Intelligence by consent: on the inadequacy of Just War Theory as a framework for intelligence ethics

Abstract

This article contributes to the current discussions concerning an adequate framework for intelligence ethics. The first part critically scrutinises the use of Just War Theory in intelligence ethics with specific focus on the just cause criterion. We argue that using self-defence as justifying cause for all intelligence activities is inadequate, in particular in relation to the collection and use of intelligence for preventive purposes. In the second part of the paper, we tentatively suggest an alternative moral framework for preventive intelligence, understood as intelligence activities with no specific suspicion or aggressor. We suggest that the moral permissibility of such activities requires a civilised moral framework, in which openness, transparency and informed consent constitute crucial elements.

Acknowledgements

We are very thankful for valuable comments on previous versions of the article from the participants at the research seminar: ‘The Ethics of Intelligence’ organized by the Interdisciplinary Ethics Research Group at University of Warwick the 6th of May 2016. Additionally, we are grateful for most helpful comments from the participants at the research seminar concerning the same topic organized by the Centre for Advanced Security Theory, at the University of Copenhagen, the 25th of May 2016. Finally, we are thankful for most helpful advice from the two reviewers.

Notes

1. Ratcliffe, Intelligence-led Policing; and den Boer, “Intelligence-led Policing in Europe”.

2. Phythian, “Policing Uncertainty”, 196.

3. The term intelligence can in Sherman Kent’s words denote an activity, an organisation, or a product. In this paper, we mainly use the term to denote an activity, typically performed by specific organisations producing specific products. Our working definition of intelligence is therefore close to the one proposed by Gill and Phythian, who define intelligence as ‘the mainly secret activities – targeting, collection, analysis, dissemination and action – intended to enhance security and/or maintain power relation relative to competitors by forewarning of threats and opportunities’ (Gill and Phythian, Intelligence in an Insecure World, 19). We thus refer mainly to the activities connected to intelligence collecting since these activities constitute the main focus in the existing literature on intelligence ethics. Moreover, intelligence collection is generally regarded as entailing the clearest infringements of e.g., the privacy rights of the targets and thus poses ethical questions.

4. Gendron, “Just War, Just Intelligence”; Quinlan, “Just Intelligence: Prolegomena to an Ethical Theory”; Omand, “Can we have the Pleasure of the Grin without Seeing the Cat?”; Omand and Phythian, “Ethics and Intelligence: A Debate”; and Bellaby, “What’s the Harm?”.

5. Pfaff and Tiel, “The Ethics of Espionage”.

6. Macnish, “Just Surveillance?”.

7. Macnish, “Just Surveillance?”, 142, 143.

8. Omand and Phythian, “Ethics and Intelligence: A debate”, 42.

9. Frowe, The Ethics of War and Peace, 3; Walzer, Just and Unjust Wars; and McMahan, Killing in Wars.

10. Frowe, The Ethics of War, 101.

11. Quinlan, “Just Intelligence: Prolegomena to an Ethical Theory”, 3.

12. Bellaby, “What’s the Harm?”, 109.

13. Bellaby, “What’s the Harm?”, 109.

14. Bellaby, “What’s the Harm?”, 110, our emphasis.

15. Bellaby, “What’s the Harm?”, 109.

16. Bellaby, The Ethics of Intelligence, 171.

17. In many cases, there is no clear organisational distinction between intelligence agencies and security services, and a specific organisation may perform tasks related to both of these functions. In such cases, intelligence agencies may, of course, cause harms that are more tangible, as it were, than the more intangible type of harm caused by being under surveillance. In this paper, we shall focus exclusively on the latter type of harm.

18. Ibid., 104.

19. Kleinig, “The Ethical Perils of Knowledge Acquisition”, 202.

20. For example, the differences between ‘conventional surveillance’ such as wiretapping and other items of intelligence such as counter-intelligence activities, covert action, and bulk data collection, just to mention some of the various types of intelligence activities.

21. Phythian suggests a similar division of intelligence actions in a continuum dependent on the epistemic status of intelligence services from cases of ignorance – uncertainties – risks to threats (Phythian, “Policing Uncertainty”, 196). Other scholars group intelligence activities by the level of harm posed by the intelligence activity (i.e., Bellaby, The Ethics of Intelligence), which is not specifically addressed in our division. Additionally, our division does not include considerations with regard to how one should act upon the different levels of intelligence that are collected. Basically, we wish to allude to the epistemic status of the individuals initiating a specific intelligence activity before they authorise this activity.

22. Agrell, “Intelligence Analysis after the Cold War”; and Treverton, “The Future of Intelligence”.

23. Phythian, “Policing Uncertainty”, 188.

24. Ericson and Haggerty, Policing the Risk Society.

25. Frowe, The Ethics of War and Peace, 75–7.

26. Aldrich, “Global Intelligence Co-operation versus Accountability”, 38; and Omand and Phythian, “Ethics and Intelligence: A Debate”, 39.

27. Lomell, “Punishing the Uncommitted Crime”; and McCulloch and Wilson, Pre-crime. Pre-emption, Precaution and the Future.

28. Rodin and Shue, Preemption; Frowe, The Ethics of War and Peace, 75.

29. Frowe, The Ethics of War and Peace, 75.

30. Frowe, The Ethics of War and Peace, 77. Here Frowe rephrases Walzer’s criteria for preemption.

31. Ibid., 78–79.

32. Kleinig, The Ethics of Policing.

33. Loader and Walker, Civilizing Security.

34. Tyler, Why People Obey the Law; and Crawford and Hucklesby, Legitimacy and Compliance in Criminal Justice.

35. Emsley, The English Police; Reiner, The Politics of the Police.

36. Chesterman, One Nation under Surveillance.

37. By ‘public consent’ we first and foremost mean consent from the state’s own citizens. Preventive intelligence dealing with domestic matters of concern are the main object of our article. However, we acknowledge that consent might be a more difficult requirement when dealing with international affairs.

38. Chesterman, One Nation under Surveillance, 69.

39. Ibid., 69.

40. cf. also Born and Wills, “Beyond the Oxymoron”, 36.