National Security Intelligence and Ethics

Seumas Miller, Mitt Regan, Patrick F. Walsh, Seumas Miller, Mitt Regan, Patrick F. Walsh

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000504453
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Intelligence & Espionage
• Index: Politics & International Relations

This volume examines the ethical issues that arise as a result of national security intelligence collection and analysis.

Powerful new technologies enable the collection, communication and analysis of national security data on an unprecedented scale. Data collection now plays a central role in intelligence practice, yet this development raises a host of ethical and national security problems, such as privacy; autonomy; threats to national security and democracy by foreign states; and accountability for liberal democracies. This volume provides a comprehensive set of in-depth ethical analyses of these problems by combining contributions from both ethics scholars and intelligence practitioners. It provides the reader with a practical understanding of relevant operations, the issues that they raise and analysis of how responses to these issues can be informed by a commitment to liberal democratic values. This combination of perspectives is crucial in providing an informed appreciation of ethical challenges that is also grounded in the realities of the practice of intelligence.

This book will be of great interest to all students of intelligence studies, ethics, security studies, foreign policy and international relations.

The Open Access version of this book, available at www.taylorfrancis.com, has been made available under a Creative Commons Attribution-Non Commercial-No Derivatives 4.0 license.

Part I

The just intelligence model

1

Intelligence and the just war tradition

The need for a flexible ethical framework

Ross Bellaby

DOI: 10.4324/9781003164197-3

Introduction

It is impossible to think of one “just war doctrine”, with a single point of lineal development from a single idea. Rather, “just war” is better thought of as a set of “recurrent issues and themes in the discussion of warfare … reflecting a general philosophical orientation towards the subject” (Clark 1988, 31) – a collection of underlying ethical arguments that have evolved over time in response to security challenges. As a broad body of thought the just war tradition “remains one of the most popular frameworks for evaluating the morality of war and warfare” (Fitzsimmons 2015, 1069);¹ influencing and becoming reflected in political rhetoric and legal cannon.² Indeed, many theorists have adapted the just war tradition to tackle emerging ethical-security problems of the day, from acts of terrorism and counter-terrorism policy,³ drone warfare,⁴ biosecurity,⁵ private military companies⁶ and civil wars.⁷

For intelligence the ethical dilemma faced includes recognizing and reconciling that it necessarily includes practices that “unavoidably entail doing something that is seriously contrary to the moral rules accepted as governing most human activity” (Quinlan 2007, 2) with the argument that without secret intelligence states cannot “understand sufficiently the nature of some important threats” (Omand 2007, 116). That on the one hand it can be argued that over the last century intelligence has become one of the most vital tools a political community has in providing timely information designed to serve and protect its members and, as such, represents an ethical good. While on the other hand, it can also be argued that secret intelligence often necessarily involves violating people’s vital interest in privacy and autonomy and so there should be limits on its use. There is a need, therefore, for an ethical framework that can evaluate and reconcile these two tensions, offering both a limitation on the harm that is caused by intelligence collection, while also outlining exactly when this harm is justified. By establishing the criteria of just cause, legitimate authority, right intention, last resort, proportionality and discrimination, it can be argued that the harm intelligence can cause is limited while also outlining if and when its use is justified.

There are, however, some key concerns levied at using the just war tradition as a basis for developing an ethical framework for intelligence. Key amongst them is that intelligence is not a war. That is, a lot of what intelligence does focuses on domestic surveillance with activities closer to police work; it is not on a battlefield, weighing up the costs of killing the soldier in front of you, but rather involves extensive and systematic collection of data. Intelligence is not necessarily about examining the ethical cost of killing an individual in order to protect one’s own or another’s life. It is about data collection and analysis in order to prevent threats from actually causing significant harm to another. For some, therefore, it is better if intelligence was located within the political as compared to the security sphere, where questions on its activity should reflect existing domestic oversight structures. There are concerns that equating intelligence with war makes its activities too permissive; the supreme emergency often associated with war heightens the pressure to act and lowers the ethical threshold, making it an ill fit for a broad set of activities which are often carried out in times of peace and against one’s own population.

However, while intelligence is not war, it is also not police work. Indeed, although it is actually difficult to place a clear set of boundaries around what intelligence is – as it ranges from data collection and analysis to more active forms of paramilitary operations – intelligence is quintessentially an activity that concerns itself with “national security”, dealing with threats greater in their impact both in terms of areas of national importance and number of people affected. It is tasked with detecting threats that can represent a significant harm to a large number of individuals and works within the national security infrastructure to provide security to the community as a whole. The argument put forward here, therefore, is that by looking at the underlying tensions presented by intelligence activity and the justifications found within the just war tradition a set of specialized just intelligence principles can be established.

Indeed, on a theoretical level the just war tradition gives an important starting point in the need to understand the fundamental harm caused to the individual – that is, the impact it has on our most fundamental vital interests – and how this relates to the harm that the national security agenda is seeking to prevent. Just as the just war tradition recognizes a general presumption against killing to be justified within a set of given limits, the impacts of secret keeping on people’s autonomy and other vital interests means there is also a general presumption against secrecy unless a direct justification is given (Calhoun 2001). The tradition then invites us to break down the justification into a set of ethical sub-questions and debates to be had that, in combination, provide an extensive understanding as to whether the act is just or not. These criteria are well versed in dealing with the types of ethical debates that are raised in the security sphere, drawing on both absolutist and utilitarian questions and concerns. For example, the principle of just cause asks us to consider the underlying reason given for why the harm is justified, drawing on wider ethical arguments on self-defence and the duty of the state to protect the political community, explored through hypotheticals and real-life or historical cases to understand what reasons are justifiable for different acts. The principle of legitimate authority places the political community at the centre, challenging both oversight internal to the intelligence community and those external structures that are pulled into the protective shield of secrecy to lose much of their potency. While the principle of proportionality delineates what costs and benefits should be included in the calculation and ensures that the overall benefit is in the positive, the principle of discrimination seeks to distinguish the rights and obligations the state has to different groups of people, outlining who is a legitimate target and who is protected. Not only does the just war tradition direct us to ask certain ethical questions that are relevant in the security world but it also establishes a body of thought to guide the types of debates we should be having, and the variety of answers available to us.

One important difference, however, between war and intelligence is that in the former there is a sharp distinction between the justice of going to war, jus ad bellum, and the justice of actions within war, jus in bello. This distinction does not work when we consider cyber-intelligence collection. There is not the same division between evaluating and sanctioning the general act of intelligence collection and the carrying out of the variety of acts under this authorization that is seen with war. There is no “time of war/time of peace” distinction for intelligence, but rather operations are running continuously. So, with intelligence, the evaluation must be done continuously, whereby each operation must fulfil all the just cyber-intelligence principles described later, with an operation being sanctioned according to who is being targeted, taking into account whether there is a specific just cause for the operation, ensuring that there is a right intention, and that the method chosen is proportionate the proposed gains.

Adapting just war for just intelligence

Reconceptualizing the idea of security

In order to create this new ethical framework how we conceive of “security” needs reconceptualizing. While Zedner is correct in that security is another “promiscuous concept” (Zedner 2009, 9) – ranging in content, referent object and means of provision⁸ – the value of security, and from there the right or expectation to have security, for this chapter is directly linked to the value that an individual has in maintaining their vital interests.⁹ That is, security is the condition by which one’s vital interests are maintained and protected. This means contemplating security as the processes and protections designed to maintain people’s vital interests. For example, at its core the vital interest in maintaining one’s physical integrity gives rise to the understanding of security as personal safety, thus “usually understood to refer to the protection against physical or other harm” and to provide security therefore includes “the prevention of or resilience against deliberate attack” (Schneier 2006, 12).¹⁰ Or, in terms of privacy, security refers to the protections one has, both physically and symbolically, that prevent outsiders from intruding on private spaces or accessing personal information without authorization.

Security is therefore not separate from people’s interests, but an overarching formula by which they are ensured, and the role of the state is to negotiate the tensions between the various vital interests and seek to provide the necessary protections so that individuals can fulfil their own version of the good life. The provision of security means understanding the complex interrelation between an individual’s vital interests and offering them the necessary protections, and that harming someone is the way and degree to which these vital interests are violated. What this understanding provides is a way of detailing the impact, or harm, that intelligence can have on individuals, which can then be reconciled with the threat the intelligence community is seeking to prevent. Importantly, this means that security and human rights are not opposing attributes to be “balanced” against each other but are different aspects of the same phenomenon. Indeed, narratives that portray security and liberties as opposing qualities that must be traded or balanced, while pervasive, are dangerous (Waldron 2003; Pozen 2015; McArthur 2001). By framing it as a trade-off between privacy and security, where you can have either security or privacy but not both and, importantly, where security is seen as a trump card (Thompson 2001; Dragu 2011; Bambauer 2013),¹¹ it is not surprising that “After 9/11 countries around the globe unhesitatingly adopted policies to enhance their government’s capacity to prevent terrorism … at the expense of individual civil liberties” (Dragu 2011).¹² While Jeremy Waldron warns that even these framings are problematic in terms of unequal distribution of the tradeoff, unclear returns for any given exchange and the problem of trading liberties at will (Waldron 2003), it is argued here that these framings fail to see how the matrix of vital interests should be taken as a whole, viewed holistically in order to provide an individual with enough of his vital interests that he can carry out his goals, and therefore be deemed secure. This means that “the overlapping or even isomorphic relationship between privacy and security is far more subtle than it might be imagined and cannot be glossed over by a rhetoric of ‘opposed’ rights or values of security and privacy” (Raab 2017).

Therefore, it is important to understand the harm that an intelligence activity represents through its aim of providing security to people so that this can be reconciled with the harm that it seeks to prevent by forestalling a threat from being realized. As a process this means, first, recognizing that while some vital interests such as physical and mental integrity might appear to take precedence over the other interests such as autonomy, liberty, self-worth or privacy, they should be taken together as a complex matrix that all need to be maintained.¹³ That in maintaining the security of the individual an excess of one vital interest will not necessarily make up for the lacking of another interest: an excess of physical security cannot be used as a justification for undermining people’s privacy; it cannot be argued that people are physically very safe in exchange for having no privacy (Feinberg 1984, 37; Rescher 1972, 5).

Secondly, in making this calculation, it is important to understand that these vital interests are not binary, whole one minute and utterly destroyed the next, but exist to varying degrees given the context. The negotiation therefore involves understanding which and to what extent both the state and a perpetrator are threatening vital interest(s). For example, privacy can be perceived as consisting of different levels where the more personal or intimate the information, the greater the expectation of privacy (Marx 2004, 234; Von Hirsch 2000). Therefore, there must be a greater threat to someone’s other vital interests to justify the privacy intervention. Part of this negotiation is understanding whether the target has acted in some way so as to waive or forfeit their immediate vital interests, the potential threat to other people’s vital interests represented by the aggressing actor and that the state is itself not representing the greater threat to our vital interests.

Proportional problems and proportional responses

I have spoken elsewhere about a metaphorical “ladder of escalation” which can be used to separate out different intelligence collection activities according to the harm they cause, which can be set against the level of threat they seek to prevent. This flexibility allows for a differentiation across the lar...