Ethan LazukEthics and Privacy in Intelligence OperationsA.S.470.696.82.SP16The Johns Hopkins UniversityMarch 12, 2016

Midterm Assignment

Which ethical school or schools of thought do you believe are most relevant and applicable to intelligence operations? Please cite specific schools of thought and/or authors as well as examples to support your discussion.

Just War Theory is a well-represented school of thought regarding ethics in warfare, and it also has relevance for intelligence operations. Derived from the views of natural law philosophers like Saint Thomas Aquinas, Just War Theory is a part of the teleological branch of ethical philosophy. All teleological arguments are ends-centric, which in the context of intelligence operations means that the end goal of national security is the primary focus, and all other "moral dilemmas and options" related to the means for promoting national security are secondary (Shelton 2011, pg. 28). Just War Theory is only moderately teleological, however, because even though national security is the primary consideration, ethical imperatives for achieving it are of nearly equal importance.

Mark Pythian points out that Just War Theory applies foremost to times of warfare, which are exceptional and temporary, whereas intelligence operations, particularly in today's war on terror, take place in a continual state of activity (2012, pg. 42). Nonetheless, many principles of Just War Theory can be adapted to evaluate ethics in intelligence operations. Sir David Omand uses Just War Theory to devise six principles of ethical conduct for intelligence operations (2012, pg. 53-54). In practice, Sir Omand's principles are restrictions on specific intelligence operations actions. Any actions that do not abide by Sir Omand's limitations, no matter if they are for the sake of national security, are unethical. In no particular order, examples of Sir Omand's principles include proportionality between means and end goals, objective oversight from a legitimate authority, and, similar to how warfare should be the last resort following all peaceful solutions, so too should covert intelligence gathering be a last resort following overt measures.

To Sir Omand's six principles of Just War Theory for ethics in intelligence operations, William Nolte adds a seventh: the right of a nation to self-defense (2009, pg. 23). Nolte divides Just War Theory into Realist and Pacifist sub-schools of thought. Allison M. Shelton sees Realism as separate from Just War Theory (2011, pg. 28-29). According to Shelton, the Realist school of thought is the most teleological of them all.

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Realism stems from the classical thinking of Machiavelli and Hobbes and the modern scholarship of Niebuhr and Kennan. Concerning ethics in intelligence operations, Realism prioritizes national security fully and with no exceptions for moral dilemmas or ethical imperatives that constrain actions as in Just War Theory. For Realists, there is only the end goal, and the means to achieve it are of no consequence, so long as they are effective. Therefore, as a school of thought, Realism is inadequately suited to intelligence operations because it patently ignores one-half of the moral dilemma for intelligence operations, which is how to balance national security and democratic liberty.

For the same reason as Realism, Consequentialism does not apply to ethical intelligence gathering. On a spectrum of teleological thinking, Shelton puts Consequentialism between Just War Theory on the moderate end and Realism on the strong end (2011, pg. 30). In other words, Consequentialism imposes more ethical limitations on intelligence gathering actions than Realism but far fewer than Just War Theory. Based on the utilitarian thinking of Aristotle and John Stuart Mill, Consequentialism defines the best course of action as that which benefits more people or creates the most good. Consequentialism's utilitarian principles, however, use unquantifiable, subjective, and vague measures to determine what "good" looks like or "success" means. Such "weighted values," as Shelton calls them (2011, pg. 29), are ill-suited to the practical ethical demands of intelligence operations where objectivity is imperative for any intelligence officer, analyst, or policymaker. Among the teleological schools of thought, Just War Theory is the only one that is wholly relevant to ethics in intelligence operations, but outside of the teleological tradition are other deontological schools of thought that also apply to ethics. Realism, Consequentialism, and Just War Theory are teleological because they prioritize national security. Deontological schools of thought do just the opposite. In the deontological tradition, the ethicality of the means to achieve an end goal is what is most important. Looking back to Nolte's division of Just War Theory, there is mention of Pacifism (2009, pg. 23). For Pacifists, warfare is ethically unjustifiable, but the ethical justifications used in Pacifism to denounce warfare are more or less the same ethical imperatives that restrict unjust actions in Just War Theory and, to a lesser extent, in Consequentialism. It is the imbalance between means and ends, however, that make Realism and Consequentialism unfit for ethics in intelligence gathering, and the same holds true for Pacifism. If Realism gives full attention to national security and ignores ethics, Pacifism cares only about ethics, ignoring national security. The purpose of intelligence operations, however, is promoting national security, an aim that is incompatible with Pacifism.

The fact that the intelligence profession prioritizes national security makes it ostensibly inherently teleological, but as Just War Theory shows, there must also be an inclusion of ethical imperatives for specific intelligence operations actions. There is another deontological school of thought following the tradition of Kantian philosophy, however, which strikes a balance between means and ends similar to Just War Theory. Philosopher Immanuel Kant pioneered the concept of categorical imperatives, or

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"fundamental principles of ethical action" (Shelton 2011, pg. 29). Like Pacifism, Kantian Philosophy prioritizes ethics and the means to achieving an end goal. Unlike Pacifism, however, national security is a legitimate end goal in Kantian Philosophy. If teleological philosophy cares most about the end goal, then deontological philosophy cares most about the means to achieve that end, but it is having a balanced emphasis between means and ends is what makes an ethical school of thought applicable for intelligence operations. Just War Theory, for example, prioritizes national security as an end goal while still caring enough about means to impose restrictions on specific intelligence operations actions. Kantian Philosophy does the same in reverse by prioritizing ethical means for achieving the still important end goal of national security. The fact that Kantian Philosophy is a deontological school of thought that acknowledges but does not prioritize national security does not preclude it from being relevant for ethics in intelligence operations. Just War Theory and Kantian Philosophy both maintain reasonable balances between their focuses on ethical means and supporting of national security as an end goal, and, therefore, both schools of thought are relevant to ethics in intelligence operations. If there is one significant limitation to intelligence operations from Kantian Philosophy, however, it is that prohibiting coercion and deception is a categorical imperative (Shelton 2011, pg. 30). If considered too broadly, this categorical imperative could prohibit covert intelligence gathering entirely by considering such actions as a form of deception. More practically, avoiding deception can mean relaying only objective analysis up the chain of command or honoring all commitments and agreements over compensation to foreign assets in the field. Similarly, a prohibition on coercion can mean that enhanced interrogation techniques are justifiable but torture is not. It is reasonable to consider whether intelligence officers can realistically embrace Kantian Philosophy and show greater concern for ethical actions than national security, but considering the commitment of most intelligence officers firstly to the U.S. Constitution and its liberal democratic principles, Kantian Philosophy is certainly amenable to ethics in intelligence operations.

Whether an intelligence officer has teleological or deontological personal beliefs is immaterial so long as his or her professional actions abide either the limitations set by Just War Theory or the categorical imperatives of Kantian Philosophy. There is room in intelligence operations for Realist, Consequentialist, and even Pacifist views, as well. The guiding framework for ethics in intelligence operations, however, should be rest between the tenets of Just War Theory and Kantian Philosophy because these are the most relevant schools of thought.

If you were advising an operations officer in recruiting foreign assets, what limits would you put on his efforts to recruit a high-ranking foreign government official who may have access to information critical to US national security?  Please explain the reason for any limits or lack thereof.

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The recruiting of foreign assets is not a binary procedure with a clear framework for ethical conduct. Rather, there are innumerable factors that determine what the permissible nature of a relationship between a case officer and an asset may be. Even though recruitment methods should be evaluated on a case-by-case basis (Langan 2006, p. 110), there are general ethical principles for the handling different types of foreign assets. These principles can shed light on what an ethical approach to recruiting a high-ranking foreign government official, who has possession to information critical to U.S. national security, might look like. Stated in brevity, the leeway for use of deception or coercion in recruiting this potential asset is relatively high given the significant of the information he or she has access to for U.S. national security, which is the end goal of all intelligence operations. On the other hand, the status of this potential asset as a high-ranking official in a foreign government makes him or her a valuable asset concerning the high-level of confidence with which U.S. intelligence analysts and, ultimately, policymakers will regard his or her information. This latter consideration suggests that building an alliance rather than a subordinating or paternalistic relationship between the case officer and the asset is the most appropriate course of recruiting him or her The nature of HUMINT, or human intelligence from a live asset in the field, falls into a unique ethical category in intelligence operations (Nolte 2009, pg. 24). Because national security is the end goal for intelligence gathering, teleological schools of thought like Just War Theory or Consequentialism, which place preeminence on the end goal over the means to achieve it (Shelton 2011, pg. 29), are more apt to support the inherent qualities of intelligence operations. Given that HUMINT involves other human beings as means to achieve national security, however, this type of intelligence gathering bears many qualities closer to deontological schools of thought, such as Kantian Philosophy, which give priority to whether the means used to achieve national security are ethical. Near the center of all ethical thinking about HUMINT is the foreign asset he or herself. Not because the asset is a source of information, however, but because he or she is a human being, period. Although U.S. laws do not apply to dealing with assets overseas, intelligence officers must nonetheless represent the foundational principle of American democracy, submitted in the Declaration of Independence, that all people are created equal. Thus, by the rule of universalization, a foreign asset is deserving of the same fundamental human prerogatives as the case officer who recruits or commands him or her. (Pfaff et. al. 2004, pg. 3) That foreign assets are an end in themselves, rather than the means to an end, is a theory advocated by Tony Pfaff, David L. Perry, Ross Bellaby, and John P. Langan. Speaking of ethical ideals in intelligence gathering, Langan explains how case officers have a "moral duty to treat other persons as ends worthy of respect in themselves and not as means" (Langan 2006, p. 110). Speaking of actual conditions, however, Perry concedes, "that espionage agents are regarded by their sponsors primarily as means to

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the end of collecting intelligence" (1995, pg. 9). Bellaby describes this scenario as occurring whenever the asset "loses self-mastery, becoming a tool of the will of another" (2012, pg. 100). Pfaff argues that the natural equality of humans entails both metaphysical freedom and rationality (2004, pg.3). Bellaby describes a list of "vital interests," which are "fundamental interests" or "preconditions" for a life of basic wellbeing, and that among these intrinsic values are "individuals' physical and mental integrity, their autonomy, liberty, sense of self-worth and privacy (2012, pg. 96). There are clear parallels between Pfaff's metaphysical freedom and rationality and Bellaby's mental integrity and autonomy, but the universal assumption is that any infringement by a case officer of an asset's "vital interests" diminishes the latter's wellbeing. By assuming a cover identity to get closer to a potential foreign asset, for example, a case officer is deliberately deceiving the asset, thus limiting the latter's autonomy by causing him or her to have a distorted view of reality (Bellaby 2012, pg. 100). Conversely, when a case officer treats an asset as a self-determining agent by not reducing the asset's autonomy through deception, coercion, or manipulation, such treatment "is synonymous with respecting the dignity of that person's freedom" (Pfaff et. al. 2004, pg. 4). A foreign asset is not a civilian, however, and by his or her participation in intelligence gathering, an asset becomes a fair target of certain acts of "deception and other actions that deviate from generally accepted moral norms" that are nonetheless sometimes essential to maintaining national security through intelligence gathering. Indeed, the prerogative to deny certain aspects of a foreign asset's vital interests is further justifiable because the national security concerns pertain to a liberal democracy with ostensibly noble international objectives, as opposed to a tyrannical regime (Langan 2006, pg. 108). Also applicable is the Just War Theory principle of proportionality, which maintains that the greater the significance of the information for protecting national security, the more leeway case officers have for interfering with the autonomy and other vital interests of their foreign assets. With that in mind, another Just War Theory principle called last resort says that covert methods, especially involving acts of deception or coercion against a foreign asset, are justifiable only after all overt and non-violent options are exhausted. Furthermore, intelligence on its own has no direct value to U.S. national security (Langan 2006, pg. 109). It is only when it is analyzed and submitted to policymakers that information becomes actionable and worthwhile for national security. One aspect that affects the quality of intelligence, however, is the confidence placed in the source of the information him or herself, but to recruit the most reputable foreign assets to become sources a nation must have a reputation for integrity. Foreign assets can have numerous motivations for collaborating with U.S. intelligence operations, including financial rewards and patriotic inclinations. In many cases, however, the cooperation of an asset depends on he or she expecting some form of compensation from the case officer and the U.S. Government. Not fulfilling obligations to assets is a sure way to build a negative reputation that sours future recruitment efforts. The same is even truer, perhaps, for forced recruitment techniques

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relying on bribery, blackmail, or extortion. Perry quotes a retired-CIA official who says, "that such methods often produce unreliable agents who only pretend to have access to important information" (1995, pg. 10). Building mutual alliances between case officers and high-ranking assets, on the other hand, leads to sounder information for analysts and policymakers. In the case of recruiting a high-ranking foreign government official with critical information for U.S. security, short-term, instinctual thinking would suggest extorting, humiliating, or otherwise interfering with the asset's vital interests to force out information. A more sensible approach, however, would be to build a respectful alliance with the asset based on firm commitments to financial rewards, political asylum, or other forms of compensation from the case officer. In the course of intelligence gathering, case officers are ethically permitted to impinge on the vital interests of a foreign asset given a sufficient national security imperative. As opposed to subordinating relationships, however, mutual alliances between case officers and assets that respect the latter's autonomy, self-worth, physical integrity, and other vital interests will result in better information about which case officers, analysts, and policymakers can feel confident. Concerning recruiting practices generally, the more value potential assets have, for example, high-ranking government officials, the greater the imperative for case officers to respect their vital interests through mutual alliances.

Is “enhanced interrogation” ever justified?  Why or why not? Please give examples and cite to our course materials to support your arguments.

The end goal for intelligence officers is to keep the national safe, and therefore enhanced interrogation is justifiable when it serves that purpose. Given the legal and ethical dilemmas surrounding enhanced interrogation techniques, however, only an uncontested contribution to national security can ever justify using this class of intelligence extraction methods. The legality of specific enhanced interrogation techniques is a matter of ongoing dispute (Rivkin 2008, pg. 13-14; Clark 2005, pg. 456), but the covert or classified nature of intelligence operations can facilitate intelligence-gathering activities that transcend domestic or legal boundaries in the name of national security with limited external or even internal oversight (Johnson 1983, pg. 4; Omand et. al. 2012, pg. 47). Agency or inter-agency frameworks for proper conduct can integrate ethical justifications for enhanced interrogation, and ethics can even influence individual-level behavior among intelligence officers in the field. Having firm ethical boundaries for enhanced interrogation is, therefore, imperative, but what has perhaps the most significant bearing on the ethical justification for enhanced interrogation techniques is whether their use is for necessary or expedient ends (Bellamy 2006, pg. 135). Most proponents of enhanced interrogation subscribe to schools of thought that fall under the teleological branch of ethical philosophy, which says that national security is of greater concern than the means used to achieve it. The Utilitarian or

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Consequentialist school maintains that enhanced interrogation is ethically permissible if it is used to extract information that benefits the most people, for example, life-saving information (Shelton 2011, pg. 29). More specifically, the Just War Theory school of thought argues for proportionality (Nolte 2009, pg. 24; Omand et. al. 2012, pg. 53), meaning that the intensity of the enhanced interrogation techniques used should be proportionate to the amount of damage or number of innocent lives lost that the information extracted will prevent (Bellamy 2006, pg. 147). The hypothetical invoked most often is the ticking bomb scenario, in which a detained man or woman possesses information about an impending bomb attack (Bellamy 2006, pg. 146). In this scenario, the level of enhanced interrogation techniques permissible for extracting information to stop the bombing is at its highest. This scenario of the ticking bomb is the epitome of an essential use of enhanced interrogation, where the detainee is known to possess information of immediate and uncontestable value to national security. The concern, however, regards the burden of proof in lesser scenarios (Bellamy 2006, pg. 133). If the detainee possibly knows about an imminent attack, or if he or she knows about an attack but whether it is imminent is unestablished, is enhanced interrogation necessary, or is it an expedient way to extract information that is otherwise obtainable through protracted means? There is also the matter of external consequences for the use of enhanced interrogation, for example, its impact on the nation's reputation domestically and, especially, internationally (Hutson 2008, pg. 11; Rejali 2008, pg. 21). Consequentialism argues for enhanced interrogation if it leads to benefits for the greatest number of people. Assuming there is a suspicion that a detainee is complicit in designing assassination plots against several individuals, Consequentialism believes the temporary loss of autonomy for the detainee by physical or mental discomfort is ethically justifiable because it likely prevents more than one fatality. Conversely, enhanced interrogation may benefit more people in the short-term, but the effects on the nation's reputation can cause a greater threat to national security long-term. Depending on the scope of consideration used, Consequentialist or Realist thinking can justify condoning or prohibiting enhanced interrogation on the same ethical grounds. This ambiguous reality of ethical justifications for enhanced interrogation further supports the use of such techniques only in necessary circumstances where a detainee is reasonably known to possess time-sensitive information that will save innocent lives or improve national security otherwise. If this condition is not satisfied, enhanced interrogation then becomes an expedient substitute for less ethically dubious actions, and it may, therefore, end up causing more national security threats in the long-term than it prevents in the short-term. Besides the necessary-expedient consideration, a second key element of whether enhanced interrogation is ethically justifiable concerns a principle in the teleological Just War Theory school of non-combatant immunity. According to Alex J. Bellamy, all prisoners are non-combatants (2006, pg. 148), and under the Just War Theory, they have immunity from harm. Heather MacDonald, however, argues that "Unlike lawful

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prisoners of war, the terror detainees were never off the battlefield" (2008, pg. 6). According to MacDonald, the ubiquitous threat from terrorist suspects is one reason that enhanced interrogation is critical for information extraction in the contemporary war on terror. Ethics in intelligence operations is still an inchoate concept that involves adapting principles from ethical schools of thought intended for conventional multi-national warfare. For example, conscripted Soviet Union soldiers are non-ideological and are likely to provide information as the result of traditional interrogation techniques. Much of today's intelligence operations, however, are targeted at anti-Western ideologues whose commitment to their cause extends to the point of death, in many cases. The same interrogation techniques that work on conscripted soldiers are inadequate for extracting information from unyielding ideologues, and, therefore, enhanced interrogation techniques are applicable (MacDonald 2008, pg. 5). Additionally, terrorist attacks may result from meticulous planning, but they are nonetheless seemingly random if not irrational episodes of violence. The potential to thwart an impending terrorist attack introduces an element of imminence to information extraction for some detainees with suspected ties to terrorism. Bellamy's argument that detainees are non-combatants does not apply to intelligence operations in today's war on terror, where the targets are fighting with asymmetric tactics that know no boundaries. The imminent nature of some acts of terrorism does not mean that enhanced interrogation is always necessary, however, but only that it can be necessary for confronting a ticking bomb scenario. Another consideration for the ethical justification of enhanced interrogation concerns the potential that extraordinary techniques used in a ticking bomb scenario, for instance, can gradually slip into being normative, even legalized, practices to make extracting information from detainees more expedient as a whole (Bellamy 2006, pg. 142; Pythian 2012, pg. 44). Here the question is not about individual cases regarding the burden of proof to justify enhanced interrogation against a single detainee, but rather that the rightful use of enhanced interrogation in a single exigent circumstance can set a precedent for the further use of these techniques outside of the bounds of what are ethically justifiable actions. The possibility that slippage like this will occur is an important consideration, and it further emphasizes the need for strict guidelines of ethical justification for enhanced interrogation. Using enhanced interrogation techniques more often than is necessary, in other words, is the gateway to using them expediently at the risk of the long-term degradation of the national reputation and ultimately security. The reputation of a nation matters a great deal for intelligence operations. Recruiting foreign assets in the field, receiving information from volunteer sources, and even hiring the most talented intelligence officers are all hindered by a poor reputation. For the U.S., in particular, the risk is a charge of hypocrisy for a nation that promotes democratization and then overly relies on enhanced interrogation for the sake of expeditiously advancing its national self-interests. The fact remains, however, that in today's intelligence operations and the war on terror, asymmetric threats to national security do exist, and detaining a combatant does not necessarily make him or her a non-combatant. Given these realities, enhanced interrogation is ethically justifiable, but

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only in necessary conditions. Short of an uncontestable certainty that the information extracted from a detainee will save innocent lives or inscrutably improve national security, enhanced interrogation techniques must be not only avoided but prohibited.

Sources

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Ross Bellaby (2012) What's the Harm? The Ethics of Intelligence Collection,Intelligence and National Security, 27:1, 93-117, DOI: 10.1080/02684527.2012.621600

A. J. BELLAMY (2006), No pain, no gain? Torture and ethics in the war on terror. International Affairs, 82, 121–148. DOI: 10.1111/j.1468-2346.2006.00518.x

Kathleen Clark (2005) Ethical Issues Raised by the OLC Torture Memorandum. Journal of National Security Law Policy, 1:2, 455-472

Jack Cloonan and Rick Francona, John Hutson, Heather MacDonald, Darius Rejali, David Rivkin (Eds. Media Transcripts, Inc.) (2008) Proceedings from Rosenkranz Foundation – "Intelligence Squared U.S.": Tough Interrogation of Terror Suspects is Necessary. New York, NY: The Rosenkranz Foundation

John P. Langan, S. J (2006) Moral Damage and the Justification of Intelligence Collection from Human Sources. In Jan Goldman & Martin Gordon (Eds.), Ethics of Spying: A Reader for Intelligence Professionals (pp. 104-113). Maryland: Scarecrow Press, Inc.

William M. Nolte (2009) Ethics and Intelligence, Joint Force Quarterly, 3:54, 22-29, Retrieved from http://ndupress.ndu.edu

Sir David Omand and Mark Pythian (2012) Ethics and Intelligence: A Debate}, International Journal of Intelligence and Counter Intelligence, 26:1, 38-63, Retrieved from http://dx.doi.org/10.1080/08850607.2012.705186

David Perry (1995) "Repugnant Philosophy": Ethics, Espionage and Covert Action, 1-24, Retrieved from EBSCO.

Tony Pfaff and Jeffrey R. Tiel (2004) The Ethics of Espionage, Journal of Military Ethics, 3:1. 1-15.

William R. Johnson (1983) Ethics and Clandestine Collection, Studies in Intelligence 27:1, 1-8.

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