What's the Harm? The Ethics of Intelligence Collection

Abstract

As the professional practice of intelligence collection adapts to the changing environment and new threats of the twenty-first 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 justified. 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 first 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 justified. 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.

Notes

*Email: [email protected]¹Michael Quinlan, ‘Just Intelligence: Prolegomena to an Ethical Theory’, Intelligence and National Security 22/1 (2007) pp.1–13 at p.2.

²M. Andregg et al., ‘A Symposium on Intelligence Ethics’, Intelligence and National Security 24/3 (2009) pp.365–85; 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.195–215 (and Intelligence and National Security 19/2 (2004) pp.359–81); A. Gendron, ‘Just War, Just Intelligence: An Ethical Framework for Foreign Espionage’, International Journal of Intelligence and Counter-Intelligence 18/3 (2005) pp.398–434; D. Omand, ‘Reflections 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.1–15; Quinlan, ‘Just Intelligence’, pp.1–13.

³Intelligence and Security Committee, ‘Rendition’ chaired by Rt. Hon. Paul Murphy (July 2007) cm.7171 p.33, <http://www.fas.org/irp/world/uk/rendition.pdf>. Also see S. Grey, Ghost Plane: The True Story of the CIA Torture Program (New York: St. Martin's Press 2006) p.53.

⁴See K. Anderson ‘What to do with Bin Laden and Al Qaeda Terrorists?: A Qualified 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.591–635; J.S. Clover ‘“Remember, We're the Good Guys”: The Classification and Trial of the Guantanamo Detainees’, South Texas Law Review 45/1 (2003) pp.351–95; A. Dershowitz, Why Terrorism Works: Understanding the Threat, Responding to the Challenge (London: Yale University Press 2002).

⁵House of Lords: Select Committee on the Constitution, Surveillance: Citizens and the State 2nd Report of Session 2008–09 (February 2009) §70, 84, pp.20–2. Also see Sir Christopher Rose, Chief Surveillance Commissioner Report on Two Visits by Sadiq Khan MP to Babar Ahmad at HM Prison Woodhill, presented to Parliament by the Secretary of State for the Home Department (February 2008), Cmnd.7336.

⁶Parliamentary 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).

⁷D. 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.

⁸Quinlan, ‘Just Intelligence’, p.1.

⁹D. Omand, ‘Reflections on Secret Intelligence’, p.116.

¹⁰Thomas 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 first argument is based on the ontological justifications 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.

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 exploitation’, ‘analysis’, and ‘production and dissemination’. See Mark Lowenthal Intelligence: From Secrets to Policy (Washington, DC: CQ Press 2000) pp.40–52.

¹²J. Feinberg, Moral Limits of the Criminal Law: Vol.1 Harm to Others (Oxford: Oxford University Press 1984) p.37.

¹³Ibid.

¹⁴John Rawls, Theory of Justice (Cambridge, MA: Harvard University Press 1971) p.62.

¹⁵The 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.

¹⁶Feinberg, Harm to Others, p.35.

¹⁷John 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 confinement, 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.

¹⁸Martha Nussbaum, Women and Human Development: The Capabilities Approach (Cambridge: Cambridge University Press 2000) pp.73, 76.

¹⁹J. Butler, Precarious Lives: The Powers of Mourning and Violence (London: Verso 2004) pp.20, 26.

²⁰Nussbaum, Women and Human Development, p.72.

²¹Barry, Justice as Impartiality, p.88.

²²Elaine Scarry, The Body in Pain (New York: Oxford University Press 1985) p.45.

²³I. Goldstein, ‘Pleasure and Pain: Unconditional, Intrinsic Value’, Philosophy and Phenomenological Research 1/2 (1989) pp.255–76 at p.257.

²⁴Ibid., p.255.

²⁵Nussbaum, 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).

²⁶H. Frankfurt, ‘Freedom of the Will and the Concept of the Person’, Journal of Philosophy 68/1 (1971) pp.5–20 at p.7.

²⁷B. Herman, The Practice of Moral Judgement (Harvard University Press 1996) p.228.

²⁸S. Bok, Lying: Moral Choice in Public and Private Life (New York: Vintage Books 1979) p.19.

²⁹John 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.

³⁰Feinberg, ‘The Idea of a Free Man’, p.7.

³¹Violation of liberty implies the deliberate interference with one's 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 fly like an eagle or swim like a whale’. Berlin, ‘Two Concepts of Liberty’, p.122.

³²See 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).

³³Damaging an individual's 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.

³⁴J.P. Tangney and R.L. Dearing, Shame and Guilt (London: Guilford Press 2002) p.52.

³⁵Normally 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.

³⁶H.E. Baber, ‘How Bad is Rape’, Hypatia 2/2 (1987) pp.125–38 at p.126.

³⁷B.F. Mannheim, ‘Reference Groups, Membership Groups and the Self Image’, Sociometry 29/3 (1966) pp.265–79 at p.266.

³⁸M.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.

³⁹A.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.7–29; J. Reiman, ‘Privacy, Intimacy, and Personhood’, Philosophy and Public Affairs 5/1 (1976) pp.26–44 at p.42. For ‘selective disclosure’ see C. Fried, ‘Privacy: A Moral Analysis’, Yale Law Review 77/1 (1968) pp.475–93; 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.22–42 at p.34.

⁴⁰L. Brandeis and S. Warren, ‘The Right to Privacy’, The Harvard Law Review 4/5 (1980) pp.193–220. For examples of contemporary theorists who define 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.182–98; M. Konvitz, ‘Privacy and the Law: A Philosophical Prelude’, Law and Contemporary Problems 31/2 (1966) pp.272–80 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 Conflict in Values’, New York Law Forum 20/3 (1975) pp.453–514 at p.455.

⁴¹Fried, ‘Privacy’, p.475.

⁴²H. Gross, ‘Privacy and Autonomy’ in Pennock and Chapman (eds.) Nomos XIII, p.169.

⁴³E. Shils, ‘Privacy: Its Constitution and Vicissitudes’, Law and Contemporary Problems 31/2 (1966) p.281–306 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.295–314.

⁴⁴W.A. Parent, ‘Privacy, Morality and the Law’, Philosophy and Public Affairs 12/4 (1983) p.267.

⁴⁵See Westin, Privacy and Freedom (1967), p.34; D. Bazelan, ‘Probing Privacy’, Georgia Law Review 2/1 (1997) pp.587–621 at p.588; Weinstein, ‘The Uses of Privacy in the Good Life’, p.99.

⁴⁶It 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.

⁴⁷Lowenthal, Intelligence: From Secrets to Policy, p.71.

⁴⁸This 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.

⁴⁹D. Kahn, The Reader of Gentlemen's Mail: Herbert O. Yardley and the Birth of American Codebreaking (London: Yale University Press 2004) p.101.

⁵⁰House of Lords: Select Committee on the Constitution, Surveillance: Citizens and the State, 2nd Report of Session 2008–09 (February 2009) §85 p.23. See Christopher Northcott, ‘The Role, Organisation and Methods of MI5’, International Journal of Intelligence and Counterintelligence 20/3 (2007) pp.453–79; R.E. Morgan, Domestic Intelligence: Monitoring Dissent in America (Austin, TX: University of Texas Press 1980).

⁵¹The 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 individual's 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 profile so as to predict a person's future actions or locate specific individuals. See J.X. Dempsey and L.M. Flint, ‘Commercial Data and National Security’, The George Washington Law Review 72/1 (2004) pp.1459–502 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). TIA's 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 Profiling: Emerging Regulatory and Technological Approaches’, The University of Chicago Law Review 75/1 (2008) pp.261–86 at p.271; Solove, The Digital Person, p.263.

⁵²M. Foucault, Discipline and Punish: The Birth of the Prison (Harmondsworth: Penguin 1979) p.202.

⁵³J.S. Bybee, ‘Memorandum for Alberto R. Gonzales Counsel to the President’, U.S. Department Justice Office of Legal Counsel, 1 August 2002, <http://www.washingtonpost.com/wp-srv/nation/documents/dojinterrogationmemo20020801.pdf> (accessed 23 April 2006).

⁵⁴A. Tagbua, Article 15-6 Investigation of the 800th Military Police Brigade [The Taguba Report] (4 June 2004) p.17 §8, <http://www.npr.org/iraq/2004/prison_abuse_report.pdf> (accessed 1 May 2007).

⁵⁵M. Danner, Torture and Truth: America, Abu Ghraib and the War on Terror (London: Granta Books 2005) p.6.

⁵⁶D. Sussman, ‘What's Wrong with Torture?’, Philosophy and Public Affairs 33/3 (2005) pp.1–33 at p.22.

⁵⁷For accounts of the power of pain see E. Scarry, The Body in Pain, pp.45–51 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.

⁵⁸W. Twining and B. Paskins, ‘Torture and Philosophy’, The Proceedings of the Aristotelian Society 52 (1978) pp.143–94 at p.166.

⁵⁹Berlin 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 first need of an individual. Berlin, ‘Two Concepts of Liberty’, p.124.

⁶⁰Feinberg, Harm to Others, pp.45–6.

⁶¹Ian Clark, Waging War: A Philosophical Introduction (Oxford: Clarendon Press 1988) p.31.

⁶²B. 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.

⁶³Orend, Morality of War, p.9.

⁶⁴T. 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.

⁶⁵For 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.

⁶⁶United Kingdom, Security Service Act 1989 §1(2).

⁶⁷Aquinas, ‘From Summa Theologiae’, p.214.

⁶⁸Ibid.

⁶⁹D. 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.

⁷⁰Wiretaps 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, §6(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’, §101–105.

⁷¹See J. Thomson, ‘The Trolley Problem’, in William Pereni (ed.) Rights, Restitution and Risk (Cambridge: Harvard University Press 1986) pp.101–2; T.M. Scanlon and J. Daney, ‘Intention and Permissibility’, Supplement to the Proceedings of the Aristotelian Society 74/1 (2000) pp.301–17.

⁷²D.P. Lackey, The Ethics of War and Peace (London: Prentice Hall International 1989) p.32.

⁷³Aquinas, ‘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 § 16(8).

⁷⁵R. Stone, The Law of Entry, Search and Seizure (Oxford: Oxford University Press 2005) p.171.

⁷⁶Obviously, there might be some difficulty proving that the officer was using the power of the warrant for an ulterior motive sometimes, but given that the intent is reflected 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 find evidence of the fraud in places where they might find drugs. See D. Feldman, The Law Relating to Entry, Search and Seizure (London: Butterworths 1986) p.171.

⁷⁷Moreover, 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).

⁷⁸R.B. Miller, Interpretations of Conflict, Ethics, Pacifism and the Just War Tradition (Chicago, IL; London: University of Chicago Press 1991) p.14.

⁷⁹R. Phillips, War and Justice (Norman, OK: University of Oklahoma Press 1984) p.14.

⁸⁰A.J. Bellamy, Just Wars: From Cicero to Iraq (Cambridge and Malden, MA: Polity Press 2006) p.123.

⁸¹See 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).

⁸²K. 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.

⁸³Carl von Clausewitz, On War, ed. and trans. Michael Howard and Peter Paret (Princeton, NJ: Princeton University Press 1989) p.76.

⁸⁴Bellamy, Just Wars, p.123.

⁸⁵Geneva 1949; 1977 Geneva Protocol II Additional to the Geneva Convention of 1949: The Protection to of Victims of Armed Conflicts 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.233–5; also Norman, Ethics, p.168; J. McMahan, ‘Innocence, Self-Defence and Killing in War’, The Journal of Political Philosophy 2/1 (2006) pp.193–221 at p.193.

⁸⁶M. Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (New York: Basic Books 2000) p.145.

⁸⁷Pfaff and Tiel, ‘The Ethics of Espionage’, p.6.

⁸⁸Walzer, Just and Unjust Wars, pp.145–6.

⁸⁹Quinlan, ‘Just Intelligence’, p.12.