence that is capable of outlining under what circumstances, if any, different intelligence collection activities are ethically permissible. The book examines three of the main collection disciplines in the field of intelligence studies: imagery intelligence, signals intelligence and human intelligence. By applying the ethical framework established at the beginning of the book to these three important intelligence collection disciplines, it is possible to better understand the ethical framework while also demonstrating its real-life applicability.

This book will be of much interest to students of intelligence studies, ethics, war and conflict studies, security studies and IR.

Part ITHE ETHICAL FRAMEWORK

1 Harm, just war and a Ladder of Escalation

DOI: 10.4324/9780203383575-3

At the centre of the topic of ‘intelligence ethics’ is the tension between the belief that there are aspects of the intelligence business that seem ‘notably disreputable’ ¹ and the argument that without secret intelligence states cannot ‘understand sufficiently the nature of some important threats’. ² Indeed, during the last century intelligence has become one of the most vital tools a state has, especially given the diverse range of threats it can face. However, it can also be argued that the damage that intelligence can cause means that there should be limits on its use. Indeed, Michael Quinlan, David Omand and Michael Herman, all of whom have highly distinguished careers in intelligence, defence and government, have noted the ‘ethical baggage’ that intelligence collection carries with it and the need, therefore, to re-evaluate its role in society. ³

This chapter develops an ethical framework specifically designed to deal with this tension. Comprised of two different parts, the ethical framework balances the negative aspects of intelligence collection with the important role it plays in the political community. The first part of the chapter argues that in order to understand the negative aspects of intelligence we must understand the harm it can cause those targeted, the operative who carries out the action and even society as a whole.

Once the concept of harm is understood, the second part of the chapter outlines a set of Just Intelligence Principles to determine if and when these harms are justified. These principles are specifically designed to work with intelligence, though they incorporate the ethical reasoning found within the just war tradition and its principles of just cause, legitimate authority, right intention, last resort, proportionality and discrimination.

In the final section of this chapter, these two different parts of the ethical framework are brought together on a single Ladder of Escalation. This ladder is a conceptual tool designed to demonstrate how the two different aspects of the ethical framework relate to each other. By spreading the different intelligence collection activities up the metaphorical Ladder of Escalation it is possible to understand how the different intelligence collection activities relate to each other, as well as how their individual harms relate to the Just Intelligence Principles.

Primum non nocere – first, do no harm

The first step in establishing an ethic against harm begins with the realisation that all individuals have certain requirements that are both ‘vital’ to their well-being and vulnerable to external interference. These ‘vital interests’ are the prerequisites or preconditions that must be maintained if individuals are to fulfil their ultimate goals and aspirations. Joel Feinberg calls these requirements ‘welfare interests’ and John Rawls calls them ‘primary goods’ but essentially they amount to the same thing – regardless of what one's conception of ‘the good life’ might be, these preconditions must be first satisfied in order to achieve them. ⁴ Without these vital interests, no individual is able to pursue other ultimate interests, purposes, goals or plans. ⁵ 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, he can still be said to be harmed if the vital interests are violated or wronged. ⁶ In this way, these interests are a person's most significant needs and thus demand protection.

This is not totally unproblematic, however, especially in deciding what interests should be considered as universally vital and fundamental. Indeed, 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 should or should not be respected as valuable to the individual, especially since their content will vary greatly depending on one's culture. ⁷ Nevertheless, I argue that it is still possible to outline those interests that are vital to all humans, irrespective of what conception of the good life they may hold. It is possible to isolate those factors of central importance in any human life, regardless of what end the person chooses to pursue. For example, Martha Nussbaum argues that through a notion of overlapping consensuses it is possible to outline the core vital interests held by all individuals, identifiable ‘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’. ⁸ Therefore, these core interests can be determined by isolating those aspects of the human condition whereby the individual would be unable to continue with his higher or more ultimate wants if he did not have these interests maintained.

For example, being creatures of flesh and bone instantly ‘implies mortality, vulnerability’, ⁹ meaning that the need to protect the physical body as one of our most important and most obvious vital interests. Importantly, however, protecting the physical body is not all. It can be argued that the need for mental integrity, autonomy, liberty, a sense of self-worth and a degree of privacy are each vital in an individual's life. For instance, if an individual's mental integrity is damaged then he no longer has the capacity to continue or experience his life; if his autonomy is distorted or controlled then he is unable to formulate what he thinks his own life plan should be; if his liberty is restricted then he can no longer articulate plans; without a sense of self-worth he can become despondent and unwilling to continue with his plans; and finally if his privacy is unduly violated then the effect it can have – for example anxiety, distrust and the inability to freely express oneself – can prevent him from acting out his life. ‘Harm’, therefore, can be defined as the violation of an individual's most vital interests.

This concept of harm, however, is not a binary one whereby an individual exists in a state of un-harm and then is utterly destroyed when his vital interests are damaged. Rather, individuals can have their vital interests affected, violated or damaged to varying degrees. ¹⁰ Intuitively, there is already the sense that different activities will cause different amounts of harm. For example, it is natural to experience a longer term of isolation compared to a shorter term as more harmful to oneself. What will be argued here is that the level of harm caused is altered depending on the particular vital interest violated, the severity of the violation and the duration of the violation.

This first point is that, all other things being equal, some interests, such as physical and mental integrity, can take precedence over the other interests, like autonomy, liberty, self-worth or privacy. ¹¹ Isaiah Berlin declared that liberty and autonomy are not necessarily the first need of an individual: ‘the peasant needs clothing or medicine before, and more than, personal liberty.’ ¹² This is not to say that the other vital interests outlined above are not truly vital, for they are. If an individual is deprived of them he would then be unable to continue his life in any meaningful way. There must be, however, an understanding that if some interests, such as physical and mental integrity, are severely violated then an individual's interest in autonomy, liberty, self-worth or privacy can become redundant. There must be a base level of physical and mental integrity in order for the other vital interests to be realised. In addition, some of the intelligence collection activities might affect more than one of the vital interests, and in some instances one violation of an interest can have repercussions causing even more violations. In general, it can be argued that the greater the number of vital interests that are violated, the greater the level of harm caused.

‘Severity’ refers to the degree of the violation. The greater the extent to which the individual has his interest(s) violated, the greater the harm caused. This is because an individual's vital interests exist in many different forms and can be interfered with in different ways. For example, we are not free autonomous beings one minute and utterly subjugated the next for we can, and often do, fall under another's influence in various ways and to various degrees; we can experience a little bit of pain, stress or anxiety, or we can be completely debilitated by it, and everywhere in between; we can have our value degraded slightly or we can have it slowly eroded away; and we can have our privacy interfered with in lesser or greater areas of importance. By altering the severity of the violation one alters the level of harm caused.

Finally, the degree of harm can depend on the temporal quality of the activity: ‘being locked in the bathroom for 20 minutes is not a great harm, whereas being imprisoned for 20 years makes an important difference to a person's other interests.’ ¹³ This is because many transitory hurts do not harm us. They come, are felt, pass without leaving any mark, and are forgotten quickly. Over time, however, the building up or continuation of a violation can have profound effects on an individual's attempt to fulfil his needs and goals. Those violations that span greater amounts of time and become chronic distractions can begin to impede even those interests that are said to be timeless. Similarly, repetitive small violations can become increasingly harmful. For example, if acts of low severity become ‘prolonged, recur continuously or occur at strategically untimely moments’ they can become chronic distractions. ¹⁴

However, the point of ‘other things being equal’ indicates that the degree of harm caused is dependent on all three aspects being brought together. For example, saying that the interest in physical integrity is more important than autonomy is done while the severity and temporal quality of the violation are equal. It would be folly to argue that a prick on the finger is more harmful than being locked away for 20 years simply because it was a physical harm. Furthermore, vital interests make a chain whereby the whole chain is no stronger than its weakest link. ¹⁵ There are few trade-offs between the vital interests: an excess of one good will not necessarily make up for the lacking of another interest. For example, all the freedom in the world ‘will not help you if you have a fatal disease and great physical strength will not compensate for destitution or imprisonment’. ¹⁶ Furthermore it should be noted, as Feinberg does, that ‘bare minimum invasions of interests just above the threshold of harm are not the appropriate concern’. ¹⁷ That is, vital interests can be wronged in often quite insignificant ways while not really constitutin...