Principled Spying

The Ethics of Secret Intelligence

David Omand, Mark Phythian

• Publisher: Georgetown University Press
• Year: 2018
• ISBN:
  9781626165618
• Topic: Politics & International Relations
• Subtopic: Intelligence & Espionage
• Index: Politics & International Relations

Intelligence agencies provide critical information to national security and foreign policy decision makers, but spying also poses inherent dilemmas for liberty, privacy, human rights, and diplomacy. Principled Spying explores how to strike a balance between necessary intelligence activities and protecting democratic values by developing a new framework of ethics.

David Omand and Mark Phythian structure this book as an engaging debate between a former national security practitioner and an intelligence scholar. Rather than simply presenting their positions, throughout the book they pose key questions to each other and to the reader and offer contrasting perspectives to stimulate further discussion. They demonstrate the value for both practitioners and the public of weighing the dilemmas of secret intelligence through ethics. The chapters in the book cover key areas including human intelligence, surveillance, acting on intelligence, and oversight and accountability. The authors disagree on some key questions, but in the course of their debate they demonstrate that it is possible to find a balance between liberty and security. This book is accessible reading for concerned citizens, but it also delivers the sophisticated insights of a high-ranking former practitioner and a distinguished scholar.

1

Thinking about the Ethical Conduct of Secret Intelligence

Mark Phythian: Those setting out to think about the relationship between ethics and secret intelligence are immediately confronted with a serious problem—the absence of a clear framework within which to proceed. The starting point in the construction of a framework needs to be the concept of intelligence itself. As the study of intelligence has developed, a range of definitions have been offered. Some are pithy but consequently partial; some others are elaborate but fail to capture the essence of their subject. There is at present no consensus over how intelligence can best be defined. One of the better shorter approaches involves the idea that intelligence is about stealing secrets. As former US director of central intelligence George Tenet explained in a 1998 interview, “Let’s be blunt about what we do. There is no dishonor in it. We steal secrets for a living. If we do not steal secrets for a living, then we ought to shut the doors and do something else for a living.”¹ Definitions are, of course, significant to any discussion of the relationship between ethics and intelligence because they determine the boundaries of the subject. Writing during the interregnum between the Cold War and the “war on terror,” Michael Herman offered the view that “intelligence is information and information gathering, not doing things to people; no one gets hurt by it, at least not directly. Some agencies do indeed carry out covert action, which confuses the ethical issues, but this is a separable and subsidiary function.”² Whether covert action is regarded as part of intelligence or as something separate clearly impacts the ethical landscape we are considering.

One thing both definitions have in common is that they treat intelligence as a process; however, it is important not to lose sight of the functional dimension of intelligence. One should not only focus on what intelligence does but also think about its purpose—that is, why it gathers information or steals secrets—and in so doing consider the context from which this functional requirement arises. Peter Gill and myself have offered a definition of intelligence as “the mainly secret activities—targeting, collection, analysis, dissemination and action—intended to enhance security and/or maintain power relative to competitors by forewarning of threats and opportunities.”³ This definition has the advantage of bringing together process, function, and context. It also emphasizes the reality that the environments in which intelligence is required are fundamentally competitive ones.

All three of these definitions contain elements that hint at the ethical tension at the heart of the practice of intelligence. At its most basic level, intelligence involves theft, or acquiring things whose owners do not want them shared. Some consider the implications of whether covert actions, or “doing things to people,” are part of intelligence, and how far the function of intelligence and the context in which it operates impose limits that mark intelligence as a special realm where ethical guidelines that would otherwise apply can be suspended or are considered irrelevant. In addition, the third definition introduces the potential for intelligence to have not only a defensive purpose but also an offensive one, reflecting the reality that throughout history the international system has contained what realist scholars have termed status quo states, or those that seek to preserve the existing international system and its distribution of power, and revisionist states, or those that are dissatisfied with the existing international order and seek to change it.⁴

In this opening section I want to focus on intelligence as a function of the state and argue that this generates an inherent, and so inescapable, ethical tension. Moreover, such a focus on the relationship between intelligence, the state, and the citizen provides a framework from which we can navigate the various shores of the ethics-intelligence debate. At the international level the ethics-intelligence tension is rooted in understandings of the nature of the international system that are shared, either explicitly or implicitly, by intelligence professionals and that are essentially neorealist in character. The core principle from which they have proceeded is that the international system is anarchic. In this context states can never be certain about other states’ intentions; thus, states must provide for their own security. Alliances can be useful, but they can only ever be marriages of convenience. History shows that “today’s alliance partner might be tomorrow’s enemy, and today’s enemy might be tomorrow’s alliance partner.”⁵ This logic even extends to states whose foreign relations were formally guided by Marxism rather than neorealism. As Soviet colonel Oleg Penkovsky of the Main Intelligence Directorate (Glavnoye Razvedyvatel’noye [GRU]) explained in the 1960s, “We are engaged in espionage against every country in the world. And this includes our friends, the countries of the people’s democracies. For, who knows, some fine day they may become our enemies. Look what happened with China!”⁶ This state of affairs, with low or qualified trust, gives rise to the requirement for national security intelligence in the first place to reduce uncertainty, improve understanding, and so aid timely and effective decision-making. Numerous memoirs by US intelligence professionals attest to the prevalence of this understanding of the operating environment, its implications for their role as the early warning arm of the United States, and, in some cases, how it impacted the framing of ethical considerations.⁷

As a number of these memoirs also indicate, exceptional times have been considered to legitimate exceptional responses in defense of the state, even where they existed in tension with deeply entrenched norms. In the aftermath of the 9/11 terrorist attacks, it was widely believed that the requirements of US security needed redefining and that US intelligence would have an offensive, or frontline, role in this effort.⁸ In his 1985 memoir, Secrecy and Democracy, former US director of central intelligence Stansfield Turner directly addressed a question that this post-9/11 approach begs regarding whether “those who are well informed about the threats posed to our country should make ethical decisions on behalf of the citizenry, not merely reflect the opinion of less informed citizens.”⁹ Turner thought not and, writing after the hearings of the Senate’s 1975–76 Select Committee to Study Governmental Operations with Respect to Intelligence Activities (Church Committee), argued that “there is one overall test of the ethics of human intelligence activities. That is whether those approving them feel they could defend their decisions before the public if the actions became public.”¹⁰ In terms of liberal democratic values, his position was a significant advance on what the former counterintelligence head of the Central Intelligence Agency (CIA) James Jesus Angleton had offered the Church Committee: it was “inconceivable that a secret intelligence arm of the government has to comply with all the overt orders of the government.”¹¹ However, Turner’s stance was still a limited concession to public opinion and normative values, and he was clear about what he was not saying: “This guideline does not say that the overseers should approve actions only if the public would approve of them if they knew of them. Rather, it says that the overseers should be so convinced of the importance of the actions that they would accept any criticism that might develop if the covert actions did become public, and could construct a convincing defense of their decisions.”¹² What Turner was proposing here was essentially a national interest test that attached a high value to questions of national security and citizen protection—which is the job, after all, of national intelligence agencies and the purpose of state investment in intelligence—and that, in turn, informed the price it was considered worth paying in ethical terms. Thus, the national interest test (or Stansfield Turner test) was one governed by a utilitarian ethic.

However, even as Turner was writing his memoirs, a broader normative development—that is, the rise of the ideology of universal human rights—was challenging its core state-centric logic. Until the 1970s and despite the rhetorical promise of the Universal Declaration of Human Rights of 1948, the advent of the Cold War and post-1945 wars of decolonization had worked against the development of an international agenda around individual human rights. In the West the ideology of anti-communism exerted a far stronger pull than that of human rights. In this context, the concept of national security, based around the need to “protect core values from external threats,” did not necessarily require the advancement of those same values abroad.¹³ Instead, it was held to justify a range of secret wars, assassination attempts, and other ethically dubious enterprises involving intelligence organizations—principally the CIA—in what former US secretary of state Dean Rusk termed “the back alleys of the world.”¹⁴ The second Hoover Commission in 1954 provided perhaps the clearest contemporaneous statement of what this meant for US intelligence and for the ethical conduct of intelligence:

It is now clear that we are facing an implacable enemy whose avowed objective is world domination by whatever means and at whatever cost. There are no rules in such a game. Hitherto acceptable norms of human conduct do not apply. If the U.S. is to survive, long-standing American concepts of “fair play” must be reconsidered. We must develop effective espionage and counterespionage services. We must learn to subvert, sabotage and destroy our enemies by more clever, more sophisticated and more effective methods than those used against us. It may become necessary that the American people will be made acquainted with, understand and support this fundamentally repugnant philosophy.¹⁵

Thus, the ends justified the means. However, understandings of human rights and the importance attached to the idea of universal human rights had evolved by the late 1970s to bring them closer to the formulation contained in the Universal Declaration of Human Rights. The consensus underpinning the Cold War liberalism of the 1950s and 1960s was shattered by the US military commitment in Vietnam. The erosion of popular support for the Cold War variant of liberalism, with its emphasis on a global competition in which liberal standards (the “hitherto acceptable norms of conduct,” in the words of the Hoover Commission) could be compromised, created a space that was filled by the ideology of human rights. They came to be understood “as entitlements that might contradict the sovereign nation-state from above and outside rather than serve as its foundation.”¹⁶ Thus, individual human rights transcended states; neither state given nor state defined, they instead existed independently of states. Further, states had an obligation not only to avoid engaging in activities that would infringe on these rights but also to intervene where these rights were being denied or seriously compromised by other states. The broadly concurrent development of international law provided a framework for promoting and protecting human rights. These developments posed a challenge for Western intelligence agencies with fundamentally neorealist understandings of the international system and with Cold War mind-sets.

The source of the ethics-intelligence tension at the international level, then, is clear. In the context of what is understood by intelligence professionals to be an anarchic, self-help international system, it arises from the clash between the pursuit of national security and the development of expectations around universal human rights that are underpinned by international human rights law. In short, national intelligence agencies are precisely that, national. Their primary responsibilities and obligations are understood to be to the state, but they are also bound by wider obligations. Pursuing the former can result in ethical tension in relation to observing the latter, a possibility heightened at times that are held to be exceptional and/or in the context of more offensive intelligence strategies. How far can, or should, states combine a national interest focus with respect for wider norms in the conduct of intelligence? What will determine the limits of the feasible here, and who should determine them? Do times of exception justify abrogating from commitments to wider normative values in pursuit of intelligence? Questions such as these became pressing in the post-9/11 context and still require further thought.

The state is most usually conceptualized as operating at two levels—the domestic and the international—however, globalization eroded this simple binary distinction. Although intelligence structures were often slow to adapt to the changed realities of a rapidly globalizing environment, much contemporary intelligence work is “intermestic” in character; that is, in the context of risk and threat development, the international and domestic levels exhibit considerable degrees of convergence and so are intermeshed. In terms of the security and ethical dilemmas that have accompanied its growth, the Internet constitutes the intermestic phenomenon par excellence. Conceptualizing this intermestic space as an increasingly ragged frontier, US political scientist James N. Rosenau explained it in terms of an international system, where “state sovereignty has been eroded, but it is still vigorously asserted. Governments are weaker, but they can still throw their weight around. . . . Borders still keep out intruders, but they are also more porous. Landscapes are giving way to ethnoscapes, mediascapes, ideoscapes, technoscapes and finanscapes, but territoriality is still a central preoccupation for many people.”¹⁷ This, then, is not simply to point out that the international and national are linked and that the international plays a role in shaping the domestic, even though this reality has been a feature of state security concerns in England from at least the age of Elizabeth I, through the post-1917 focus on left-wing domestic subversion that was largely held to justify the existence of the Security Service (MI5) for much of its history, and to the post-9/11 focus on Islamist terrorism.¹⁸ This inevitably involves a focus inside the state on residents and citizens, and as such the ethical dilemmas it raises can be somewhat different from those that exist at the international level.

At this domestic level the ethics-intelligence tension needs to be understood in relation to the question (or problem) of the state. There are even more approaches to defining the state than there are to defining intelligence, but one of the most enduring, and one on which much subsequent scholarship in the field is based, is that provided by the German sociologist Max Weber. His original 1919 definition held that a state could be considered to exist “if and insofar as its administrative staff successfully upholds a claim on the monopoly of the legitimate use of violence [das Monopol legitimen physischen Zwanges] in the enforcement of its order.”¹⁹ Political theorist John Hoffman has suggested that the implication of this view is that “the very need to exercise a monopoly of legitimate force arises only because states are challenged by rebels and criminals who themselves resort to force, and who (either implicitly or explicitly) contest the legitimacy of the laws they break. . . . The state which actually succeeds in imposing a monopoly of legitimate force thereby makes itself redundant since a gulf between ideals and reality is essential to the state’s very raison d’être.”²⁰

In other words, the fate of the state is to assert its monopoly but, in light of the inevitable challenges it must constantly face, never fully achieve it.²¹ For example, all states face potential challenges from those who contest their territorial claims and reject the territorial identity ascribed to them. In addition, individual policies—whether economic, political, or ethical—can all result in challenges to this claim to legitimacy. This situation creates a tension that is particularly acute in the contemporary liberal state. Here, as in all states, it generates a requirement for domestic security intelligence, which, in turn, constitutes a recognition that the state will potentially always face challenges to its legitimacy. Just as in the international sphere, the future is uncertain domestically as well, and the state must be capable of providing for its own security. Not only are states uncertain as to whether they will face future challenges, but also their investment in domestic intelligence can be seen as a clear indication that they expect them. Levels of trust, it seems, are low here as well as at the level of the international system, and the extent to which they may have been lowered further over recent decades may be attributed to the growth of the intermestic space or frontier.

In a sense, then, domestic intelligence is a functional response to the problem of state legitimacy. To reiterate, the problem is that while legitimacy is regarded ...