Ethics of Spying: A Reader for the Intelligence Professional, Volume 2 (Scarecrow Professional Intelligence Education Series)

Scarecrow Professional Intelligence Education Series, No. 9

ETHICS OF SPYING: A Reader for the Intelligence Professional, Volume 2

GOLDMAN

MILITARY HISTORY • INTELLIGENCE

EDITED BY

JAN GOLDMAN

continues where the first book ended, but with a twist. It begins with a historical

personnel. A previously classified memo from 1941 and a report from 1954 provide a sense of both the history and the perception of standard professional conduct by government officials—both describing intelligence as an amoral albeit necessary profession. The first half of the book define an intelligence professional, while the second half seeks to applies theoretical and practical perspectives to that definition.

its authors, who hail from countries as diverse as Israel, the United Kingdom, Switzerland, and the United States. These preeminent scholars explore ethics throughout the intelligence cycle and discuss how the topic is evolving and is viewed in a post-9/11 world. The book concludes with a survey on ethical conduct by interrogators, a brief history of intelligence reform, and a bibliography. The his-

SPYING

The richness of Ethics of Spying, Volume 2 comes from the international views of

ETHICS OF

perspective of the expectations of the moral and ethical conduct of intelligence

ETHICS OF

SPYING A READER FOR THE INTELLIGENCE PROFESSIONAL

tory and international perspectives provided by Ethics of Spying lay the foundation

JAN GOLDMAN is author or editor of numerous articles and books on intelligence, including Ethics of Spying: A Reader for the Intelligence Professional (2005) and Words of Intelligence: A Dictionary (2006), both published by

A READER FOR THE INTELLIGENCE PROFESSIONAL

for further study in this increasingly prominent field of interdisciplinary study.

Scarecrow Press. He is also editor for the Scarecrow Professional Intelligence VOLUME 2

Education Series (SPIES). For orders and information please contact the publisher SCARECROW PRESS, INC. A wholly owned subsidiary of The Rowman & Littlefield Publishing Group, Inc. 4501 Forbes Boulevard, Suite 200 Lanham, Maryland 20706 1-800-462-6420 • fax 717-794-3803 www.scarecrowpress.com

Ethics Spying Pbk.indd 1

Cover design by Allison Nealon

10/28/09 1:43:01 PM

SCARECROW PROFESSIONAL INTELLIGENCE EDUCATION SERIES Series Editor: Jan Goldman In this post–September 11, 2001 era, there has been rapid growth in the number of professional intelligence training and educational programs across the United States and abroad. Colleges and universities, as well as high schools, are developing programs and courses in homeland security, intelligence analysis, and law enforcement, in support of national security. The Scarecrow Professional Intelligence Education Series (SPIES) was first designed for individuals studying for careers in intelligence and to help improve the skills of those already in the profession; however, it was also developed to educate the public in how intelligence work is conducted and should be conducted in this important and vital profession. 1. Communicating with Intelligence: Writing and Briefing in the Intelligence and National Security Communities, by James S. Major. 2008. 2. A Spy’s Résumé: Confessions of a Maverick Intelligence Professional and Misadventure Capitalist, by Marc Anthony Viola. 2008. 3. An Introduction to Intelligence Research and Analysis, by Jerome Clauser, revised and edited by Jan Goldman. 2008. 4. Writing Classified and Unclassified Papers for National Security: A Scarecrow Professional Intelligence Educational Series Manual, by James S. Major. 2009. 5. Strategic Intelligence: A Handbook for Practitioners, Managers, and Users, revised edition by Don McDowell. 2009. 6. Partly Cloudy: Ethics in War, Espionage, Covert Action, and Interrogation, by David L. Perry. 2009. 7. Tokyo Rose / An American Patriot: A Dual Biography, by Frederick P. Close. 2010. 8. Ethics of Spying: A Reader for the Intelligence Professional, edited by Jan Goldman. 2006. 9. Ethics of Spying: A Reader for the Intelligence Professional, Volume 2, edited by Jan Goldman. 2010.

Ethics of Spying A Reader for the Intelligence Professional, Volume 2

Edited by Jan Goldman

Scarecrow Professional Intelligence Education Series, No. 9

THE SCARECROW PRESS, INC.

Lanham • Toronto • Plymouth, UK 2010

Published by Scarecrow Press, Inc. A wholly owned subsidiary of The Rowman & Littlefield Publishing Group, Inc. 4501 Forbes Boulevard, Suite 200, Lanham, Maryland 20706 http://www.scarecrowpress.com Estover Road, Plymouth PL6 7PY, United Kingdom Copyright © 2010 by Jan Goldman All rights reserved. No part of this book may be reproduced in any form or by any electronic or mechanical means, including information storage and retrieval systems, without written permission from the publisher, except by a reviewer who may quote passages in a review. British Library Cataloguing in Publication Information Available The paperback edition of the first edition of this book was cataloged by the Library of Congress as follows: Ethics of spying : a reader for the intelligence professional / edited by Jan Goldman. p. cm. Includes bibliographic references ISBN 0-8108-5640-9 (pbk. : alk. paper) 1. Espionage—Moral and ethical aspects. 2. Espionage, American—Moral and ethical aspects. 3. Intelligence service—Moral and ethical aspects. 4. Intelligence service—United States—Moral and ethical aspects. 5. Military interrogation— United States—Moral and ethical aspects. 6. Spies—Professional ethics. 7. Political ethics—United States. I. Goldman, Jan. JF1525.I6E895 2006 172'.4—dc22 2005031311 Volume 2: ISBN 978-0-8108-7165-6 (cloth : alk. paper) ISBN 978-0-8108-6198-5 (pbk. : alk. paper) All statements of fact, opinion, or analysis expressed in these articles are those of the authors. They do not necessarily reflect official positions or views of the Department of Defense or any other U.S. government entity, past or present. Nothing in this book’s content should be construed as asserting or implying the U.S. government’s endorsement of an article’s factual statements and interpretations.

⬁ ™ The paper used in this publication meets the minimum requirements of American National Standard for Information Sciences—Permanence of Paper for Printed Library Materials, ANSI/NISO Z39.48-1992. Printed in the United States of America

In the years immediately following the Second World War . . . our government felt itself justified in setting up facilities for clandestine defense operations. . . . As one of those who, at the time, favored the decision to set up such facilities, I regret today, in light of the experience of the intervening years, that the decision was taken. Operations of this nature are not in character for this country. They do not accord with its traditions or with its established procedures of government. The effort to conduct them involves dilemmas and situations of moral ambiguity in which the American statesman is deprived of principled guidance and loses a sense of what is fitting and what is not. Excessive secrecy, duplicity and clandestine skullduggery are simply not our dish. . . . One may say that to deny ourselves this species of capability is to accept a serious limitation on our ability to contend with forces now directed against us. Perhaps; but if so, it is a limitation with which we will have to live. —George Kennan “Morality and Foreign Policy” Foreign Affairs, 1985–1986

Contents

Acknowledgments

ix

Introduction

xi

Part I: Ethics and the Intelligence Profession 1

Professionalization of Intelligence (1984) George Allen

2 Office of Naval Intelligence’s Special Intelligence Memorandum (1941) Randy Balano and John L. Riheldaffer 3 Introduction to the Doolittle Commission Report on the Covert Activities of the Central Intelligence Agency (1954) 4 Is Ethical Intelligence a Contridiction in Terms? (2008) Jennifier Morgan Jones 5

Beyond the Oxymoron: Exploring Ethics through the Intelligence Cycle (2008) Hans Born and Aidan Wills

3

13

19 21

34

Part II: Ethics, Paradigms, and Frameworks 6 Speak No Evil: Intelligence Ethics in Israel (2007) Shlomo Shpiro

59

7 Ethics for the New Surveillance (1998) Gary T. Marx

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8

Contents

Ethics and Intelligence after September 2001 (2004) Michael Herman

9 “As Rays of Light to the Human Soul”? Moral Agents and Intelligence Gathering (2004) Toni Erskine 10 The Unresolved Equation of Espionage and International Law (2007) John Radsan

103

120

144

11 Torture and the Medical Profession (2006) Steven Miles

172

12 U.S. Army Interrogator Survey on Ethics (2005) Rebbeca Bolton

192

13 U.S. Intelligence Reform Proposals Made by Commissions and Major Legislative Initiatives Related to Professionalism, Accountability, and Ethics (2009)

206

Bibliography

237

About the Contributors

243

Acknowledgments

It is with appreciation that the authors and their publishers have allowed their articles to appear in this book. “‘As Rays of Light to the Human Soul’? Moral Agents and Intelligence Gathering” by Toni Erskine (359–381) and “Ethics and Intelligence after September 2001” by Michael Herman (342–358) both are in Intelligence and National Security (Summer 2004), Taylor & Francis Ltd., reprinted with permission of the publisher, and then appeared in L. V. Scott and P. D. Jackson, eds., Understanding Intelligence in the Twenty-First Century: Journeys into Shadows (London: Routledge, 2004); “Unresolved Equation of Espionage and International Law” by John Radsan appeared in Michigan Journal of International Law (Spring 2007); “Ethics for the New Surveillance” by Gary Marx appeared in Information Society (1998); and “Torture and the Medical Profession” by Steven Miles appeared as the first chapter in Oath Betrayed: America’s Torture Doctors (Berkeley and Los Angeles: University of California Press, 2006). Additionally, I want to thank two librarians who are extremely knowledgeable of intelligence and whose support was invaluable: Christopher Vallandingham at the University of Florida’s Levin College of Law and Judith Robinson at the National Defense Intelligence College. The views expressed in this book are those of the authors and do not reflect the official policy or position of the Department of Defense, any agency or department in the intelligence community, or the U.S. government.

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Government agencies have ethical training based on understanding policies and regulations, which consequently makes moral and ethical decision making compliant to judicial oversight. As in life, the intelligence profession is sometimes filled with moral and ethical dilemmas for which no law, policy, or regulation can assist in developing the proper response in “doing the right thing.” Since publication of the first volume of Ethics of Spying: A Reader for the Intelligence Professional in 2006, much has occurred to raise awareness in understanding the role of morals and ethics in relation to intelligence operations. Previously published articles, as well as discussion, never had the required sustained focus. Since the terrorist attacks of September 11, 2001, the decision to conduct intelligence operations and the ways we obtain intelligence have come under increased public scrutiny. The publication of the first volume of this book coincided with the first international conference on ethics and intelligence, held outside Washington, D.C. The conference was attended by intelligence practitioners, lawyers, academics, and participants from almost a dozen countries. The fact that morals and intelligence work could be united in one sentence (without being the punch line to a joke) was unusual enough to become news. News of the conference appeared in an article on the front page of the New York Times.1 By all standards of success, the conference was well-attended, although without a doubt some attendees were there out of curiosity rather than an interest in scholarship or professional development. Nevertheless, it was a great beginning to a field of knowledge that has in the past only sporadically appeared in academic and professional journals. (The bibliography near the end of this book lists those articles, journals, and books xi

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that have focused on ethics and intelligence.) Since that time, other conferences have either focused exclusively on ethical conduct and intelligence or prominently included it as part of their conference. In 2007 the nonprofit International Intelligence Ethics Association was chartered to become a clearinghouse for articles and conferences, as well as to develop the field of knowledge in producing a journal on ethics and intelligence.2 As the role of ethics in the conduct and decision to use intelligence for national security receives more scrutiny, like diamonds unearthed in a cave, long-forgotten documents are beginning to surface. The first half of this book focuses on the intelligence profession. It is taken for granted by some people and denied by others that individuals working in the intelligence community are professionals. George Allen’s “Professionalization of Intelligence” seeks to capture the image and definition of an intelligence professional. Allen writes that “we find many of those engaged in the vocation of intelligence ignoring or neglecting the implications of its professionalization.” He goes on to discuss the ambivalence, skepticism, and reluctance of associating intelligence work with American values. In one of the first and best examinations of the implications of professionalization, Allen develops Samuel Huntington’s criteria of professionalism for military officers by focusing on the key concepts of expertise, responsibility, and corporateness. Ultimately, according to Allen, “intelligence organizations—as public bureaucratic institutions— have a responsibility to advance the process of professionalization as a means of enhancing their effectiveness in serving the state.” Sometimes the state needs to take the temperature of better understanding what is being done in its name and those for which the state seeks to provide security. This is a debate that either has already been settled or has not yet been discussed. Nevertheless, as is clear from this chapter, covert actions can be accomplished by anyone less than moral—according to a document that remained classified for over fifty-three years. In early 1941, ten months before the attack on Pearl Harbor and America’s involvement in World War II, a memo circulated in the Office of Naval Intelligence. The memo discusses the development of a Special Intelligence Section that would operate in secrecy. According to the memo, the mission of this special section would have an unaccountable budget and would provide and operate intelligence operations overseas. However, later the memo states that some of the missions this section would conduct would take place in the United States on “minority groups” and “subversive groups.” It is interesting to note that this memo regarding the development of an intelligence capability to spy on American citizens predates by sixty-one years secret presidential orders authorizing the intelligence community to monitor domestic communications. However, aside from the legal ramifications

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of this memo, there is the ethical aspect this memo highlights pertaining to the discussion on ethics and intelligence. In paragraph 6, the memo states: Espionage is by its very nature not to be considered as: “honorable” or “clean” or “fair” or “decent.” It consists in obtaining information by stealth, in encouraging and executing sabotage, in wrecking the civilian and military morale, and in combating equally subversive activities directed against itself. The objectives are accomplished in large part by two appeals: (a) to patriotism and (b) to the lowest nature of individuals—greed, lust for power, revenge, etc. By far the largest number of AGENTS or EMPLOYEES are taken from the petty criminal class, mal-contents, revolutionaries; refugees or psychopaths. In general only the very highest in the organization work purely for patriotic or selfless reasons.

Clearly, there was no intention to assume members of this intelligence section could or would be considered professionals, especially when looking to recruit from the “petty criminal class, mal-contents, revolutionaries, refugees, or psychopaths.” It is interesting to note that the manager or supervisor of this section, to distance himself from those under his command, would “work purely for patriotic or selfless reasons.” While motivation in this special section may be limited to individuals’ selfish reasons, the person in charge of these individuals operate only for “purely patriotic or selfless reasons” (contrary to Immanuel Kant’s moral philosophy of using people as a means to an end). Randy Balco, the chief historian for the U.S. Navy, provides the background to this interesting and recently declassified memo. In July 1954 President Dwight D. Eisenhower commissioned Lieutenant General James Doolittle, USAF, to investigate the CIA’s covert activities and to determine ways to improve the conduct of these operations. The Report on the Covert Activities of the Central Intelligence Agency, known as the Doolittle Report, was declassified in 1976. The most widely quoted paragraph in the sixty-nine-page report appears in the introduction. The paragraph seems to support attitudes for intelligence activities that may seem to be the antithesis of American ideals. The paragraph states: 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. . . . If the United States is to survive, long-standing American concepts of “fair play” must be reconsidered. We must develop effective espionage and counterespionage services and 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 be made acquainted with, and understand and support this fundamentally repugnant philosophy.

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This report addresses the need to professionalize intelligence by including several recommendations calling for more efficient internal administration, including recruitment and training procedures, background checks of personnel, and the need to “correct the natural tendency to over classify documents originating in the agency.” It also called for increased cooperation between the clandestine and analytical sides of the agency, and recommended that the “Inspector General operate on an Agency-wide basis with authority and responsibility to investigate and report on all activities of the Agency.” Jennifer Morgan Jones seems to take exception that intelligence work needs to be a part of a “repugnant philosophy” in her short essay “Is Ethical Intelligence a Contradiction in Terms?” Her conclusion is that the terms ethical and intelligence are neither necessarily contradictory nor supportive of each other, but rather that an awareness that ethics is considered alongside actions is the best one can hope to achieve. To reach this conclusion, Jones assesses the “suitability of idealism, realism, consequentialism and just-war theory as approaches to evaluate the ethical consideration of intelligence.” Additionally, she considers the potential moral damage to the intelligence officer as a person and moral agent during the collection process. Overall, this is a nice, short introduction from a philosophical perspective that forms the groundwork for further discussion. Hans Born and Aidan Wills, scholars at the Geneva Centre for the Democratic Control of Armed Forces in Switzerland, provide a seminal piece, “Beyond the Oxymoron: Exploring Ethics through the Intelligence Cycle.” The authors attempt to bring together the intelligence issues that exist throughout the intelligence cycle with an assessment of the ethical dilemmas involved. Their demonstration of the relevance of intelligence ethics, and the existing approaches that exist to resolve those dilemmas, supports their contention that an intelligence ethics research agenda must be established. This essay points out that in some ways democratic European nations are taking the lead by adopting ethical regulations for their intelligence services. Both authors have experience from their direct and indirect involvement in the drafting by the Council of Europe Parliamentary Assembly of a code of intelligence ethics for Council of Europe member states. This essay makes the clear argument that laws alone are not sufficient for the comprehensive regulation of professional conduct in any intelligence community. As in the chapter preceding it, the authors discuss realist, consequentialist, and deontological approaches to assessing the rightness or wrongfulness of actions, which seem to be the dominant theories in this field of study, followed by a discussion of the application of ethical decision making to the intelligence cycle (i.e., plan, collect, analyze, produce, and disseminate). The second half of this book goes beyond theory and into practice. Israeli scholar Shlomo Shpiro outlines the five main elements of intelligence

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ethics in Israel: telling the truth, protecting sources, resisting internal coverups, respecting religion, and possessing individual moral character. This essay provides a good, brief background on the Israeli Intelligence Community as it attempts to move beyond laws and regulations, by discussing the principles that form a code of ethics. Israel is a country that must balance grave national security risks with moral and ethical behavior within a framework drawing on Zionist ideology, the Jewish religion, a democratic tradition, and personal morals. In “Ethics for the New Surveillance,” Gary T. Marx is very clear in describing what unethical conduct can be performed within a democratic society by its government. He argues that surveillance activity must be judged according to the means, context, and conditions of data collection, and the intelligence goals. He suggests twenty-nine questions, broken into three sections, be used to develop the ethics of this activity. Marx anticipates possible philosophical criticism by acknowledging the lack of a normative argument. The reader will especially enjoy his very informative endnotes. Michael Herman also looks to the global arena in trying to understand the role of ethics in intelligence. He believes there is a “new landscape of international conduct” among nations since the terrorist attacks on U.S. soil on September 11, 2001. His discussion frames the confluence of ethics and intelligence against the factors involved with determining intelligence and the intrusiveness of collecting that intelligence. According to Herman, “Intelligence as a whole is again ‘special,’ secret, an object of great public curiosity: all characteristics that a few years earlier could be felt to be on the wane.” Since 2001, a sense of “internationalization” has developed that should be considered a considerable shift in how governments interact with each other. According to Herman, “[Intelligence] is now becoming an increasingly important international network in its own right, in the world of ever-growing intergovernmental cooperation. The effect on its ethical balance sheet is twofold. It narrows the area to which the security dilemma applies yet simultaneously sharpens the dilemma where it does.” The three chapters that follow involve the application of ethics to intelligence collection in this new era, either through surveillance or extreme interrogation techniques that result in torture. Toni Erskine focuses on intelligence collection, but with the assumption that such activity is vulnerable to ethical scrutiny because it is a human endeavor, that there are several distinct ethical perspectives to evaluate such activity, and that any justification or condemnation may be considered useless. Her discussion uses a simple typology of realist, consequentialist, and deontological ethical approaches that she believes provides the initial step to associating ethics with intelligence collection. Of course, law is a codification of societal ethics, referred to as the lowest common denominator of ethical conduct. However, this does not answer the

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question of whether law drives ethics or ethical concerns are the source of law. These questions become exponentially more complicated on the world stage. John Radson, in “The Unresolved Equation of Espionage and International Law,” proposes that espionage is neither legal nor illegal under international law but that it “exists between the tectonic plates of legal systems.” As a professor and practitioner of law in the intelligence community, Radson makes his case by first developing and defining his terms and then providing a survey of the literature on espionage and international law. Although a common language of surveillance and countersurveillance exists among foreign intelligence services, Radson claims it is a “string of dualities,” citing examples as varied as Aldrich Ames and John le Carré to prove his point. The next two chapters by Stephen Miles and Rebecca Bolton specifically aim their focus on extreme interrogation techniques. The first article, “Torture and the Medical Profession,” by Miles, provides an excellent analysis of why torture does not work and explains why it provides no benefit to the interrogator. In other words, it is an unproductive use of time and energy, and it goes against the tenets of the medical profession. Ethical conduct is paramount to any occupation’s claim to be a profession. Without a doubt, one of the oldest of these is the medical profession. Consequently, the author claims, professional medical personnel who adhere to the Hippocratic Oath cannot willingly participate in the process of torturing individuals. Miles looks at the strengths, weakness, and myths that surround this method of collecting information for intelligence use. The next chapter is a survey conducted by Rebecca Bolton while writing her master’s thesis at the Joint Military Intelligence College in Washington, D.C. The survey numbers, along with the comments provided by some of the participants, speak for themselves. All the participants in this survey are U.S Army interrogators, and the entire survey is reproduced here. Finally, this book ends with two lists. The first list, originally compiled by Richard Best of the Congressional Research Service, is an abridged and narrowly focused list of reform efforts aimed at the United States Intelligence Community. This list is an attempt to place in ahistorical context the ways in which the issue of accountability and responsibility has been dealt with in the intelligence community and, more importantly, how it has been imposed, by means of official policy, on the profession. The second list is intended to be a starting point for readers who seek a more complete, detailed, and varied understanding of the body of knowledge focusing on ethics and intelligence. In conclusion, this book is an extension of the essays that appeared in the first volume. These chapters add to the debate about the role of ethical conduct in intelligence while seeking to develop a common foundation of understanding for intelligence professionals, scholars, and the public. This

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book is an attempt to capture the past while looking toward the future, and it is only through the interchange of ideas and perspectives that we can move forward in expanding our awareness on this subject.

NOTES 1. Scott Shane, “Outfitting Spies with New Tool: Moral Compass,” New York Times, 28 January 2006, 1. 2. The International Intelligence Ethics Association website is at http:// intelligence-ethics.org. The International Journal of Intelligence Ethics began publication in late 2009.

I ETHICS AND THE INTELLIGENCE PROFESSION

1 Professionalization of Intelligence George Allen

I hold every man a debtor to his profession; from the which, as men of course do seek to receive countenance and profit, so ought they of duty to endeavor themselves, by way of amends, to be a help and an ornament thereunto. —Francis Bacon, The Elements of the Common Laws of England, preface

The National Security Act of 1947 officially signaled the emergence of intelligence as a correlate of war and diplomacy in American statecraft. Sherman Kent and others hailed the creation of the Central Intelligence Agency (CIA) as symbolizing the maturing of intelligence as a profession. Yet almost thirty-five years later we find many of those engaged in the vocation of intelligence ignoring or neglecting the implications of its professionalization. Students in senior intelligence courses recently have preferred to describe themselves as practitioners of some other discipline—usually that in which they received their early academic training—rather than as members of the intelligence profession. This ambivalence may reflect in part a deep skepticism within the rising generation, or a reluctance to identify personally with an institution so often attacked in recent years as being incompatible with basic American values. Whatever their basis, such attitudes could be ignored or dismissed if the idea of professionalism merely reflected a basic human desire to clothe one’s lifework with a modicum of dignity and social prestige. But the consequences of a neglect of professionalism by intelligence officers transcend a simple rejection of the ego-value of being associated with an occupation accorded a socially elite status. The term professionalism connotes a sense of collective responsibility by practitioners of a vocation that calls for maintaining high 3

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standards of technical competence, and their commitment to respond to a “calling” by serving the needs of society. Its antithesis—unprofessionalism— not only implies amateur standing; it is also synonymous with a lack of expertise, ineffectual performance, and disregard for societal concerns. The literature of intelligence has tended to ignore the concept of professionalism and its impact on the vocation. This essay undertakes to examine intelligence in that context, and to address the implications of professionalization in terms of developing the effectiveness of both individual practitioners and the institutions in which they serve. Discussion of this matter among intelligence officers usually polarizes along the issue of whether intelligence is or is not a profession, with protagonists generally basing their argument upon narrow definitions of the terms intelligence and profession. Such dialogues rarely take into account broader aspects such as the sociology of occupations or of the institution of intelligence. Because these debates address the wrong question, they are inconclusive. More useful discussions might ensue if the question posted were: Where does intelligence stand in the spectrum of professionalized occupations? Sociologists view the phenomenon of professionalization as a process affecting most occupations to some degree. They postulate an occupational continuum having at one end an “ideal-type,” highly developed profession and at the other end the least sophisticated, undeveloped occupations. Though sociologists differ among themselves on the criteria of professionalism, most definitions encompass professions requiring such characteristics as a high level of intellectual skill in a unique discipline requiring lengthy education and supported by a body of theory, having a service orientation, and spawning professional organizations that ensure the maintenance of high technical and ethical standards by practitioners. In our increasingly specialized, postindustrial, service-oriented, and hightech society, the trend has been for more and more occupations to attain professional standing. While some occupations more fully meet a greater number of these criteria than do others, sociologists generally agree that no occupation—not even the traditional “learned” professions of law, medicine, and the clergy—fully meet all of the criteria generally attributed to the “ideal type.” Professionalism is thus properly viewed as a relative, rather than an absolute, quality.

HUNTINGTON’S MODEL A useful discussion of such concepts, with some pertinence to our own concern, is Samuel Huntington’s comprehensive rationalization of military “officership” as a profession in The Soldier and the State. Huntington groups

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the criteria of professionalism under three broad headings: expertise, responsibility, and corporateness. Huntington sees the professional man as acquiring his special expertise through long education and experience, and adhering to objective standards of professional competence. His professional knowledge is intellectual in nature and is preserved in writing: It has a history relevant to his competence. The professional first receives broad training in the arts or sciences at a general educational institution, followed by technical training in special institutions. The theoretical base of the profession is extended through research and educational institutions. Huntington’s professional man responsibly practices his specialty in a service essential to society. The character of his service and his monopoly of its skills oblige him to provide service when required by his client—society. Social responsibility distinguishes him from other experts. He acknowledges a code guiding the relations of his profession to society and governing conflicts with clients and among members of the profession. This code may comprise unwritten norms or extensive regulations governing ethical conduct. In Huntington’s model, members of a profession share a sense of corporate unity and are conscious of themselves as a group apart from laymen. Their collective sense originates in the lengthy discipline and training necessary to achieve professional competence, the common bond of work, and the sharing of a unique culture and social responsibility. This cohesion is manifested in professional organizations that formalize and apply standards of competence and professional responsibility; such organizations are either associations or bureaucracies. The bureaucratic professions, such as the diplomatic service, possess a high degree of internal specialization of both labor and responsibility. Huntington constructed this conceptual framework to serve as a model of professional activity, and after extensive analysis concluded that military officership approached the model in many respects—that it was undeniably professional in character. Moreover, he observed that in practice, the strength and effectiveness of the military officer varies in direct correlation with the extent to which he approximates the ideal-type professional; the more professional he is in his approach to his vocation, the more effective he is in it.

MEASUREMENT AGAINST THE MODEL How does the intelligence vocation measure up in comparison with Huntington’s professional model? In answering this question, we must first identify those aspects of intelligence that differentiate it from other occupations.

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The fundamental role of intelligence—that of providing a client with knowledge about situations affecting his interests—is common to many occupations. But intelligence possesses a number of attributes that combine to set it apart as a special “calling.” The client of intelligence is society as a whole through the government that serves its interests; in today’s world, intelligence is an occupation sanctioned only as a monopoly of legally constituted institutions of the state acting on behalf of society. • The knowledge required by the state—and its society—is almost universal in scope; its substance and its processes encompass virtually all of the natural and social science disciplines. • The interests of the state are extremely diverse and complex; intelligence must be sensitive to the breadth of those interests and to the priorities, plans, policies, and perceptions of society’s elected representatives in the executive and legislative arms of the state. • The situations of concern to intelligence are essentially adversarial; intelligence deals primarily with those aspects of the external environment that are adverse to the interests of the state and to the pursuit of its aims in relation to other states. • Because it contributes directly to the conduct of diplomacy and— ultimately—to the security of society, intelligence is marked by a high degree of confidentiality; its effectiveness is contingent on the protection of its sources, processes, activities, and products from unauthorized disclosure, and on maintaining the privileges character of its relationship with other institutions of the state. Other responsibilities of intelligence underscore its uniqueness as an occupation: intelligence conducts secret operations abroad within the context of state policy objectives, engages in foreign espionage, and counters the intelligence activities of adversaries. These functions, peculiar to intelligence organizations, entail a variety of skills and knowledge that are unique to intelligence practitioners. The primary function of intelligence—providing knowledge about situations affecting a state’s foreign interests—encompasses a wide variety of subspecialties that further define the kinds of knowledge and expertise required of the intelligence officer. Classifications of intelligence as national or departmental; strategic or tactical; economic, political, military, or scientific; and electronic or photographic characterize such elements as the institutional level being served, the nature of state interests affected, specific environmental considerations affecting those interests, and the means of acquiring the information. Intelligence is, of course, further dif-

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ferentiated between the acquisition, processing, and analysis of information, each involving processes, techniques, and skills peculiar to its task. In addition, language skills and area knowledge are essential to many intelligence functions. All of these combine to produce a plethora of highly technical subspecialties such as, for example, photo interpretation of Soviet strategic weapons test and production facilities; collection of foreign technological data through domestic industrial contracts; interrogation of prisoners of war and exploitation of captured documents and material; analysis of the political significance of radical religious leaders in Muslim states; clandestine handling of highly placed agents in foreign security services; and assessing the yield of a forthcoming Soviet grain harvest. The knowledge, skills, and techniques involved in such differentiated specialties, performed in service of the state, distinguish intelligence from other occupational activities.

EXPERTISE The high order of expertise necessary for such tasks can be gained only through extensive education and experience. Intelligence officers normally enter the vocation following education in one of the natural or social sciences through at least the baccalaureate level; many have advanced degrees. After joining an intelligence service, officers acquire unique intelligence skills through attendance at specialized training courses at intelligence schools or by extensive on-the-job training. Since World War II the military services have offered a rich variety of both general and specialized postgraduate courses in skills and techniques specific to their individual intelligence activities, as do the CIA, the Defense Intelligence Agency (DIA), and the National Security Agency (NSA). The Defense Intelligence School curriculum includes a program leading to a graduate degree in strategic intelligence studies. While no university yet offers a full graduate program in intelligence, the subject is covered in a growing number of graduate seminars on national security and international relations, and more than twenty colleges in the United States offer undergraduate courses dealing exclusively with intelligence. There is a rapidly growing body of literature undergirding the attainment of professional expertise in intelligence, some of it of high-quality theoretical content. Kent’s seminal work on the theory of strategic intelligence no longer stands alone on the shelf. Of course, for more than a generation, military intelligence manuals have reflected theoretical principles of the intelligence process that could be studied profitably by practitioners at all levels. The journal Studies in Intelligence has published a wealth of historical

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and theoretical articles on the profession. The CIA’s Center for the Study of Intelligence has sponsored useful monographs and seminars on theoretical aspects of intelligence, and Georgetown University’s National Intelligence Study Center and the more recently formed Consortium for the Study of Intelligence are fostering professional studies of intelligence in the academic world. Journals devoted primarily to other disciplines are more frequently publishing articles of theoretical value on intelligence. In addition to reflecting these attributes of expertise unique to its primary functions, the intelligence profession engages experts in other disciplines in a wide range of auxiliary functions essential to the effective performance of the institutional mission. These include specialists in such diverse but critical fields as personnel management, logistics, computer technology, photogrammetry, reference library services, and space system engineering. Each of these is a professional activity in its own right in terms of requiring expertise, education, and a theoretical basis. But practitioners of these disciplines require additional special knowledge and skills to function effectively in the intelligence environment. Because their role is an integral contribution to the intelligence function, they can be viewed as part of the intelligence profession in the same way that army engineers, signal officers, legal officers, and logisticians are generally recognized as members of the military profession which they serve. To recognize them as members of the larger profession is not to deny their primary expertise in some other discipline toward which they also have professional responsibilities. To describe a man as a father does not diminish his standing as a husband; similarly, to acknowledge membership in the intelligence profession does not diminish an individual’s standing as an economist. Another discipline integral to the intelligence profession—but worthy of special consideration in this context—is management. The effective administration and direction of intelligence activities can be regarded as the epitome of intelligence professionalism. Just as an untutored civilian cannot be expected to competently command an aircraft carrier or a motorized infantry brigade, so an untrained or inexperienced layperson cannot be expected to effectively direct an NSA field collection activity, a CIA imagery exploitation unit, or a DIA technical analytical division. But mastery of professional intelligence skills does not in itself ensure that a person is able to direct intelligence functions competently; expertise in administrative techniques and behavioral skills is also essential to managerial effectiveness. Some facility in these areas can be acquired through experience, but a professional level of competence requires familiarity with the principles and theories of management and leadership. Recognizing this, both the CIA and the DIA have long offered internal courses in the management discipline and have afforded opportunities for external training in executive skills.

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RESPONSIBILITY Whether they are specialists in unique intelligence skills, in auxiliary disciplines, or in management, members of the intelligence profession apply their expertise with a special social responsibility. Because intelligence is a state monopoly, it is performed only in the service of the state, and only for such socially approved purposes as assisting appropriate institutions of the state in formulating and executing policies, programs, and operations aimed at enhancing the security of the state and its society, and at protecting or advancing its interests abroad. Fulfillment of these purposes requires that the intelligence officer master the skills relevant to his specialty; his acceptance of this responsibility marks him as a professional. His intelligence services are responsible for intelligence functions alone, to the exclusion of any other roles. In addition to his sense of social responsibility, the intelligence professional is motivated by his love for his craft, desire for personal fulfillment, and loyalty to country. The peculiar sensitivity of intelligence work imposes on the practitioner special responsibilities for conforming to behavioral and ethical norms established by regulation, custom, and tradition. He is expected to faithfully carry out tasks within his competency and authority in accordance with accepted professional standards. He is answerable to himself and to his peers, his superiors, his organization, his profession, the state, and ultimately society for his conduct and performance. He is committed to performing his duties in the most competent manner possible, applying his energy and skill imaginatively and enthusiastically to the work of his unit. While striving to preserve the objectivity, autonomy, and integrity of intelligence, he is nevertheless responsive to the evolving needs of his client, and seeks to anticipate those needs. He respects the confidence of his client and ensures the protection of information concerning sensitive intelligence sources and methods. He respects the security of intelligence materials entrusted to his care and acts responsibly in authorized contacts with representatives of the press.

CORPORATE CHARACTER Intelligence is a public, bureaucratic profession, as are the military and diplomatic professions. The right to engage in intelligence activities inheres in membership in an authorized state intelligence institution. Entrance to the profession is restricted to those meeting qualifications set by the bureaucracy. The bureaucratic structure sets the performance and ethical standards for the profession.

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The corporate structure of intelligence includes elements of the military services and of the departments of State, Defense, Treasury, Justice, and Energy, as well as the CIA. It includes intelligence schools, journals, research centers, and the body of custom and tradition. There are no professional societies outside the bureaucracy other than those consisting of retired intelligence officers, and although some of these are dedicated to furthering public understanding and acceptance of the intelligence profession, they exercise no authority over its practitioners. The sensitivity of intelligence work limits outside contacts; indeed, personnel in certain intelligence activities are unable to publicly acknowledge their profession. Intelligence services are bureaucratically structured. Within the profession, levels of competence are distinguished by grade, and duties are differentiated by a hierarchy of office. Grades reflect personal achievement measured in terms of experience, seniority, education, and ability, and are awarded by the bureaucracy in accordance with general principles. As in other bureaucracies, authority derives from office, eligibility for which stems, in large measure, from grade.

CONCLUSIONS AND IMPLICATIONS It is clear that the vocation of intelligence meets the principal criteria of professionalism in terms of expertise, responsibility, and corporateness. While it falls somewhat short of the ideal-type profession—as do all other professions—the fundamental character of intelligence as a professional activity is undeniable. Members of the profession include not only those employing skills unique to intelligence work, but also those skills primarily of other disciplines utilized within the bureaucratic framework of intelligence organizations. The professionalization of American intelligence is a phenomenon of the twentieth century. Although career intelligence specialists appeared in small numbers in the military services after World War I, it was not until World War II that the professional military intelligence corps evolved. There was no civilian career intelligence service until the founding of the CIA in 1947. Now civilians can follow professional intelligence careers in a number of federal departments and agencies. What are the implications for individuals and organizations of the professionalization of intelligence? First, professionalization is a process, rather than an end; it is the process through which occupations take on characteristics that set them apart from less specialized and structured activities. Because professionalization is a relative rather than absolute quality, the process is never complete; the professionalization of intelligence is a continuing process.

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Second, professionalism reflects a state of mind; it connotes the development of a set of behavioral norms resulting when practitioners adopt responsible attitudes toward their vocation. The professional intelligence officer takes his “calling” seriously, aspiring to high standards of competence in performing it. He consciously seeks to master the special skills related to this work, to extend his knowledge of the history of intelligence and of his special discipline, and to expand his awareness of how his function contributes to the intelligence process and of how that process serves its bureaucratic clients. Third, the intelligence professional accepts responsibility for his own professional development. He sets personal development goals commensurate with a realistic assessment of his interests, his talents, his career aspirations, his skill level, his previous education and experience, and whether these are consistent with the objectives of his organization. In consultation with his superiors and appropriate training and development officers, he works systematically toward his goal through a combination of activities, which may include self-directed reading and study of professional literature, attendance at formal training courses, and career-broadening assignments to units engaged in other areas of the profession. He also freely shares his knowledge and experience with his peers, accepting a responsibility to assist others in enhancing their professional competence. This applies to functional intelligence specialists as well as those within the intelligence profession whose focus is on other disciplines. Supervisors and managers have a particular responsibility to ensure the professional development of their subordinates, for the effectiveness of the unit is contingent on the competence of all its members, not just of its leader. High levels of competence at subordinate levels lead to highquality output. This frees higher-echelon officers from the necessity to rework the product, enabling them to turn their attention more thoroughly to planning the activities of the unit. Recognizing their responsibility for developing subordinates, managers seek to enhance their own capabilities in counseling and coaching, to acquire skills in group dynamics and team development, and to increase their knowledge of administrative and leadership techniques. At the same time, they seek to broaden their own perspective of the intelligence process and of the national security decision-making processes it serves. Intelligence organizations—as public bureaucratic institutions—have a responsibility to advance the process of professionalization as a means of enhancing their effectiveness in serving the state. Consequently, senior intelligence executives foster professionalism by establishing processes for orderly career progression; this is achieved by providing opportunities for individuals to master appropriate skills and acquire the requisite knowledge through training and educational programs. By encouraging the study

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of the intelligence process, they encourage the development and promulgation of professional theory to keep pace with the changing nature of the process and of its international milieu. Huntington’s assertion of a correlation between effectiveness and professionalism is applicable to intelligence. Many of the problems that have given rise to criticism of intelligence can be attributed to a lapse of professionalism in intelligence services. Deficiencies in expertise, unmet responsibilities, and corporate weaknesses are apparent in most of the socalled intelligence failures from Pearl Harbor through the Bay of Pigs to Iran. Individual and corporate commitment to professional excellence can diminish the likelihood of such deficiencies in the future. The effectiveness of intelligence can be enhanced and public confidence in its performance restored, through the further professionalization of the vocation and its institutions.

2 Office of Naval Intelligence’s Special Intelligence Memorandum Background by Randy Balano and Memorandum by John L. Riheldaffer

BACKGROUND Upon its establishment in 1882, the Office of Naval Intelligence (ONI) focused primarily on overt collection of technical intelligence in order to support the modernization of the U.S. Navy, as well as providing strategic intelligence to war planners. Although ad hoc efforts were made by naval attachés to employ covert agents during the Spanish-American War, they did not prove particularly effective.1 It was not until the 1930s that ONI began contemplating the creation of a dedicated covert foreign intelligence collection program. The perceived need arose from the frustration of ONI’s standard efforts to collect relevant information from potential adversaries Nazi Germany and Imperial Japan. Two ONI officers compiled preliminary material to develop an espionage manual, and the head of ONI’s Domestic Intelligence Branch was placed in charge of espionage functions in 1939.2 In June 1940 this function was transferred to ONI’s Foreign Intelligence Branch (OP-16-F-9) and its newly established Special Intelligence Section, the purpose of which was to recruit, train, and administer secret agents. Commander John L. Riheldaffer, a retired naval officer who had been recalled to active duty, assumed control of the Special Intelligence Section in January 1941. Following his first retirement from active service, Riheldaffer was employed by General Motors Corporation Overseas Operations, and in this capacity traveled extensively in Europe, Asia, Africa, Australia, India, and the Far East from 1928 until 1941.3 Riheldaffer sprang quickly into action, working with the State Department to get naval officers assigned as vice consuls to posts throughout North Africa (Algiers, Casablanca, Oran, Tunis, and Dakar). Riheldaffer also 13

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oversaw the development of an intelligence network along the Pacific coast of Mexico. He used his business experience to cultivate contacts within overseas corporations who might be in a position to furnish information concerning potential enemy countries. He also employed a number of agents under special contract around the world. These individuals traveled in their respective areas of interest for open purposes and accepted the task of collecting and reporting information that might be of value to the navy. When the Office of the Coordinator of Information (COI, the predecessor to the OSS) was created by presidential executive order in July 1941, most of the activities initiated by ONI’s Special Intelligence Section were transferred to the COI, with the exception of the agent network in Mexico, which continued under navy direction.4 In the memorandum that follows, dated February 1941, Riheldaffer explicates the rationale for creating the Special Intelligence Section and offers a dispassionate assessment of the seamier aspects of such an endeavor.

NOTES 1. Jeffery M. Dorwart, The Office of Naval Intelligence: The Birth of America’s First Intelligence Agency, 1865–1918 (Annapolis, MD: Naval Institute Press, 1979), 64–65. 2. Wyman H. Packard, A Century of Naval Intelligence (Washington, D.C.: Office of Naval Intelligence/Naval Historical Center, 1996), 130. 3. Official U.S. Navy biography, www.uboatarchive.net/POWInterrogation RiheldafferBio.htm. 4. Administrative History of the Office of Naval Intelligence in World War II, Part VII: Special Activities (Z Branch), Operational Archives, Naval Historical Center, 849–52.

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NAVY INTELLIGENCE MEMORANDUM CONFIDENTIAL NAVY DEPARTMENT OFFICE OF NAVAL INTELLIGENCE WASHINGTON In reply refer to No. Op-16-F-9, February 3, 1941. MEMORANDUM for the Director:

Via Head of Foreign Branch:

Subject: Special Intelligence Section 1. The Special Intelligence Section of G.N.I. (F-9) was conceived and set up with the mission of organizing and operating an overseas espionage system. 2. These operations contemplate all activities which are essential for obtaining military, naval, political and economic information, both during periods of peace and after a war is declared. 3. They contemplate undertaking those activities which cannot, for diplomatic reasons or reasons of established policy, be handled by the military and naval attaches or the diplomatic or consular personnel. 4. The most basic principle on which such an organization must operate is SECRECY and this fact must be recognized if results are to be expected. We must presuppose an active and intelligent espionage on the part of foreign countries and must never, under any circumstances, under-estimate their ability to trace our own activities. 5. In order to accomplish the mission assigned to F-9 ordinary naval practices and usages must be disregarded. The F-9 Desk in D.N.I. must become merely a point of liaison between the various departments of the government and a complete organization entirely divorced from all visible contact with the government. Furthermore the government, and especially the Navy Department, should be able to deny all affiliation with the outside organization or such part of it as may not be open and above board. 6. In order to develop an organization capable of carrying through the mission assigned F-9 to a successful conclusion there are certain self evident, fundamental facts: which must be faced: (1) Espionage is by its very nature not to be considered as: “honorable” or “clean” or “fair” or “decent.” It consists in obtaining information by stealth, in encouraging and executing sabotage, in wrecking the civilian and military morale, and in combatting equally subversive activities directed against itself. The objectives

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7.

8.

9.

10.

are accomplished in large part by two appeals: (a) to patriotism and (b) to the lowest nature of individuals—greed, lust for power, revenge, etc. By far the largest number of AGENTS or EMPLOYEES are taken from the petty criminal class; mal-contents, revolutionaries; refugees or psychopaths. In general only the very highest in the organization work purely for patriotic or selfless reasons. (2) To organize, house and direct such an organization, meet travel expenses, payrolls, pay bribes, protect agents, etc., will require large sums of money which cannot be accounted for by any of the recognized, legitimate methods of accounting. It is extremely doubtful if any really worth while organization could be developed—at a cost below $250,000 per year. These funds would have to be entrusted to some individual to be used at his discretion and practically without the possibility of accounting for it except in the most general way. This is not only a grave responsibility upon the office furnishing the funds but an even more grievous and dangerous responsibility on the individual responsible for the ultimate disbursements. (3) Espionage organizations of other nations have been built up over years. No system can be put into operation in a short period of time, and more especially with the disturbed conditions already existing throughout the world. A few of the objectives can be accomplished within a reasonably short time but to obtain valuable information from within an enemy country will require months of intense effort. Granting the correctness of the above fundamentals the possibility of enabling F-9 to accomplish its mission depends upon recognizing the necessity of meeting the conditions stated. Granted that this can be done I am outlining below what I believe is the proper method of initiating the work. The entire responsibility of organizing the Special Intelligence Section must be placed on one individual. This individual must accept the full responsibility, including the onerous responsibility of handling government funds without an accounting. One officer should be assigned to the F-9 Desk in O.N.I. His duties will be liaison between the undercover organization and government departments. He should be acquainted only with the head of the undercover organization and such parts of it as are ostensibly open and above board. The selection of personnel, office sites, methods of operation, etc., are the responsibility of the head of the undercover section. Inasmuch as much of the personnel will necessarily come from classes which can

Special Intelligence Memorandum

11.

12.

13.

14.

15.

16.

17.

17

bear little investigation, an investigation will be possible or desirable only in a few cases. These can be handled in the usual manner on request. The higher members of the organization will come from people of known probity and patriotism where an investigation has already been made or can be made without attracting attention. The duties of the organization in order of importance are: (1) Obtaining information within enemy countries; (2) Furnishing subversive groups within enemy countries with assistance in their work and using every effort to break down civilian and military morale; (3) Decontamination of minority groups in the U.S.A.; (4) Breaking down subversive groups or bands in the U.S.A. (Probably FBI); (5) Propaganda to gain adherence of minority groups in the U.S.A.; (6) Propaganda in other countries; In the order of possibility these are probably 5, 6, 3, 4, 2, 1. In order to function at all our organization must have an open and above board object which is mildly warlike. The Council for Democracy, or similar organization, can be used as a front without their knowledge of the more important work being done behind the screen. In conjunction with this “Front” an office can be established in some metropolitan center, probably New York, to prepare and sift propaganda materials to be used by or in conjunction with the society in question. This office would also be open and above board to all appearances, and in great part in fact. It would be the reason for the presence of the [NO. 1] away from Washington while still connected with the service. The duty of this office would be to see that favorable propaganda information is furnished to newspapers and periodicals in the smaller centers overseas and in our own country where minority groups are predominant. A second office must be set up whose function is definitely under cover. This office will endeavor to get information, letters, etc., into enemy countries or occupied countries, establish contacts, “post offices,” etc., with subversive groups in those countries. Assistance both in money and materials must be furnished these subversive groups to aid them in the underground war. Either this office or others will be charged with actual espionage activities. In both the second and third offices every effort must be made to maintain absolute secrecy even to the extent of concealing the identity of individuals from each other. The only common head of these various activities must be the one man placed in charge and possibly one assistant to provide against

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the possibility of the organization being broken up by the illness or death of one individual. All reports will be sifted down to the single head and the only contact between the organization and the government will be this head. Reports and information will, generally, be sent to the government department through the liaison officer at Desk F-9. If practicable personal reports can be made by the head to some one officer (such as the C.N.O.) No other person either in or out of the Department should know anything about the undercover part of this work. 18. The above is of necessity and by design, left in a very general form. The employment of secret agents, their payment, the methods used in obtaining information, etc., should be known to as few people as possible. Preferably only to one person, never more than two. Experience in the Department for the past fifteen days has demonstrated the utter impossibility of any “secret” work being done. A prospective agent who has visited and talked to half a dozen desks in full view of all the office personnel, and who enters, and leaves the Department several times is no longer “secret” if we are to credit our men with more than sub-average intelligence. 19. The United States has always prided itself on the fact that no spies were used and that its intelligence officers accredited overseas have always kept their hands immaculately clean. With the last part of the above I am in hearty agreement as much more can be obtained by an attache who conducts himself honorably and gains the confidence of others than by subversive activities. The first part is also admirable in the abstract. However, a dreamer is never safe in a world of realists and we are faced today with very real conditions, where national consciences are atrophied, promises made only to be broken, and every form of deceit, sabotage and murder are hailed as heroics if the pretense of patriotism is attached. 20. We can only meet underhand[ed] methods by similar methods and our late start will mean exactly the same thing as our late start in armaments, etc., a tremendously increased cost if results are to be had. Many mistakes will be made, much money will be used without return, the wrong agents will be selected and there will be a certain amount of loss. By keeping the undercover organization completely out of the government circles and, in so far as possible, out of the cognizance of people in the government, military or naval service, there can be little if any leak of information FROM our agents. Declassified on August 14, 1992 [Ed.]

3 Introduction to the Doolittle Commission Report on the Covert Activities of the Central Intelligence Agency

In July 1954 President Dwight D. Eisenhower commissioned Lieutenant General James Doolittle, USAF, to report on the CIA’s covert activities and to make any recommendations to improve the conduct of these operations. On 30 September 1954, Doolittle submitted his sixty-nine-page classified report directly to Eisenhower. Declassified in 1976, the Doolittle Report contained forty-two recommendations. The most widely quoted paragraph of the report appears in the introduction, where it summarizes American attitudes toward activities that may be seen as the antithesis of American ideals. 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. . . . If the United States is to survive, long-standing American concepts of “fair play” must be reconsidered. We must develop effective espionage and counterespionage services and 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 be made acquainted with, understand and support this fundamentally repugnant philosophy.

This report addressed the need to professionalize intelligence, including several recommendations calling for more efficient internal administration, including recruitment and training procedures, background checks of personnel, and the need to “correct the natural tendency to over classify documents originating in the agency.” It also called for increased 19

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cooperation between the clandestine and analytical sides of the agency, and recommended that the Inspector General operate on an Agency-wide basis with authority and responsibility to investigate and report on all activities of the Agency.

4 Is Ethical Intelligence a Contradiction in Terms? Jennifer Morgan Jones

The idea that the term “intelligence ethics” is an oxymoron is a long-standing joke in the intelligence community. The sentiment was even quoted in the Times (London) as recently as 2 February 2006 by long-serving CIA officer Duane Clarridge.1 There continue to be those who take a particularly blasé attitude toward the importance of ethics in the practice of intelligence— the Times wrote “‘Cold War or no Cold War, nations routinely spy on each other,’ and the British Security Service’s official handout takes the view that ‘spying has been going on for centuries and as nations emerged they began spying on each other and will probably always do so.’”2 However, can the reason that spying has existed throughout history justify dismissing a discussion of the modern ethical dimensions of the intelligence profession? It must be considered that defending an institution based on longstanding existence would also legitimize practices such as slavery, racism, child labor, and dictatorial rule, which have long been acknowledged in Western culture as morally unacceptable. Although the place of intelligence has traditionally been determined by ideas of national sovereignty, threats, and interstate competition, the progression of Western states toward liberal democracy demands that intelligence practices be reevaluated to reflect the values and mores of the evolving society it serves. Michael Quinlan states: “the human being is an ethical animal—that is part of what it means to be human.”3 This sentiment that supports the application of ethics to the intelligence profession is persuasively sustained by Toni Erskine’s claim that because intelligence collection is a “human endeavor that involves choice and deliberation” it is necessarily “vulnerable to ethical scrutiny.”4 It seems inherently contradictory for liberal democracies, exemplified by the United States, to espouse democratic values such as 21

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civil liberties, human rights, and the rule of law without considering their adherence within intelligence policy and practice.5 Intelligence collection does not operate in a moral vacuum; it takes place in a world where governments, particularly Western democracies, are held to some kind of ethical and moral standard. At the end of the day, ethical considerations matter because by virtue of moral reasoning, the citizens of liberal democracies expect their governments to pursue ethical foreign policies.6 In the post–September 11 security environment, amid criticism of the intelligence community following the United States’ decision to intervene in Iraq and the publicity of interrogation techniques used on prisoners at Abu Ghraib and Guantanamo, there is a growing need to make clear statements about what constitutes ethical intelligence.7 There are several distinct models that can be evaluated to provide a paradigm for “intelligence ethics.” These ideas are far ranging and potentially disparate in their judgments of the same actions. Reconciling the imperatives of an effective intelligence capability to further the security objectives of the state with the quite different, and in some respects opposite, imperatives of democracy provides a challenge that requires further deliberation by scholars, intelligence professionals, and policy makers.8 This essay will assess the suitability of idealism, realism, consequentialism, and just-war theory as approaches to evaluate the ethical consideration of intelligence activities. It will then consider the potential moral damage to the intelligence officer as a human being and moral agent during the collection process. The conclusion of this assessment will demonstrate that the determination of ethical intelligence is not black and white on any practical level; ethical questions about intelligence do not necessarily have right answers, but asking and debating them ensures that ethics are being considered alongside actions. Intelligence as a discipline is wide-ranging and diverse in its practice, and it would be unhelpful to attempt to consider all of its activities under one banner. As a framework to this essay, the considerations of ethical intelligence will be specifically applied to methods of foreign intelligence collection. Covert action, which is generally considered the most morally contentious area of the intelligence spectrum, will not be considered in this discussion. The continuing debate over whether covert action is an inherent part of intelligence and the nature of this agency to have a direct impact on foreign affairs rather than an information-gathering capacity separate it from the traditional realm of foreign intelligence gathering that will be discussed here.9

IDEALIST/DEONTOLOGICAL APPROACH The deontological approach is based on the works of idealist philosophers such as Immanuel Kant, who stated that “moral conduct means acting

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within a constraining framework of principles that are independent of consequential considerations.”10 This means that if an action is judged to be morally unacceptable, it cannot be used in the pursuit of any end, no matter what the possible circumstance. Morality is regarded as an absolute: “Thou shalt not kill” is not an aspiration, but an unchanging maxim without exception, even for self-defense. Kant believed in the concept of “categorical imperatives” that had to remain absolute since human beings had a natural inclination to make excuses for failing to adhere to moral principles.11 To be classified as a morally acceptable action in Kantian philosophy the principle guiding the action must be universal, and any rational actors must be treated as having value as ends in themselves, thus respecting the principle of human dignity.12 In essence, idealism is deeply rooted in our consideration of what it means to behave morally because at its core is the Golden Rule that we are taught as children, to treat others as we expect to be treated. Many of the methods routinely used by intelligence officers in covert gathering operations, such as deception, theft, trespass, and the manipulation of human sources, are thus morally condemned by Kant’s categorical imperative. For example, it is impossible to universalize a maxim of deception without contradiction because if everyone deceives, both truth and deception lose meaning.13 Likewise, the manipulation or coercion of a controlled human source would be condemned because it uses a human actor as a tool toward a political end. For the purpose of intelligence collection, the application of a deontological approach would mean that many currently used collection methods would be considered ethically unacceptable and could not be condoned by reference to the information they produce. This fits in well with Kant’s obvious disdain for espionage, which he deemed “intrinsically despicable” since it “exploits only the dishonesty of others.”14 It is clear that from an ethical absolutist perspective the current practice of intelligence gathering would need to be much changed, if not completely renounced.15 A discussion of this moral standard inevitably questions the basis of covert intelligence and leads us to explore the potential for security needs to be fulfilled through overt and clean sources alone. Overt sources clearly do not pose any ethical constraints. “Clean” sources would be dependent on collection methods that pass Kant’s categorical imperative, such as observation (without interference) or the acceptance of freely given information from an independent human source. Although there are certainly many sources of useful open and clean information available, and agencies should make good use of them, the prospect of achieving the required degree of intelligence from tightly closed societies or terrorist cells is limited. In effect, a deontological approach would entail a radical change to the intelligence community that would hamper its effectiveness

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by prohibiting many of the activities that intelligence gathering is generally understood to encompass.16

REALIST On the other end of the moral spectrum sits the realist approach to ethics epitomized by thinkers such as Niccolò Machiavelli and Thomas Hobbes. Contrary to popular belief, realism is a legitimate ethical perspective that equates moral reasoning with self-interest, prudence, and raison d’état.17 In this system, individuals consent to a relationship with the government as citizens of a particular state. In return for giving up some of their natural freedoms, citizens expect the state to protect them and pursue their interests. In effect, this contract creates an ethical responsibility for the state to provide national security. In the realist system of moral reasoning, actions can be justified by their importance to the good of the political community, which is in opposition to the idealist perspective of considering all human actors as equally valuable. Importantly, realism is distinct from a nihilist perspective: It does not hold that morality is incompatible with the practice of international politics; instead it argues that acting in the national interest is itself a moral principle.18 Realist assumptions warrant assessment, as they represent many of the assumptions and debates surrounding the current practice of intelligence gathering. To achieve the morally justifiable duty of national security, governments have the responsibility to determine potential and existing threats through the medium of intelligence gathering. From a realist perspective, covert intelligence is not only desirable but ethically necessary to fulfill the inherent duties of responsible government.19 In the words of Hobbes, governments are entitled to “do anything that seems likely to subvert, by force or by craft, the power of foreigners whom they fear”20 toward the ends of maintaining national security. This means that nothing is ostensibly offlimits for states pursuing legitimate information goals abroad. This moral argument supports the potential for a more creative and aggressive approach to intelligence collection that has become an important position in the post–September 11 security debate. Calls to “let the CIA be the CIA,”21 “take the gloves off,”22 and become hunters rather than gatherers 23 abound in a time where intelligence services are being called on to become the “first line of defense” against the growing asymmetric threat of terrorism. Although generally accepted within the intelligence community, the realist mentality is problematic because few people wholeheartedly subscribe to the view that any activity or conduct is acceptable in pursuance of an objective. A moral minimum that extends beyond the national interest exists, even if knowing where exactly to draw the line can be difficult.24

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Foreign intelligence is not, by and large, conducted by people lacking moral fortitude or the capacity to recognize ethical standards, but realism advocates that these standards be lowered to accommodate the perceived national purpose. There is always the worry that this will result in a moral slippery slope where once lowered, it becomes simpler and even routine, thereby reducing ethical resistance to repugnant activities.25 Having no hard limits on international political behavior also fosters a sense of insecurity and distrust in diplomatic relations, which is not conducive to promoting security goals, particularly in countering the asymmetric threat of terrorism. The realist perspective could be improved if the moral obligation to the political community was broadened to represent a coalition of friendly states working together to counter mutual security threats.26 However, this is made difficult by the realist maxim that “there are no friendly secret services, only the secret services of friendly states.”27 Idealism and realism are the opposite ends of the scale when defining ethical intelligence and create an important framework and starting point for the evaluation of ethical models of intelligence actions. These perspectives are rigid and attempt to identify black-and-white answers to moral questions. Clearly, this isn’t helpful in a discipline that often crosses into shades of gray; therefore, ethical models need to take into account the necessity for flexibility and moral reasoning to create a practical model for an intelligence community that will remain effective while also abiding by the moral standards of the society it serves. The consequentialist and justwar theory approaches to ethical intelligence can be viewed as pragmatic idealism because they aim to combine aspects of the idealist and realist perspectives.

CONSEQUENTIALIST APPROACH Like the realist perspective, consequentialism is more concerned with ends than means, judging actions by the value of their consequences. However, consequentialism also takes a page from idealism in considering the detrimental impact of actions that cause harm. In this system “right” actions produce the best overall outcome based on an ethical balance sheet.28 This “moral accounting” makes it possible to consider the overall benefit gained from intelligence collection (in promoting security and international stability, for example) to outweigh the morally questionable methods used to obtain it. Interestingly, these benefits can foster either national or international goals. For example, particular intelligence collection methods could get the green light if their ends promoted the idealist goal of international peace or a realist concern for fewer casualties on our side. Act consequentialism can be used to justify harsh and extreme collection methods such

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as torture or coercion as morally acceptable so long as they maximize good ends.29 However, it does not advocate an “anything goes” philosophy on all, or even most, occasions; acceptability is contingent on the ends outweighing the means. A clear example of consequentialist ethics would be the decision to torture a prisoner to gain knowledge about an imminent terrorist operation. In this model, the moral damage of torture is outweighed by the beneficial knowledge that could prevent a terrorist operation that would harm innocents. In theory, the idea that morally questionable means can be ethically pardoned if they achieve beneficial ends is attractive. However, this model is particularly problematic to put into practice. For one, determining the relative moral weight of negative drawbacks and positive outcomes is all but impossible because it assumes that there is a universal understanding of “good.” Clearly, the definition of a “good” outcome depends on who it is for—is it good for the military, good for the government, or good for the world? Presumably “good” on a global scale would be considered most relevant, but this is also notoriously difficult to define. Also, it is worth considering Erskine’s caution that “intelligence knowledge is used to help shape policy; policy outcomes cannot be used to justify how this information is collected before the fact.”30 In effect, how can an intelligence professional be certain that the information gained from using torture will indeed be beneficial enough (to anyone) to outweigh the act before the act is completed?

JUST-WAR/JUST-INTELLIGENCE THEORY Just-war theory has become a useful method for determining the legitimacy of using force in international relations. It supports the moral conclusions and aspirations of the idealist, while recognizing that nations cannot be expected to sacrifice their vital interests to legitimate security threats.31 “Just cause” for war is determined by the stringent guidelines of last resort, right intention, proportional means, probability of success, regard for human consequences, and discrimination.32 Given the similarities in the military and intelligence professions, it seems plausible to apply a just-war analysis to an intelligence framework in order to create a just-intelligence model. Outside of a deontological perspective, it is generally agreed that military and intelligence professionals must sometimes act in ways that are considered unacceptable in a civilian context. A soldier might have to kill in the line of duty or an intelligence officer might employ deception to gain sensitive information; if these actions were performed outside of the professional sphere they would be labeled murder and lying. But just as there are moral boundaries on the kinds of activities military professionals

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are morally permitted to engage in, there also need to be boundaries for intelligence professionals.33 Although this analysis recognizes that there are instances when measured acts in the face of immorality are necessary for intelligence professionals to effectively do their job, it maintains that the violated values remain absolute in a universal sense.34 Therefore, the deontological imperative that stealing is wrong remains, even though an intelligence professional may on occasion be required to steal. Maintaining the ethical aspiration of these values ensures that moral questions remain present in the decision-making process of professionals before they undertake actions. Unlike the consequentialist argument, just-war tradition does not argue that, even in war, aspiring to good aims and expecting a positive outcome justifies the use of any means. There is the expectation that in bypassing normal moral constraints, the individual also becomes legitimately subject to similar tactics. Quinlan uses the example that “in accepting that there is an entitlement if necessary to kill enemy soldiers, it holds that by the nature of their role, such soldiers forfeit the normal human right not to be killed.”35 A just-war approach to foreign intelligence collection would acknowledge the necessity of using covert and intrusive methods, but exemptions from ethical norms have to be justified and limited.36 Several scholars have successfully employed sports and “game” analogies to aid in identifying appropriate targets for espionage. Tony Pfaff uses the example of football, stating that teams are expected to exploit the disadvantages of players on the opposing team, such as a weak quarterback, to their advantage so long as the rules are not broken. “Furthermore, the teams are free to deceive or otherwise manipulate each other as to what their next play is . . . because they both agree to be on the field.”37 To justify becoming a target, an element of consent is necessary; as such, the players have implicitly consented to being deceived or manipulated by agreeing to participate in the game. This is a way of filtering out “spectators” or civilians from being the target of espionage or military actions. Angela Gendron has developed a simplified just-intelligence matrix that identifies appropriate intelligence targets and methods depending on the degree of “just cause” (see the next page). Intelligence targets not only need to be in “the game” but also need to pose, at the minimum, a legitimate potential threat to security to warrant gathering covert intelligence. As Pfaff points out, “[I]t is wrong to deceive and harm in order to obtain secrets from Ruritania simply to know more about Ruritania than the Ruritanians.”38 Iraq, being clearly hostile, provides “just cause” for fully intrusive methods that are limited only by possible deontological absolutes, such as torture, which is considered too corrosive of democratic ideals and principles by many reasonable people.39 Using the matrix with respect to potential American intelligence targets, we can easily judge that it would

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be inappropriate to bug the embassy of Great Britain, whereas it might be legitimate to undertake such methods against Iran. The following are Gendron’s guidelines for determining when it is necessary, appropriate, and ethical to gather secret intelligence and what degree of intrusiveness is justified based on a just-war analysis.40 Target: Regime: Threat Assessment: Objective: Collection Intelligence: Means:

Hostile Opaque Manifest Clarify Covert Limited Intrusiveness

Adversarial Permeable Deter Latent Fully Intrusive Overt

Passive Transparent Potential Monitor Covert Open Source

HUMAN FACTORS So far I have discussed the impact of moral concerns on states and people in a broad sense. If ethics are truly what make us human, it seems only fair to discuss the impact of intelligence gathering on individuals, particularly those who do the gathering. The above models for assessing ethical intelligence focus on the potential harmful effects of actions taken by intelligence officers while collecting information. It is often implicit that this harm is being done to others, and the models are not consciously reflective of the potential damage to the intelligence officer as a moral human being. There is also the issue that deeming an action ethical by virtue of its application to a particular moral framework does not necessarily erase the perceived blemish on the integrity of an individual in his or her own mind. The idea that immoral actions, despite justification, contribute to a personal moral deficit is presented in contexts ranging from Plato and Kant to the Bible.41 An ethically acceptable justification for breaking moral absolutes does not relieve those who violate them from all guilt.42 This perspective is acknowledged by intelligence professionals; in a “1998 study many members of the CIA expressed concern that serving a perceived ‘cloudy moral purpose’ made it more likely that people will become corrupted by the ‘dirty’ aspects of the profession.”43 The potential for the ethical standards of intelligence professionals to be dulled or changed over time is demonstrated in an example of an intelligence officer who was questioned following involvement in the illegal covert operation code-named Chaos. When asked if he had questioned the legitimacy of the operation, he responded, “The one thing we were concerned about was this: will this course of action work; will we reach the objective that we desire to reach? As far as legality is concerned, morals or

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ethics, it was never raised by myself or anyone else. I think this suggests that in government we are amoral.”44 Presumably, on entering government service this official, like most reasonable individuals, valued a concept of ethical behavior recognizable in liberal democracies; nonetheless, he came to believe that the appropriate conduct of an intelligence officer was not concerned with such matters. Erskine puts intelligence professionals in the category of “moral agent,” which refers to those actors whose possession of certain capabilities for deliberation and action mean that we can expect them to respond to moral guidelines and, by extension, we can hold them accountable for their conduct.45 Intelligence agents certainly would have the capacity to make decisions based on ethical considerations and it is generally true that we expect them to. The aptly named Nuremburg defense, or “just following orders,” is no longer deemed acceptable because individuals are expected to take a certain moral responsibility for their own actions.46 However, how can we expect them to remain capable as moral agents when we require them to overshadow normal societal mores with a set of professional ethics that allows them to conscionably “break the rules”? This is not to suggest that intelligence officers are in any way immoral or “bad” people, but the routine exposure to exemptions from traditional moral absolutes must numb the natural gut response that makes most reasonable humans question the morality of decisions before acting. Given that intelligence officers are expected to operate in two worlds with somewhat contradictory moral standards, there is also the possibility for agents to develop “a form of moral schizophrenia, perhaps thinking of himself as a good officer (loyal, obedient, diligent) and a bad person (because of the immoral things he does or thinks he has to do).”47 The concern for the moral well-being of individual intelligence officers is justified on two levels. First, using Kantian logic, the intelligence officer must be considered as an end with value in itself and not simply as a tool for retrieving information for his regime. Second, if the objective is to determine an effective model for ethical intelligence, it must be considered that ultimately an organization is only as ethical as the people who work there. Established rules and standards are meaningless if they are not upheld and routinely enforced. It is interesting to note that major roles in the management of the CIA have primarily been held by officers whose careers were spent in clandestine activities. Drexel Godfrey suggests that the “years of hardening in the ugly business of source control and penetration of foreign capital [had] surely taken their toll”48 and were a contributing factor to the process of compartmentalizing ethically questionable activities such as Chaos and human drug experimentation prior to Richard Helms’s conviction. This example illustrates that neither a government nor an intelligence agency

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can afford to be complacent about the development of a working environment in which concerns for reaching a desired objective replace morally right actions.49 Clearly, intelligence professionals are not impervious to the problems moral issues pose, and in making difficult decisions they should be guided by the current societal values and mores.50 This illustrates the importance of discussing and defining the boundaries of ethical intelligence so that morally contentious decisions and actions can be appropriately reviewed by oversight bodies. This essay clearly demonstrates that ethical concerns are integral to the practice of intelligence, particularly in a liberal democracy. Combining the perspectives discussed here it would be possible to justify virtually any intelligence action or operation; however, organizations must subscribe to an ethical model that best represents both the goals of the institution and the morals and values of the community it serves. Former CIA director Admiral Stansfield Turner stated that “[t]here is one overall test of the ethics of human intelligence activities. That is whether those approving them feel they could defend their actions before the public if the actions became public.”51 This is a fair judgment; intelligence operations should be justifiable before the people of the nation, even though the people must trust oversight committees to ensure accountability in their name due to the nature of the profession. The variety of ethical approaches available to the intelligence community has demonstrated that there is no one right answer when it comes to making decisions on intelligence matters. The fact that these debates are being undertaken demonstrates that ethical matters are being considered by policy makers and the intelligence community. This can be seen as the most important aspect of maintaining an ethical standard within intelligencegathering activities. By continuing to question the moral justification of actions, professionals limit the risk of becoming dulled or accustomed to skirting the boundaries of traditional morals during official conduct.

NOTES 1. Michael Quinlan, “Just Intelligence: Prolegomena to an Ethical Theory,” Intelligence and National Security 22, no. 1 (2007): 1. 2. Michael Herman, “Ethics and Intelligence after September 2001,” in this volume, chapter 8; originally published in Intelligence and National Security 19, no. 2 (2004): 342. 3. Quinlan, “Just Intelligence,” 2. 4. Toni Erskine, “‘As Rays of Light to the Human Soul’? Moral Agents and Intelligence Gathering,” in this volume, chapter 9; originally published in Intelligence and National Security 19, no. 2 (2004): 359. 5. Tony Pfaff and Jeffrey R. Tiel put forward the argument that a universal system of ethics needs to be developed for intelligence services. They discount the idea of

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a system based on the cultural norms of liberal democracy because it encourages intelligence professionals to think in a “good guys versus bad guys” frame of mind. I would suggest that although this idea has merit, it is more idealistic because the importance of ethics to intelligence services necessarily depends on societal mores and expectations. For the full argument see Tony Pfaff and Jeffrey R. Tiel, “The Ethics of Espionage,” Journal of Military Ethics 3, no. 1 (2004): 2. 6. Angela Gendron, “Just War, Just Intelligence: An Ethical Framework for Foreign Espionage,” International Journal of Intelligence and Counterintelligence 18, no. 3 (2004): 409. 7. Erskine, “Rays of Light,” chapter 9, original publication p. 359. 8. Gendron, “Just War, Just Intelligence,” 402. 9. Michael Herman, Intelligence Power in Peace and War (New York: Cambridge University Press, 2006), 55. For an evaluation of the ethicality of covert action see James A. Barry, “Covert Action Can Be Just,” in Strategic Intelligence: Windows into a Secret World, ed. Loch K. Johnson and James J. Wirtz (Los Angeles: Roxbury, 2004). 10. Herman, “Ethics and Intelligence,” 344. 11. Gendron, “Just War, Just Intelligence,” 404. 12. Erskine, “Rays of Light,” chapter 9, original publication p. 372. 13. Erskine, “Rays of Light,” chapter 9, original publication p. 372. 14. Herman, “Ethics and Intelligence,” 342. 15. E. Drexel Godfrey Jr., “Ethics and Intelligence,” in Strategic Intelligence: Windows into a Secret World, ed. Loch K. Johnson and James J. Wirtz (Los Angeles: Roxbury, 2004), 398. 16. Erskine, “Rays of Light,” chapter 9, original publication p. 377. 17. Erskine, “Rays of Light,” chapter 9, original publication p. 364. 18. Erskine, “Rays of Light,” chapter 9, original publication p. 364. 19. Pfaff and Tiel, “Ethics of Espionage,” 4. 20. Erskine, “Rays of Light,” chapter 9, original publication p. 365; emphasis mine. 21. Frederick P. Hitz, “Unleashing the Rogue Elephant: September 11 and Letting the CIA Be the CIA,” in Strategic Intelligence: Windows into a Secret World, ed. Loch K. Johnson and James J. Wirtz (Los Angeles: Roxbury, 2004). Hitz argues for some changes to the laws and rules governing the intelligence community, such as reassessing the possibility of using “angel” assets for intelligence gathering in order to be successful in preventing international terrorist threats. 22. Pfaff and Tiel, “Ethics of Espionage,” 2. 23. Martin Rudner, “Hunters and Gatherers: The Intelligence Coalition against Islamic Terrorism,” International Journal of Intelligence and CounterIntelligence 17, no. 2 (2004). Rudner argues for more creative and involved uses of intelligence agencies, particularly the potential for cooperation between intelligence coalitions to combat the threat of Islamic terrorism. 24. Gendron, “Just War, Just Intelligence,” 414. 25. Godfrey, “Ethics and Intelligence,” 399. 26. A realist approach does not prevent the formation of alliances or coalitions for a mutual goal, however, it also allows for breaking these alliances in the name of national interest, thus not representing a broader definition of the political community.

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27. Rudner, “Hunters and Gatherers,” 195. 28. Erskine, “Rays of Light,” chapter 9, original publication p. 366. 29. Erskine, “Rays of Light,” chapter 9, original publication p. 367. 30. Erskine, “Rays of Light,” chapter 9, original publication p. 370. 31. Gendron, “Just War, Just Intelligence,” 409. 32. Gendron, “Just War, Just Intelligence,” 415. 33. Tony Pfaff, “Bungee Jumping off the Moral Highground: Ethics of Espionage in the Modern Age,” in Ethics of Spying: A Reader for the Intelligence Professional, ed. Jan Goldman (Lanham, MD: Scarecrow Press, 2006), 67. 34. Arthur S. Hulnick and David W. Mattausch, “Ethics and Morality in U.S. Secret Intelligence,” in Ethics of Spying: A Reader for the Intelligence Professional, ed. Jan Goldman (Lanham, MD: Scarecrow Press, 2006), 42. 35. Quinlan, “Just Intelligence,” 6. 36. Quinlan, “Just Intelligence,” 6. 37. Pfaff, “Bungee Jumping,” 79. 38. Pfaff, “Bungee Jumping,” 76. 39. Gendron, “Just War, Just Intelligence,” 417. 40. Gendron, “Just War, Just Intelligence,” 427. 41. John P. Langan, “Moral Damage and the Justification of Intelligence Collection from Human Sources,” in Ethics of Spying: A Reader for the Intelligence Professional, ed. Jan Goldman (Lanham, MD: Scarecrow Press, 2006), 105. 42. Hulnick, “Ethics and Morality,” 44. 43. Pfaff and Tiel, “Ethics of Espionage,” 1. 44. Godfrey, “Ethics and Intelligence,” 399. 45. Erskine, “Rays of Light,” chapter 9, original publication p. 362. 46. Hulnick, “Ethics and Morality,” 48. 47. Langan, “Moral Damage,” 112. 48. Godfrey, “Ethics and Intelligence,” 401. 49. Langan, “Moral Damage,” 105. 50. Gendron, “Just War, Just Intelligence,” 401. 51. Quinlan, “Just Intelligence,” 2.

BIBLIOGRAPHY Erskine, Toni. “As Rays of Light to the Human Soul? Moral Agents and Intelligence Gathering.” In this volume. Originally published in Intelligence and National Security 19, no. 2 (2004). Gendron, Angela. “Just War, Just Intelligence: An Ethical Framework for Foreign Espionage.” International Journal of Intelligence and Counterintelligence 18, no. 3 (2004). Godfrey, E. Drexel, Jr. “Ethics and Intelligence.” In Strategic Intelligence: Windows into a Secret World, edited by Loch K. Johnson and James J. Wirtz. Los Angeles: Roxbury, 2004. Herman, Michael. “Ethics and Intelligence after September 2001.” In this volume. Originally published in Intelligence and National Security 19, no. 2 (2004).

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———. Intelligence Power in Peace and War. New York: Cambridge University Press, 2006. Hitz, Frederick P. “Unleashing the Rogue Elephant: September 11 and Letting the CIA Be the CIA.” In Strategic Intelligence: Windows into a Secret World, edited by Loch K. Johnson and James J. Wirtz. Los Angeles: Roxbury, 2004. Hulnick, Arthur S., and David W. Mattausch. “Ethics and Morality in U.S. Secret Intelligence.” In Ethics of Spying: A Reader for the Intelligence Professional, edited by Jan Goldman. Lanham, MD: Scarecrow Press, 2006. Langan, John P. “Moral Damage and the Justification of Intelligence Collection from Human Sources.” In Ethics of Spying: A Reader for the Intelligence Professional, edited by Jan Goldman. Lanham, MD: Scarecrow Press, 2006. Pfaff, Tony. “Bungee Jumping off the Moral Highground: Ethics of Espionage in the Modern Age.” In Ethics of Spying: A Reader for the Intelligence Professional, edited by Jan Goldman. Lanham, MD: Scarecrow Press, 2006. Pfaff, Tony, and Jeffrey R. Tiel. “The Ethics of Espionage.” Journal of Military Ethics 3, no. 1 (2004). Quinlan, Michael. “Just Intelligence: Prolegomena to an Ethical Theory.” Intelligence and National Security 22, no. 1 (2007). Rudner, Martin. “Hunters and Gatherers: The Intelligence Coalition against Islamic Terrorism.” International Journal of Intelligence and Counterintelligence 17, no. 2 (2004).

5 Beyond the Oxymoron Exploring Ethics through the Intelligence Cycle Hans Born and Aidan Wills

The proliferation of intelligence activities within the context of the fight against international terrorism and the accompanying controversies has prompted renewed interest in role of ethics in the work of intelligence services. While the notion of intelligence ethics was once described as an oxymoron, ethics are increasingly viewed as a valuable concept supporting efforts to improve the accountability, image, professionalism, and control of intelligence services.1 A flurry of recent articles have sought to evaluate the myriad ethical issues that arise in various aspects of the intelligence process, attempting to provide frameworks to guide ethical decision making. However, in spite of these efforts, a comprehensive analysis of the ethical issues that arise in the work of intelligence services has yet to emerge. This chapter shall attempt to address this shortfall by bringing together the existing work on intelligence issues and assessing its coverage of ethical dilemmas throughout the intelligence cycle. It should be noted that this chapter does not aim to promulgate a framework for assessing the ethical correctness of particular intelligence strategies or operations. Instead, it aims to demonstrate the relevance of studying intelligence ethics, explicate the existing approaches to intelligence ethics, explore the ethical issues that emerge at each stage of the intelligence cycle, and outline suggestions for broadening the intelligence ethics research agenda. This chapter will begin by discussing the contemporary relevance of studying intelligence ethics, followed by a brief analysis of the concept of ethics and its relationship with the law. The following section will consider the role of ethics within the intelligence community, highlighting the need to examine ethics at both the individual and institutional levels.2 We shall 34

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then review the existing literature on intelligence ethics and three principal approaches will be assessed. The second part of this chapter will build upon this literature to examine ethical issues that arise throughout the intelligence cycle. Finally, the chapter will conclude by outlining future avenues for research on intelligence ethics.

WHY STUDY INTELLIGENCE ETHICS? The moment is propitious for studying the ethics of intelligence. A combination of the following trends has brought renewed relevance to questions of ethics in intelligence: the shifting nature of the functions of intelligence services; the ever-growing demands for accountability and the respect for human rights in the work of intelligence services; recent controversies arising from the work of Western intelligence agencies; and the concerns expressed by international organizations in the aftermath of these controversies. Each of these trends will now be discussed in more detail. As a number of prominent authors have pointed out, in many states intelligence services have increasingly moved beyond information gathering to fulfill more proactive roles of “hunting,” “fixing,” and “enforcing.”3 This trend has been particularly visible in the work of intelligence services in the fight against international terrorism. It is now well known that a number of these activities have generated high-profile controversies surrounding the rendition, secret detention, mistreatment, and torture of suspected terrorists. These scandals have returned us once more to the enduring dilemma of intelligence in open societies: how intelligence services can help to provide security in democratic societies in a manner that reconciles the needs to work in secret and potentially restrict (or violate) the rights of individuals with the needs to respect human rights and remain democratically accountable. These often paradoxical demands create ethical dilemmas that—due to time pressures, secrecy, and safety concerns—must frequently be resolved by individuals working within intelligence agencies. The choices made by these actors may have far-reaching consequences for the rights of individuals at home or abroad, for national security, and for a state’s international relations. It is in this context that ethics have an important role to play in ensuring this dilemma is resolved in ways that are commensurate with democratic norms and the broad interests of the general public. Academic research has a central role to play in highlighting the ethical dilemmas that may arise and contributing to debate on how they should be resolved. Recent scandals surrounding the work of intelligence services have moved several international organizations to place the role and conduct of intelligence services on the political agenda. Indeed, the concerns of

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institutions such as the Council of Europe (CoE) and the European Parliament (EP) regarding the conduct of intelligence services have led to calls for the adoption of regional ethical regulations or codes of conduct for intelligence services. In 2005 the Parliamentary Assembly of the Council of Europe (PACE) adopted a recommendation that called for the drafting of a European code of intelligence ethics to apply to all CoE member states.4 Furthermore, in 2007 PACE’s rapporteur on the secret detentions and the illegal transfer of detainees, underlined that “[intelligence] agencies need to be subjected to codes of conduct, accompanied by robust and thorough supervision.”5 Also in 2007, the European Parliament adopted a resolution stating that “it is necessary to promote within the UN framework, codes of conduct for all security and military services, based on the respect for human rights, humanitarian law and democratic political control.”6 While there has not yet been any substantive response to these calls, this recent expression of concern by major European bodies further demonstrates the need to study intelligence ethics. Ethics can serve as one of a range of internal control mechanisms that may apply to intelligence services, and it is therefore imperative that we study ethical issues and explore ways in which the ethical standards within the intelligence community can be strengthened. As various scholars on the democratic accountability of intelligence services have argued, internal control within intelligence services is the condition sine qua non for effective democratic control.7 Ethical standards are of particular significance in the activities of intelligence services due to the nature of work they conduct and the veil of secrecy under which much of their work takes place. Furthermore, in even the most transparent democratic systems, it is feared that a proportion of the work of intelligence services falls beyond the reach of both legislation and oversight bodies.8 In light of this axiom, Reginald Jones’s suggestion that “a firm sense of ethics among its operators” is the only real safeguard against wrongdoing in intelligence work, remains valid today.9 In common with many areas of intelligence studies, the study of intelligence ethics is hindered by the opacity of intelligence organizations and activities. The secrecy that surrounds intelligence makes it difficult to acquire a detailed understanding of the specific activities in which intelligence services engage. It is often said that only intelligence failures come out into the open and that we may therefore never have a full picture of day-to-day operations. A further barrier to the study of ethics is the lack of information about ethical standards in intelligence available in the public domain. Official codes of conduct for intelligence officials are seldom made public.10 This makes any comparative analysis of ethical standards extremely difficult and precludes us from evaluating the conduct of intelligence agencies against any specific guidelines.

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THE MEANING OF INTELLIGENCE ETHICS The term ethics has two distinct applications: It can refer to a value-neutral discussion of the contours of a normative framework, and it can also be a value judgment of the rightness or wrongness of given actions according to a particular normative framework.11 The first use of the term is captured in the Oxford Dictionary of English definition of ethics as “moral principles that govern a person’s [or organisation’s] behaviour or the conducting of an activity.” The second application of the concept of ethics is referred to in Roger Crisp’s definition of ethics as aspects of morality “which involve notions such as rightness and wrongness, guilt and shame.”12 In his application of ethics to the field of intelligence, Shlomo Shpiro defines intelligence ethics as “a set of behavioral guidelines based on certain beliefs . . . regarding the role of intelligence in society.”13 These definitions provide a starting point for exploring ethics in the intelligence sphere. In order to provide further background to this discussion, we shall briefly consider the relationship between ethics and the law.

THE RELATIONSHIP BETWEEN INTELLIGENCE ETHICS AND THE LAW Ethics both underpin and complement the law. Laws are drafted according to ethical principles but they are also supplemented by ethical frameworks that serve as a guide for action beyond legal statutes; in this sense ethics both precede and follow law. The actions of intelligence agencies and officials are regulated by both national and international law. However, intelligence officers deal with complex tasks, unforeseen situations, and multifaceted decisions; laws cannot possibly be drafted to regulate every conceivable situation. Shpiro captures the essence of this limitation, suggesting that “intelligence officers often face factual problems and emotional dilemmas. . . . Laws and regulations sometimes provide solutions to factual problems but rarely provide answers to emotional dilemmas.”14 Laws are necessarily general and abstract, leaving considerable leeway for interpretation by those individuals whose actions are regulated by them, as well as those who are responsible for enforcing laws. Working in this “space beyond the law,” intelligence officials must exercise discretion that “defines that area of choice which is permitted explicitly by law or which exists by way of the ambiguity inherent in the law.”15 As Patrick Dobel suggests, the exercise of discretion differs from following rules because it flows from the “latitude” that is inherent within a particular decisionmaking framework.16 It is within this realm of legal ambiguity that ethics become a crucial guide to action, informing discretionary judgment. For

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this reason, laws are necessary but not sufficient for the comprehensive regulation of conduct in the intelligence community. Ethics differ from the law in several important ways. While laws are always formal, ethics may be either codified or informal, undocumented principles. Whereas laws are normally interpreted and enforced through the judicial system of a state, compliance with and interpretation of ethics is left to the professional group or organization itself. The interpretation of formal or informal organizational ethical standards is likely to be left to the individual. In this respect, the utility of internally enforced codes of ethics in intelligence agencies may be questioned, particularly given the likely hostility of intelligence officials to rigid ethical codes. However, it is worth considering that intelligence oversight bodies could become involved in evaluating the adherence of intelligence services and officials to professional codes of ethics (where they exist).

ETHICS AND THE INTELLIGENCE COMMUNITY It has been claimed that intelligence and ethics are fundamentally incompatible and represent that the notion of intelligence ethics is oxymoronic.17 If we accept the claims of one author that spies “lie, cheat, steal, deceive, manipulate and sometimes do much worse in the course of their work,”18 we may indeed question whether intelligence and ethics can ever be compatible. Often cited examples of former intelligence officials’ views on ethics illustrate an underlying skepticism about the application of ethics in the field of intelligence. One former British official described himself as not having been “conscious of any ethical problems” and having viewed ethics as “obstacles which the system puts in our way, as if to turn hundred yard sprints into longer hurdle races.”19 Another former official has been quoted as stating that ethics should be “left to the clerics.”20 These quotes reflect the view that ethical considerations may encumber intelligence agencies with additional rules of conduct that may inhibit effective intelligence operations and could put national security at risk. In spite of this skepticism, other former intelligence practitioners have asserted the importance of ethics in intelligence. In a widely quoted statement, former CIA director Admiral Stansfield Turner demonstrated a clear concern for ethical considerations; he proclaimed that “there is one overall test of the ethics of intelligence activities; that is whether those approving them feel they could defend their actions before public if the actions became public.”21 In addition, recent work by former intelligence officials has supported the view that ethics have an important role to play in the intelligence community.

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TWO LEVELS OF ETHICAL RESPONSIBILITY In examining ethics in intelligence community we should focus not only on the views and conduct of individual intelligence officials, but also on intelligence agencies as institutions. As Toni Erskine suggests, these institutions are “moral agents” because they have the capacity for moral deliberation and moral action.22 At the institutional level, intelligence services are responsible for the ethical approach of the organization as a whole and they have an obligation to delineate the ethical parameters within which their staff should operate.23 It may also be added that services have ethical obligations toward their staff with regard to the conditions under which they work and the tasks they are required to undertake. However, the existence of institutional ethical considerations and responsibilities does not exculpate intelligence officials of their own responsibility. They too must take account of ethical considerations when carrying out their work and may arguably have an obligation to refuse to undertake (or report) activities they regard as unethical. This may lead to a conflict between individual and institutional ethics. While an analysis of this tension is beyond the scope of this essay, it is noteworthy that due to the secrecy surrounding intelligence work, the reporting of illegal or unethical activities within an intelligence service remains highly controversial, and designated “whistle-blower” mechanisms vary considerably between states. Two specific problems arise with regard to institutional ethics and responsibility. The first problem relates to the “fragmentation of responsibility” that can occur in large bureaucracies such as intelligence services, where staff function within a hierarchy in which work is subdivided into compartmentalized areas of responsibility.24 In the intelligence services, this compartmentalization of work is further reinforced by secrecy and by the fact that information sharing occurs on a strictly “need to know” basis. As a result of this compartmentalization of work, it may be difficult to establish responsibility for specific sequences of work (in which a number of individuals or groups are involved); this may mean that there is reduced accountability for the ethicality of operations and little awareness of the actions that have taken place in different phases of an operation. This problem is connected to the issue of “plausible deniability.” Plausible deniability is a doctrine developed in the 1950s that involves the creation of power structures and linkages that are loose and informal enough to be denied if necessary. Thus, ministers may issue instructions to their intelligence services with the knowledge that executive involvement can later be denied should an operation fail or be exposed.25

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EXISTING LITERATURE ON INTELLIGENCE ETHICS Until recently there was very little consideration of ethical issues in the academic literature on intelligence. In the late 1970s and 1980s several articles addressed the ethical dilemmas of covert action; however, it was not until the middle of the current decade that authors began to expand this focus to other areas of intelligence.26 The exponential increase of intelligence activities since the events of September 2001, as well as the much discussed controversies surrounding the role of intelligence in the so-called war on terror, has spawned a steadily growing body of literature that addresses intelligence ethics. Numerous articles have appeared in intelligence and international relations journals and several books have dealt specifically with ethics and intelligence.27 In this literature, authors have elaborated normative ethical frameworks to serve as benchmarks in the work of the intelligence community as well as to assess the ethicality of given actions. There are three discernable approaches to intelligence ethics in the existing literature: the realist, the consequentialist, and the deontological approaches. Each will now be discussed in turn.28 According to the realist approach, national security is an end in itself that justifies all means, and therefore intelligence officials may potentially pursue any course of action in the defense of national security. To fail to engage in intelligence gathering would be to negate a moral duty lying at the core of a government’s responsibility to its citizens; without timely information as to a potential enemy’s capability and intentions, no effective defense is possible.29 Hence, intelligence officials do not necessarily act immorally when they lie, cheat, blackmail, bug, or burgle. On the contrary, from this realist position, intelligence agents would be acting immorally if they neglected to deploy all means at their disposal for the sake of national security. The consequentialist approach to ethics “assesses the rightness (or wrongfulness) of actions in terms of the value of their consequences,” and thus ends and means have to be balanced when deciding whether or not a given course of action is ethical.30 A prominent example of this approach applied to intelligence is Michael Herman’s “ethical balance sheet,” which requires the weighing of the likely effects of intelligence collection (positive and negative).31 According to Herman, this assessment may legitimately lead to the justification of “almost any methods of [intelligence] collection . . . short of gross violations of human rights.”32 Adopting this position, no activities are intrinsically wrong, but ethicality of a given course of action should be assessed according to likely consequences. It is a matter of debate as to the level at which consequences should be assessed; for Herman this evaluation should be made at the macro level in terms of a state’s international relations.33 However, consequences for individuals or groups may also be adopted as levels of ethical assessment.

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A variation on the consequentialist approach is the just-intelligence theory, which is based on just-war theory and has been proffered by Angela Gendron, David Omand, and Michael Quinlan, among others.34 The justintelligence theory recommends an ethical assessment in both the selection of targets for intelligence and the choice of methods for gathering information from those targets.35 Just-intelligence theorists argue that in making these judgments the following must be considered: whether the action is a last resort, whether there is just cause, the prospects for success, whether the means deployed are proportional to the ends sought, the possibility of damage to innocent people, and the need for oversight of the actions.36 It should be noted that these authors do not believe that all courses of action are justifiable following this assessment; as in war, there are absolute prohibitions. Erskine considers just-intelligence theory to be a fourth approach; however, this is a false distinction because, in common with other consequentialist approaches, just-intelligence theory requires the balancing of ends and means. Nevertheless, Erskine is correct in highlighting the “disanalogy between intelligence collection and war,” which is a major drawback of the just-intelligence theory. Given that just-intelligence theory has emerged within the context of the war on terror, it is likely that it has been heavily influenced by the role of intelligence services in supporting military operations and their direct involvement in interrogating so-called enemy combatants both within war zones and elsewhere. However, this approach is based upon a narrow interpretation of the work of intelligence services and fails to consider the many other realms within which intelligence services operate. Indeed, the extension of the logic of war into peacetime intelligence processes is potentially dangerous as it may serve to justify the disregard of ethical considerations. The third approach is the deontological approach, which contends that some activities are intrinsically wrong and can never be justified, “they [the activities] are not mere negatives that enter into a calculus to be outweighed by the good you might do or the greater harm you might avoid.”37 For a deontologist it is the act itself that is wrong, regardless of its consequences. Central to this view is Immanuel Kant’s “categorical imperative,” which dictates that acts of individuals should be considered acceptable only if they could be justified when universally applied.38 From this point of view, humans should never be treated as a means to an end, but must always be considered as ends in themselves.39 While these notions have salience at a philosophical level, the drawback to this approach is that it does not provide any criteria for delineating which types of acts are inherently wrong in practice. In making this assessment, deontologists may appeal to individuals’ moral intuition or religious doctrine; however, as Nancy Davies points out, these parameters do not provide an adequate litmus test.40

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Having discussed the three principal approaches to intelligence ethics in the existing literature, we shall now analyze several other aspects of this work. Given the environment in which much of the literature on intelligence ethics has emerged, it is not surprising that much of the work focuses on the ethical dilemmas that have emerged during the war on terror. Consequently, authors have been preoccupied with the role of intelligence in counterterrorism operations and the ethical challenges that have arisen during this work. In this context, the ethical issues posed by interrogation techniques, and in particular torture, have generated particular scholarly interest. However, this preoccupation with the collection methods used by the United States and a number of its allies during the war on terror has been to the detriment of a broader consideration of ethics in the work of the intelligence services. Furthermore, authors on intelligence ethics have given limited consideration of the ethical issues involved in intelligence collection in areas other than counterterrorism, such as tackling organized crime, countertrafficking, and economic espionage. Moreover, limited attention has been paid to the ethical issues that arise in other parts of the intelligence cycle, including planning, analysis, and dissemination. An additional weakness of the existing corpus of literature has been the focus on the ethics of foreign intelligence operations at the expense of domestic intelligence. This neglect of ethical issues arising within domestic intelligence work has occurred in spite of the profound changes in the volume of domestic intelligence, the powers of domestic intelligence services, and a string of high-profile controversies.41 Overall, the existing literature provides valuable normative frameworks through which we can examine intelligence ethics. However, this corpus of work fails to examine ethical concerns across the range of activities in which intelligence agencies engage. In the second half of this chapter we aim to build upon the existing literature by extending an examination of intelligence ethics to the complete intelligence cycle.

COMPLETING THE CYCLE: EXPLORING ETHICS THROUGH THE INTELLIGENCE CYCLE The “intelligence cycle” model was originally formulated by the Central Intelligence Agency and is a frequently used reference point in intelligence studies and by other intelligence services.42 In its original formulation, the cycle describes the intelligence process in six stages: planning and direction, collection, processing, analysis and production, dissemination, and new requirements.43 It is noteworthy that the intelligence cycle has attracted considerable criticism. Arthur Hulnick has criticized the cycle for failing to

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capture the complexities of a dynamic process and for excluding covert action and counterintelligence operations;44 it should be added that the cycle cannot take account of the fact that intelligence is not a linear or monodirectional process, and various stages of the cycle may at times overlap. In spite of its shortcomings, the cycle provides a useful framework through which to analyze aspects of the intelligence process. In this chapter a modified version of the intelligence cycle is adopted as a framework through which to analyze intelligence ethics. For each stage of the cycle the principal intelligence processes and activities involved will be outlined; this will be followed by an analysis of a number of the ethical challenges that arise at each stage in the cycle. It is important to note that in identifying these ethical issues, we are not attempting to assess or compare the gravity of the various ethical quandaries that emerge in various aspects of intelligence work. Planning and Direction Planning and direction is both the beginning and the final stage in the intelligence cycle. It includes decisions made by the executive as well as by the senior leadership of intelligence services in areas such as strategic-level planning and prioritization, operational planning and mission approvals, targeting policies, and recruitment policies. Decisions taken at this stage not only define the parameters for the proceeding stages of the intelligence cycle but are also influenced by the preceding stages of the cycle; indeed, the collection, analysis, and dissemination phases demonstrate areas in which further intelligence is required or increased resources are needed. A plethora of ethical issues arise at the institutional level when intelligence agencies formulate internal policies, respond to the intelligence requirements of government, and plan future intelligence collection strategies. As was discussed above, intelligence agencies and governments should also be viewed as “moral agents” that exercise collective moral agency.45 In considering the ethical issues involved at this stage in the cycle, we shall consider (a) the role of government in setting priorities for the services, (b) legitimate functions or tasks that justify the involvement of intelligence services; and (c) the recruitment of agents to carry out designated tasks. (a) Governments set priorities for the intelligence services, and in most states the minister(s) responsible for intelligence matters must approve operations before they can take place. In making these decisions, governments must take account of the overarching ethical obligation to protect national security and ensure the safety of their citizens. As Tony Pfaff and Jeffrey Tiel point out, “to fail to engage in intelligence gathering would be to shirk a moral duty lying at the core of a government’s responsibility.”46 Nevertheless, in directing their intelligence agencies to defend national

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security, governments are faced with several significant ethical considerations. First, governments are ultimately responsible for the conduct of the agencies they control, and since these agencies act in the name of the state (and the general public), governments have a moral obligation to ensure that intelligence services take account of ethical considerations.47 Second, governments have a duty not to place undue pressure on their intelligence agencies to obtain intelligence at all costs, as this may drive agencies to subjugate ethical considerations and/or violate laws. Finally, when directing intelligence services governments should consider the ethical implications of dictating desired intelligence outcomes before the intelligence cycle has run its course, that is, stipulating which truths will be told to power. (b) Intelligence agencies have to make decisions as to where to focus their resources and thus which groups or individuals to target for collecting information. Adopting a just-war analogy, Quinlan describes this targeting phase as jus ad intelligentium, arguing that the decision to collect information should be dependent upon the likely significance of the information a “target” possesses.48 He asserts that the type of interest threatened should also be taken into account when determining appropriate targets of collection.49 For Quinlan, the interests that are likely to be served by intelligence collection should also be taken into account; for example, national security interests may justify collection, whereas the promotion of national economic interests would not.50 Pfaff and Tiel also place an emphasis on the legitimacy of targeting, arguing that whether or not it is ethical to target a particular individual for collecting evidence depends upon the position of the individual concerned. They formulate a typology based on the level of involvement of individuals in the “game” of intelligence. Their categories range from “innocent” citizens who do not possess any useful information to those who knowingly possess valuable information for agents of foreign intelligence services.51 Hence, intelligence services should use the least aggressive methods of collection if the target is an “innocent” citizen who possesses valuable information, whereas the use of the most aggressive intelligence-gathering activities is permitted if the target is an agent of a foreign intelligence service.52 (c) Planning and direction also encompasses recruitment and training processes, to which a number of ethical considerations may apply. First, agencies can promote high ethical standards by emphasizing the significance of ethical standards within the recruitment process. Drexel Godfrey recommends that an ethics test should be built into the recruitment process of agencies, he suggests that this would include situational problem solving and would also test to determine the readiness of recruits to resort to violence.53 In a similar vein, Stephen Marrin and Jonathan Clemente exclaim the need for an ethical licensing or certification process within the intelligence community, similar to the procedures used in other professions such as medicine.54

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Collection Collection is the foundation of intelligence. Through diverse methods, information is collected that feeds the rest of the intelligence cycle. Collection activities are grouped into several overarching categories: imagery intelligence (IMINT), signals intelligence (SIGNINT), human intelligence (HUMINT), and open source intelligence (OSINT).55 In the collection of intelligence, individual intelligence officers are faced with decisions that must balance a multiplicity of competing factors and may often need to be made quickly and without consultation. Case officers may have a more complete understanding than headquarters of the context in which decisions about the collection of information are made and may therefore be better placed to make ethical assessments. Indeed, there may even be instances in which officers have an ethical obligation to ignore the directions of headquarters when they believe the risks to human sources are unacceptably high. In making these calculations, the ethics of the individual concerned as well as the organizational ethics of an intelligence agency play a significant role in informing decisions that are made at the discretion of the agent. Recurrent themes in the literature on the ethics of intelligence collection are (a) the use of aggressive interrogation techniques and torture, (b) the ethical issues arising from the collection of HUMINT through informers and the participation of agents in the activities of targets, and (c) the ethical implications of intrusions of privacy associated with IMINT and SIGINT collection. (a) The vast majority of the literature on intelligence ethics focuses on the ethical dilemmas raised during the collection of intelligence. Recently, particular attention has been paid to the issue of interrogation techniques and the question as to whether torture can ever be justified in attempts to collect potentially crucial information. In the current context of the war on terror, interrogation has become the most frequently discussed form of human intelligence collection. Myriad articles have dealt with the ethical dilemmas posed by the use of torture or “enhanced interrogation techniques” in the fight against terrorism.56 While a full assessment of this debate is beyond the scope of this chapter, it is worth briefly considering the most prominent arguments that have shaped this debate on the ethics of torture.57 The majority of authors reviewed argue in favour of an absolute rejection of torture. Quinlan and Omand reject torture under any circumstances, citing the prohibition of torture as an absolute moral principle.58 According to both Alex Danchev and Alex Bellamy, torture should not be used because it not only violates fundamental human rights but also undermines both the honor and the agenda of those who practice it.59 Quinlan and Bellamy both refer to the “slippery slope” or “slippage” argument, whereby

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the exceptional use of torture risks normalizing the practice.60 By contrast, Alan Dershowitz has strongly advocated the legalization of torture under a stringent licensing procedure. Adopting an overtly utilitarian argument, Dershowitz asserts that torturing individuals when they are known to hold information that could save lives is ethically justifiable (this has been dubbed the “ticking bomb” argument).61 Similar sentiments are echoed by Michael Herman, who suggests that torture may be acceptable in exceptional circumstances if the expected gains significantly outweigh the harm that will occur.62 (b) Intelligence services rely on the use of informers in both foreign and domestic intelligence collection. In order to obtain this information, intelligence agencies have to cultivate relationships with individuals and groups that may be involved in illegal activities. Intelligence agents may have to put themselves at significant personal risk in order to develop sources or to personally access information. A number of pertinent ethical issues arise during the collection of this form of HUMINT; these include the obligations intelligence agencies owe to their own members of staff, the obligations of the intelligence services toward their sources, and the conduct of intelligence officers when recruiting and using forces or obtaining information themselves. As Mark Lowenthal and Peter Gill both point out, intelligence officers may themselves have to engage in illegal and unethical activities in order to penetrate criminal groups.63 Significant ethical problems arise when agents acting in the name of state knowingly engage in illegal activities in order to gain access to information. Moreover, if intelligence agencies opt to use informers in order to collect information, they assume a number of ethical obligations vis-à-vis the individuals concerned. Indeed, it is widely held that intelligence services have an ethical obligation to protect human sources; this usually entails ensuring that a source’s identity remains secret, as well as the provision of necessary physical protection to sources and their families.64 Ethical dilemmas arise not only in relation to the engagement in illegal activities and the potential risks to sources but also with regard to the safety of intelligence officers themselves. HUMINT collection inevitably places intelligence officers in a position of some risk; however, intelligence agencies have an ethical obligation to consider the risks to their members of staff. In this context, Omand argues that any risks to agents must be proportionate to the benefits that are likely to be provided by obtaining the information sought.65 (c) While the collection of HUMINT may create the most dramatic ethical dilemmas, the collection of signals intelligence and imagery intelligence also poses pertinent ethical challenges. Both of these forms of technological intelligence can have significant implications for the privacy of individu-

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als and groups. With this in mind, the notion of “minimum trespass” has been put forward. According to Michael Andregg, this concept describes the view that intelligence services should interfere in individuals’ private lives as little as possible when performing their functions. However, he points out this concept is highly subjective and does not provide a useful guide for action.66 Rapid technological progress means that the fields of IMINT and SIGINT are highly dynamic; this presents a major challenge for the regulation of these methods of intelligence collection because regulations cannot keep up with technological advances. More research needs to be done to examine how technological progress in collection methods has shifted the ethical boundaries associated with collection. Analysis and Production At this stage of the intelligence cycle the data and information collected are processed to generate the intelligence product. Analysis is “the process of transforming the bits and pieces of information that are collected . . . into something that is usable by policy-makers.”67 This process involves sorting, correlating, storing, and most importantly analyzing the information in order to assess the significance of findings. Depending on the type of intelligence collected, there are usually several phases of analysis before a final intelligence product is produced and disseminated.68 Human analysts are responsible for identifying threats from the intelligence collected, and it is also their prerogative to assess whether or not the information that has been gathered is accurate and can be corroborated by other intelligence. The outcome of analysis is some form of intelligence product, which may take the form of formal written reports, verbal briefings, or concise memoranda.69 The output of intelligence analysis may have profound impacts upon government policy, the use of public money, the deployment of security services and armed forces, and potentially the drafting of new legislation. There are therefore significant ethical challenges associated with the analysis and production of intelligence. While it should be acknowledged that intelligence services and their analysts may work under considerable time constraints and political pressures, several ethical obligations are incumbent upon them when formulating their analyses, including (a) avoiding the deliberate politicization of intelligence and (b) refraining from attaching greater weight to the intelligence that is collected than can be reasonably justified. (a) The politicization of the intelligence product may occur as a result of either an analyst’s own political disposition or the desire of analysts to cater to the perceived position of the intelligence customer and thus, gain influence at the governmental level. Andregg is highly critical of this practice

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and suggests that objectivity is a fundamental ethical requirement of intelligence analysis.70 Given the potential ramifications of the output of intelligence analysis, it is important that information is represented neutrally and not manipulated to cater to any particular political position. (b) According to Quinlan, “a special moral responsibility lies upon intelligence authorities . . . not to claim wider knowledge or greater certainty [in their analyses] than is genuinely warranted.”71 Intelligence services have an ethical obligation to attach necessary precautions (such as error estimates) to the conclusions of their analyses. This is important, as it may help ensure that the intelligence product is used cautiously by governments in formulating policy. This issue was raised by the Butler Inquiry in the UK, which criticized the British Joint Intelligence Committee for failing to make clear the limitations of its analyses regarding Iraqi weapons of mass destruction.72 Dissemination The dissemination of intelligence encompasses the communication of intelligence findings to government, the sharing of intelligence with foreign governments and intelligence agencies, and the sharing of intelligence with other domestic agencies and government departments. Intelligence services disseminate information not only to their own government but also to other domestic security services and those of other states. This process of exchange is generally regulated by law. The information provided by intelligence services may have significant influence upon government policies, the actions of the security services, and the conduct of foreign services. There is an array of ethical issues associated with this dissemination of information, but these have been surprisingly underexplored in the existing literature. Four pertinent ethical issues related to dissemination of intelligence will be discussed: (a) the issue of telling truth to power, (b) international intelligence sharing, (c) domestic intelligence sharing, and (d) unauthorized dissemination of intelligence. (a) The primary consumer of the information provided by intelligence services is the government; indeed, a fundamental purpose of intelligence is “telling truth to power.”73 Intelligence services furnish governments with information that is then used to inform policy decisions; thus it is important that the intelligence provided is as accurate as possible. According to Omand, the one norm that should apply to all intelligence work is integrity in the presentation of results to intelligence customers.74 This view is supported by Lowenthal, who argues that if telling truth to power is the goal of intelligence, there can be no room for compromise.75 Thus, intelligence that is provided to government should not be manipulated or exaggerated to fit any particular institutional or political interests.76 While intelligence services have an ethical obligation not to manipulate or embellish intel-

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ligence, they also have a moral duty to inform policy makers of potential threats they discover. (b) While it is not a new phenomenon, international intelligence sharing has increased exponentially with the proliferation of globalized threats, and in particular international terrorism. Given the transnational nature of terrorist and organized crime networks, there is a need for intelligence services to share information and thereby take advantage of the comparative advantages enjoyed by national services in collecting information on particular groups and in specific geographical areas. While this cooperation is a valuable tool in combating transnational threats, the sharing of intelligence with foreign agencies that may not uphold the same legal and ethical standards is problematic.77 If intelligence services choose to share information with foreign services, they may be legally responsible for actions taken by the recipient state on the basis of the shared information. As Omand suggests, intelligence agencies have ethical obligations not to share intelligence with foreign intelligence services that do not observe the same standards as their own agency.78 An additional set of ethical considerations arises within the context of incoming information. There are potential ethical obligations owed to foreign intelligence services that provide information. Intelligence services are implicitly bound by the “third party rule,” which dictates that services will not pass on information received from a foreign intelligence service without the permission of that service. Similarly, there are ethical considerations pertaining to the adherence to caveats (conditions imposed upon the use of exported intelligence) imposed by the sending service. Finally, as has recently been illustrated by two inquiries in Canada, there are serious ethical (and legal) issues regarding the sending of intelligence to states that may use this information in a manner that is injurious to individuals or groups.79 (c) Intelligence agencies also share information with other internal agencies and government departments, such as the police, military, immigration, and customs services. Several ethical issues arise from this internal transfer of intelligence that are worthy of mention. First, information collected on individuals or groups that was obtained for a specific purpose by intelligence agencies may then be used by other government agencies or departments for purposes other than those for which it was collected, to the possible detriment of the individuals concerned. The individual(s) may not be aware that the information was collected or that this data was subsequently transferred. Second, the individuals concerned are unlikely to have had any opportunity to contest the veracity of this information before it is utilized by other government agencies.80 A prominent example of this is the denial of visa or asylum applications on the basis of information provided by intelligence services; the individuals are unlikely to have an

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opportunity to contest such information.81 Finally, there is a risk that the threat to transfer information to other services may be used by intelligence services to blackmail targets into providing information.82 (d) While the majority of intelligence dissemination is authorized, the unauthorized dissemination of information by intelligence officials has occurred for as long as intelligence agencies have existed. The unsanctioned leaking of information is generally illegal and clearly not part of the intelligence cycle; it may consist of the provision of secret information to foreign officials, domestic targets, or the media. Some unauthorized transfer of information is fundamentally unethical, as is the case with double agents who pass on state secrets to a foreign service.83 This work is usually undertaken for personal financial gain or political reasons and may pose a danger to both national security and the intelligence agents whose work is uncovered. The second category of unauthorized dissemination of information is that of whistle-blowing, whereby intelligence officials leak secret information to the press. The motivations for this practice vary, but it is noteworthy that whistle-blowers may leak information in order to expose wrongdoings within their service.84 This presents a major ethical dilemma, as on the one hand officials have an obligation to keep information secret that could compromise agents or operations, but on the other hand, intelligence officials may be seen have an ethical duty to report serious malpractice within their agency.85 With this in mind, some states, such as Canada, and Bosnia and Herzegovina, have mechanisms in place for reporting illegal actions while protecting the whistle-blower.86

CONCLUSION This chapter began by highlighting the renewed relevance of studying intelligence ethics, most notably the changing nature of the work of intelligence services, the ever-growing demands for accountability and the respect for human rights in the work of intelligence services, as well as the recent scandals resulting from the work of some Western intelligence agencies. This was followed by a review of the existing literature on intelligence ethics that illustrated the three principal approaches to intelligence ethics: the realist, consequentialist, and deontological approaches. The second part of the chapter built upon this literature by providing an assessment of the main ethical issues at each stage of the intelligence cycle. This analysis showed that there are diffuse ethical challenges throughout the intelligence process and that both intelligence agencies and individual agents are confronted with major ethical dilemmas in many areas of their work. It is apparent that

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previous studies have largely focused upon the collection of human intelligence and there has been an inadequate attention paid to other phases of the intelligence cycle (planning and direction, analysis and production, and dissemination). Further research must be done in order for us to better understand the ethical quandaries involved at these stages of the cycle, and on this basis to develop a normative ethical framework to guide actions throughout the intelligence cycle. In addition, future scholarly work on intelligence ethics should extend beyond the stages of the intelligence cycle discussed in this chapter to address the ethical issues that arise in the use of intelligence. The need to consider the ethics of intelligence usage is particularly pressing in light of the controversies surrounding the political manipulation of intelligence in the run-up to the invasion of Iraq.87 Further research should include a comprehensive evaluation of the use of intelligence as an instrument of policy execution by both governments and intelligence services themselves. This would encompass a full investigation of the ethical challenges that arise from counterintelligence and covert action operations. Finally, given the exponential increase in the use of private security companies, additional work on intelligence ethics should consider the ethical challenges presented by the collection and use of intelligence by these entities, as well as the cooperation of state intelligence services with these enterprises. Ongoing debate about the place of ethics in intelligence and the normative ethical frameworks that should guide actions is essential for further developing awareness about the role of ethics in the intelligence community. In continuing this discourse it is imperative that discussions venture beyond the confines of human intelligence to address ethical quandaries that arise at all stages of the intelligence cycle and beyond.

NOTES 1. Duane Claridge, quoted in Michael Quinlan, “Just Intelligence: Prolegomena to an Ethical Theory,” Centre for Intelligence and International Security Studies Annual Lecture, 2005. Intelligence and National Security 22, no. 1, February 2007. 2. Intelligence and National Security 22, no. 1 (February 2007): 1. 3. Richard Aldrich, “International Intelligence Cooperation in Practice,” in Intelligence Cooperation in an Era of Accountability and Human Rights, eds. Hans Born, Ian Leigh, and Aidan Wills (London: Routledge, forthcoming); Martin Rudner, “Hunters and Gatherers: The Intelligence Coalition against Islamic Terrorism,” International Journal of Intelligence and Counterintelligence 17 (2004): 193–230. 4. Parliamentary Assembly of the Council of Europe, Democratic Oversight of the Security Sector in Member States, Recommendation 1713 (Strasbourg, 23 June 2005).

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5. Parliamentary Assembly of the Council of Europe, Committee on Legal Affairs, Secret Detentions and Illegal Transfers of Detainees by Council of Europe Member States: Second Report, Doc. 11302 rev. (Strasbourg, 11 June 2007), http://assembly.coe.int/ Documents/WorkingDocs/Doc07/edoc11302.pdf (accessed 4 Septmber 2007). 6. European Parliament, Resolution on the Alleged Use of European Countries by the CIA for the Transportation and Illegal Detention of Prisoners (2006/2200), http://www .europarl.europa.eu/comparl/tempcom/tdip/final_ep_resolution_en.pdf (accessed 4 September 2007). 7. See, for example, Iain Cameron “Beyond the Nation State: The Influence of the European Court of Human Rights on Intelligence Accountability,” in Who’s Watching the Spies? Establishing Intelligence Service Accountability, ed. Hans Born, Loch Johnson, and Ian Leigh (Washington, DC: Potomac, 2005). 8. Shami Chakrabarti, interview on BBC Radio 4, Current Affairs, 19 April 2007. Transcript available at http://news.bbc.co.uk/2/hi/programmes/analysis/6568019 .stm (accessed 24 August 2007). 9. Reginald V. Jones, Reflections on Intelligence (London: Heinemann, 1989), 35. 10. Two notable exceptions from the past are the South African Code of Conduct for Intelligence Employees, Republic of South Africa, White Paper on Intelligence, Annex A (Pretoria, October 1994); and the 1982 Code of Conduct of Central Intelligence Agency (USA), http://ethics.iit.edu/codes/coe/us.gov.cia.conduct.html (accessed 3 September 2007). It was not possible to determine whether these—or updated versions thereof—remain applicable today. It should be noted that whether or not codes of ethics for intelligence services should be public is a contested point. For authors such as Michael Quinlan, it would be undesirable for codes of ethics relating to all areas of intelligence activities to be made public as this could compromise the secrecy of methods used in the intelligence process. Quinlan, “Just Intelligence,” 12. 11. Oxford Dictionary of English (Oxford: Oxford University Press, 2006), 595. 12. Roger Crisp, “Ethics,” in The Shorter Routledge Encyclopedia of Philisophy, ed. Edward Craig (London: Routledge, 2005), 242–43. 13. Shlomo Shpiro, “Speak No Evil: Intelligence Ethics in Israel,” in this volume, chapter 6; originally published in Defence Intelligence Journal 16, no. 1 (2007). 14. Ibid. 15. Peter Gill, “Security Intelligence and Human Rights: Illuminating the Heart of Darkness” (paper presented at the ESRC Seminar Series: The New Economy of Security: Policy-Military Security Interfaces, King’s College London, 4 May 2007), 12–13. 16. J. Patrick Dobel, “Public Management as Ethics,” in The Oxford Handbook of Public Management, ed. Ewan Ferlie, Laurence Flynn Jr., and Christopher Pollitt (Oxford: Oxford University Press, 2005), 160. 17. Claridge, quoted in Quinlan, 1. 18. Michael Andregg, “Intelligence Ethics,” in Strategic Intelligence, vol. 2, ed. Loch Johnson (Westport, CT: Praeger Security International, 2007), 52. 19. Michael Herman, “Recollections of a Cold War Warrior” (paper presented at the Conference on Intelligence Ethics, Nuffield, 16 October 2006), 1. 20. Quinlan, 1.

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21. Admiral Stansfield Turner, quoted in Quinlan, 1. It should also be noted that former officials who have admitted past reservations about ethics in intelligence have come to perceive the need for intelligence ethics; see Michael Herman, “Ethics and Intelligence after September 2001,” in this volume, chapter 8; originally published in Intelligence and National Security 19, no. 2 (Summer 2004): 342–58. 22. Toni Erskine, “‘As Rays of Light to the Human Soul’? Moral Agents and Intelligence Gathering,” in this volume, chapter 9; originally published in Intelligence and National Security 19, no. 2 (Summer 2004), 363. For an in-depth discussion of individual and institutional moral agency see Toni Erskine, “Assigning Responsibilities to Institutional Moral Agents: The Case of States and Quasi-States,” Ethics and International Affairs 14, no. 2 (2001): 69–72. 23. Erskine, “Assigning Responsibilities,” 69–72. 24. Ibid., 69–72. 25. In the context of intelligence, a prominent example of plausible deniability is the now infamous Rainbow Warrior affair, whereby the French president ordered— but always publicly denied—French foreign intelligence to destroy a Greenpeace ship, resulting in the loss of life. John Dyson, Sink the Rainbow Warrior! An Enquiry into the Greenpeace Affair (London: Victor Gollancz, 1986), 95. 26. Prominent examples of literature that addresses the ethical issues associated with covert action include Charles Beitz’s “Covert Intervention as a Moral Problem,” Ethics and International Affairs 3 (1989); William Colby’s “Public Policy, Secret Action,” in the same issue; and Gregory Treverton’s “Covert Action and Open Society,” Foreign Affairs 65 (Summer 1987). 27. See, for example, Jan Goldman, ed., Ethics of Spying: A Reader for the Intelligence Professional (Lanham, MD: Scarecrow Press, 2005); and James M. Olson, Fair Play: The Moral Dilemmas of Spying (Washington, DC: Potomac, 2006). In addition, the International Intelligence Ethics Association recently launched the International Journal of Intelligence Ethics focusing exclusively on the issue; see http://www .intelligence-ethics.org. 28. This structure is taken from Erksine’s cogent analysis of approaches to intelligence ethics, “As Rays of Light,” chapter 9, original publication pp. 364–74. 29. Tony Pfaff and Jeffrey Tiel, “The Ethics of Espionage,” Journal of Military Ethics 3, no. 1 (2004): 4. 30. David McNaughton, “Consequentialism,” in The Shorter Routledge Encyclopedia of Philosophy, ed. Edward Craig (London: Routledge, 2005), 143. 31. Michael Herman, “Ethics and Intelligence,” chapter 8, original publication pp. 344–46. 32. Ibid., 346. 33. Michael Herman, “Modern Intelligence Services: Have They a Place in Ethical Foreign Policies?” in Agents for Change, ed. Harold Shukman (Little, Brown: 2000), 287–311. 34. Angela Gendron, “Just War, Just Intelligence: An Ethical Framework for Foreign Espionage,” International Journal of Intelligence 18, no. 3 (2005); David Omand, “Ethical Guidelines in Using Secret Intelligence,” Cambridge Review of International Affairs 19, no. 4 (December 2006); Quinlan, 6–7. 35. Quinlan, 6–7.

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36. Omand, “Ethical Guidelines,” 618–19; Gendron, “Just War,” 417–18. 37. Charles Fried, cited in Nancy Davies, “Contemporary Deontology,” in A Companion to Ethics, ed. Peter Singer (London: Blackwell, 1993), 205. 38. Cited in Olson, Fair Play, 24–25. 39. Quoted in Ernan McMullin, “Kantian Ethics,” in The Shorter Routledge Encyclopaedia of Philosophy, ed. Edward Craig (London: Routledge, 2005), 508. 40. Davies, “Contemporary Deontology,” 212. 41. Recent changes in domestic intelligence include a significant expansion in both the powers and resources of intelligence services, and a blurring of the boundaries between law enforcement and intelligence collection. There have been a number of controversies arising from the work of the intelligence services, such as the case of Maher Arar in Canada. See Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, Report of the Events Relating to Maher Arar: Factual Background, vol. 1 (Ottawa: Public Works and Government Services Canada, 2006). Regarding the case of Osama Hassan in Italy, see “Italians Arrested over CIA Kidnap,” BBC News, 5 July 2006, http://news.bbc.co.uk/2/hi/europe/5149464.stm (accessed 28 August 2007). 42. Central Intelligence Agency, Factbook on Intelligence (Washington, DC: CIA Office of Public Affairs, April 1983), 17; see, for example, the Canadian Security Intelligence Service’s use of the intelligence cycle, http://www.csis-scrs.gc.ca/en/ about_us/cycle.asp (accessed 10 April 2009). 43. Ibid. (Factbook on Intelligence). 44. It is beyond the scope of this paper to make a full assessment of the relative merits of the intelligence cycle; for a critical evaluation of the concept, please refer to Arthur S. Hulnick, “What’s Wrong with the Intelligence Cycle?” in Strategic Intelligence, vol. 2, ed. Loch Johnson (Westport, CT: Praeger Security International, 2007), 1–21. 45. Erskine, “As Rays of Light,” chapter 9, original publication pp. 68–69. 46. Pfaff and Tiel, “Ethics of Espionage,” 4. See also Gendron, “Just War,” 399. 47. Quinlan, 2. 48. Ibid., 7. 49. Quinlan, cited in Omand, “Ethical Guidelines,” 619. 50. Ibid. 51. Pfaff and Tiel, “Ethics of Espionage,” 5–10. 52. Ibid. 53. Drexel E. Godfrey, “Ethics and Intelligence,” Foreign Affairs 56, no. 3 (Apr. 1978): 624–42. See response by Arthur L. Jacobs, “Comments & Correspondence,” Foreign Affairs 56, no. 4 (July 1978). 54. Marrin and Clemente, International Journal of Intelligence and Counterintelligence 19, no. 4 (June 2006), 651. 55. Loch Johnson, Introduction to Handbook of Intelligence Studies, ed. Loch Johnson (New York: Routledge, 2007), 6. 56. Valuable contributions include Alex Bellamy, “No Pain, No Gain? Torture and Ethics in the War on Terror,” International Affairs 82, no. 1 (2006): 121–48; and Alex Danchev, “Human Rights and Human Intelligence,” in Intelligence and Human Rights in the Era of Global Terrorism, ed. Steve Tsang (Westport, CT: Praeger Security International, 2007).

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57. For an excellent overview of the ethical issues associated with torture, as well as the arguments for and against the use of torture in interrogation, please refer to Bellamy, “No Pain, No Gain?” 58. Quinlan, 9; Omand, “Ethical Guidelines,” 6. 59. Bellamy, “No Pain, No Gain?” 148; Danchev, “Human Rights,” 108. 60. Quinlan, 9; Bellamy, “No Pain, No Gain?” 142. 61. Dershowitz, cited in Bellamy, “No Pain, No Gain?” 136–37. 62. Herman, “Ethics and Intelligence.” 63. Mark Lowenthal, Intelligence: From Secrets to Policy (CQ Press, 2009), 212; Gill, “Security Intelligence and Human Rights,” 17. 64. Andregg, “Intelligence Ethics,” 55. 65. Omand, “Ethical Guidelines,” 622. 66. Andregg, “Intelligence Ethics,” 60. 67. Abram N. Shulsky and Gary J. Schmitt, Silent Warfare: Understanding the World of Intelligence, 3d edition (Dulles, VA: Potomac Books, 2002). 68. For an evaluation of the different methods of analysis please see ibid., 41–56. 69. Specific forms of intelligence product include indications and warnings, periodic reports, and intelligence estimates. Ibid., 57–61. 70. Andregg, “Intelligence Ethics,” 56. 71. Quinlan, 11. 72. Committee of Privy Counsellors, chaired by Lord Butler, Review of Intelligence on Weapons of Mass Destruction, HC.898 (London: Stationery Office, 2004), 82. 73. Lowenthal, 216. 74. Omand, “Ethical Guidelines,” 620. 75. Lowenthal, 216. 76. Ibid., 620. 77. Gendron, “Just War,” 401; Omand, “Ethical Guidelines,” 615. 78. Omand, “Ethical Guidelines,” 615. 79. See Maher Arar, Report of the Events relating to Maher Arar (Ottawa: Public Works and Government Services Canada, 2006); Franck Iacobucci, Internal Inquiry into the Actions of Canadian Officials in Relation to Abdullah Almalki, Ahmad AbouElmaati and Muayyed Nureddin (Ottawa: Public Works and Government Services Canada, 2008). 80. Quinlan, 11. 81. An excellent illustration of this is the case of Ahmed Zauoi, whose application for asylum upon arrival in New Zealand was rejected because a “Security Risk Certificate” had been issued against him based on intelligence. For full details, please refer to Amnesty International New Zealand’s website on the case, http://www .amnesty.org.nz/web/pages/home.nsf/ec8691c8be84576dcc256e6900136c2b/730 4a4a28f31ee86cc256e670004a1ea!OpenDocument (accessed 28 August 2007). 82. Quinlan, 11. 83. Prominent examples include Robert Hanssen; see ”Life Sentence for FBI Traitor,” BBC News, 10 May 2002, http://news.bbc.co.uk/2/hi/americas/1979063.stm (accessed, 21 August 2007). 84. Andregg, “Intelligence Ethics,” 57. 85. Ibid., 57.

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86. The Bosnian and Canadian examples of whistle-blower protection are described in H. Born, L. Johnson, and I. D. Leigh, Who’s Watching the Spies? Establishing Intelligence Service Accountability (Dulles, VA: Potomac Books, 2005), 46–47. 87. See, for example, the controversy surrounding the British government’s decision to go to war in Iraq: “Blair Brushes off Dearlove Memo,” BBC News, 29 June 2005, http://news.bbc.co.uk/1/hi/uk_politics/4634901.stm (accessed 1 November 2007).

II ETHICS, PARADIGMS, AND FRAMEWORKS

6 Speak No Evil Intelligence Ethics in Israel Shlomo Shpiro

ISRAEL’S NEED FOR INTELLIGENCE ETHICS The Israeli state gives its intelligence services very wide powers to combat terrorism and safeguard its democratic order. These powers include the rights to arrest, interrogate, conduct deep incursions into personal privacy, limit individual freedoms, and even carry out assassinations. Laws and service regulations strive to limit those powers and prevent their misuse or abuse. However, in the vast scope of intelligence activities, there are many times when those laws are not enough to guide or limit the activities of the individual intelligence officer. This is especially true of the case officer, who often works abroad alone or in small groups, and at times without immediate access to his or her superiors. Intelligence officers often face factual problems and emotional dilemmas. Laws and regulations sometimes provide solutions to factual problems but rarely provide answers to emotional dilemmas. This is where intelligence ethics come in. These ethics provide a set of behavioral guidelines based on certain beliefs and views regarding the role of intelligence in society and the interaction between citizen and intelligence officer. Ethics begin where written laws and regulations end, and provide a set of “recommendations” to guide the activities of intelligence officers. Unlike laws and service regulations, which are set on paper and enforced by investigatory powers and the courts, ethics depend much more on the willingness of individual officers to comply. These ethics are also more open to interpretation. Thus ethics develop and evolve over time, reflecting changes in the internal and external environments of intelligence activities. This essay sets out to examine intelligence ethics in Israel and their impact on intelligence work. It outlines the main elements of intelligence 59

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ethics in Israel, explores their practical meaning, and highlights specific incidents or operations that influenced the development of intelligence ethics. It also examines ethical principles in written sources of the various intelligence services and explores the role of commissions of inquiry in the development of intelligence ethics. The article concentrates on five core elements of intelligence ethics in Israel: • • • • •

Telling the truth Protecting your sources internally as well as externally Resisting internal cover-ups Respecting religion Possessing individual moral character

THE ISRAELI INTELLIGENCE COMMUNITY— STRUCTURE AND AUTHORITY The state of Israel was founded on 14 May 1948, as power was transferred from the departing British Mandate authorities to the new Israeli government. One of the first acts of the new government was to ensure legal continuity of previous British legislation, including the controversial Defence (Emergency) Regulations of 1945. This set of regulations was enacted by the British authorities to combat the activities of underground Jewish and Arab militias that sought to remove British rule from Palestine. The Defence Regulations, which have remained in force ever since, provide the Israeli government with wide-ranging powers of enforcement, detention, investigation, and intelligence activities. In 1948 the new Israeli government declared a state of emergency, which remained valid for almost six decades— to this day—ensuring the continuation of the Defence Regulations. Those regulations have formed the legal basis for much of Israel’s intelligence and internal security activities over many years.1 Following its independence, Israel was plunged into war and was invaded by five Arab armies. Israel’s first intelligence service was the General Security Service (GSS), commonly known by its Hebrew acronym Shin Bet or Shabak, founded in late 1948. The GSS was initially tasked with traditional counterespionage and monitoring political extremism. It was also active abroad in the 1950s, with stations at Israeli embassies in Eastern Europe. Since 1967, GSS activities have been greatly expanded, centering on countering Palestinian terrorism inside Israel and in the West Bank and Gaza Strip. In December 1949 Prime Minister David Ben-Gurion ordered the creation of a new intelligence service, the Mossad, to coordinate all foreign intelligence activities of the new state. To head the Mossad Ben-Gurion ap-

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pointed Reuven Shiloah, an experienced intelligence officer and diplomat who has for many years been responsible for clandestine contacts with Arab leaders. Ben-Gurion specifically ordered that the Mossad “will be answerable to me (the Prime-Minister), will act upon my orders and will regularly report to me on its work,” thus establishing prime ministerial responsibility over the intelligence services.2 Under Shiloah and his successor, Isser Harel, the Mossad quickly developed into a foreign intelligence service with worldwide activities. In more recent years, the Mossad concentrated its activities in the fields of global counterterrorism, nuclear weapons proliferation, and threats presented to Israel by Hezbollah and Iran. Both the GSS and the Mossad are under the direct authority of the prime minister. Israel’s third main intelligence service, the Military Intelligence Branch (AMAN), was formed within the Israeli army during the 1948–1949 war. Unlike the GSS and the Mossad, AMAN is not an independent service but is an integral part of the Israeli Defence Force (IDF). Its main field of activities is signals intelligence (SIGINT) but it also traditionally operates human sources in countries bordering Israel. AMAN is answerable to the IDF chief of staff and, through him, to the minister of defense.3

BASICS OF ETHICS—LYING OUTSIDE, TELLING TRUTH INSIDE The most basic principle of intelligence ethics in Israel is telling the truth inside the organization. This element may seem almost self-explanatory, even banal, but the history of intelligence teaches us otherwise. The world of intelligence has been full of expert liars, and indeed, telling the truth is often considered the least desirable option. Agents and case officers, working under false identities over long periods of time, develop different perceptions of the “truth” or “truths,” plural. But the truth, or true and full reporting, is the core of effective intelligence work. Israeli intelligence officers are taught from the outset that they are expected to lie to the whole world, only not to their superiors and colleagues. Lies, half-truths, or omissions can endanger lives, wreck operations, and, worst of all, could taint assessments. For those who lie professionally, it not so easy to make a clear break between lying situations and situations of telling the truth. But telling the truth inside the organization is a basic element in Israeli intelligence ethics. The crucial importance of telling the truth internally was highlighted by the Yehuda Gill affair. In 1997 a former senior Mossad case officer, Yehuda Gill, was arrested for lying to his organization. Gill was a legendary case officer who worked for decades abroad and recruited numerous Arab sources to work for Israel. He was a master of agent recruitment and had an enviable reputation within the Mossad. Gill was considered so successful

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that even after retiring from the Mossad in 1989 he continued to work for the service abroad intermittently.4 In the mid-1980s Gill recruited a Syrian source with contacts deep within Syria’s political and military elite. Gill cultivated this spy for many years and was able to obtain from him valuable information on Syrian military planning, political developments, and leadership. In early 1996 Gill brought his Mossad chiefs alarming information from his Syrian source, claiming that Syria was planning a military attack against Israel shortly. This information dovetailed with some inexplicable Syrian military movements. As a result of this information, the Israeli army was put on high alert and military units were moved to reinforce the Golan Heights border. The situation escalated rapidly as the Syrians mobilized in response to Israel’s moves, and soon both sides stood on the brink of war. The U.S. administration intervened and passed word to Damascus that Israel was aware of their plans. The Syrians denied any war preparations and provided plausible explanations for their movements, and after several weeks the situation on the border went back to normal. Several Mossad officers became suspicious that Gill was exaggerating or even making up the reports of his Syrian spy. A covert investigation tracked Gill’s meetings with his source in Europe. Suspicions against Gill were reinforced when a search of his home revealed large amounts of cash given to him to pass to the Syrian spy.5 After he was arrested, Gill broke down and admitted having spiced up his spy’s reports for many years with false and imaginary information.6 He claimed that at some point, the Syrian agent could not produce any more important information, as he had before, and that he therefore began to embellish the reports in order to remain valuable to the Mossad and to maintain his reputation. Gill’s false reports brought Israel to the brink of war. He was tried before the Tel Aviv district court and sentenced to five years’ imprisonment. Gill’s lies could have pushed the Middle East beyond the brink of war.

PROTECTION OF SOURCES— EXTERNALLY AND INTERNALLY The dream of every case officer is to recruit and run the one source that will bring in the “golden nuggets,” crucial information for the security of the state. Once a source is recruited or agent infiltrated, the temptation is to use it to the maximum. There is always an inherent balance between maximizing the use of any given source, on the one hand, and increasing the risk of its exposure by the opposition, on the other. One element of intelligence ethics is to protect your source from internal as well as external threats. In practical terms, this means protecting the source not only from the enemy but also from overexploitation by overzealous superiors within your own

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organization. Expediency could easily lead to abuse of human sources, and it is up to the case officer to resist, to the best of his or her powers, demands from above that could overexploit the source and hasten his exposure. The ethical responsibility of a case officer to the agent does not end when the agent ceases to be a useful source of information, but also extends to the long-term fate of that agent. The Shabak has traditionally looked after Palestinian agents who were exposed by resettling them inside Israel. Over time, small “communities” of former agents and collaborators developed in or near several Israeli-Arab villages. Former agents were given residency permits in Israel and assisted in finding jobs, helped through bureaucracy, and so on. Another example relates to the fate of Israeli intelligence assets in Lebanon. In early 2000 the Israeli government decided to end its eighteen-year occupation of southern Lebanon and withdraw all Israeli forces to the international border. During the many years of occupation, hundreds of Lebanese worked for Israeli intelligence, for the IDF, and for the South Lebanon Army (SLA), a local pro-Israeli militia. Many of these agents were secretly assembled before Israel’s final withdrawal in May 2000 and were taken into Israel. Many subsequently received financial help and permanent resident status in Israel.7

“ORGANIZATIONAL CULTURE” AND RESISTING INTERNAL COVER-UPS Intelligence work is prone to mishaps, failures, and catastrophes. Every intelligence service strives to keep such scandals secret from the media and public. The usual argument for keeping such affairs secret is that their exposure may adversely affect intelligence sources and methods. That is, of course, the price of democracy that a service must be prepared to pay for failing to prevent the problem in the first place. Until the mid-1980s the Israeli intelligence community had a reputation for effectively concealing its failures and scandals. Intelligence officers were not only forbidden to talk to the press, but it was also considered unethical to tell the truth to the judicial authorities. A culture of cover-ups developed inside the services, which extended even to large-scale perjury. For example, during terrorism trials Shabak officers consistently lied in court when questioned about physical abuse of suspects during interrogation. Even extreme failures were successfully hushed up for decades. One such example was a Mossad operation known as Operation Bren. In 1954 the Mossad learned that an Israeli army officer with access to topsecret military technologies, Major Alexander Israel, traveled to Europe, where he approached Egyptian officials and offered to sell Israeli military secrets and documents. A team of Mossad and Shabak agents was hastily

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dispatched to Europe to kidnap the officer and bring him back to Israel to stand trial for treason. Through sheer luck, the team was quickly able to locate the man in Vienna. He was lured to a meeting by a female agent, where he was kidnapped, heavily sedated, and bundled into an awaiting Israeli military aircraft. The plane had to make several refueling stops, and before each landing the man was again given strong sedatives. When the aircraft reached Israel the man was dead. The head of Mossad ordered the aircraft to take off again, and the body was dropped into the Mediterranean Sea. The Mossad then obliterated every reference to the man in official Israeli files, and the case was kept secret for five decades.8 Generations of Mossad officers heard rumors of this failed operation and many knew the details, but nothing was done to inform the officer’s family or provide for their support. Two events in the mid-1980s, known as the Nafsu affair and Bus 300 affair, dramatically changed that culture of cover-ups. In the Nafsu affair, an IDF intelligence officer named Izat Nafsu, suspected of treason and spying for the PLO in Lebanon, was arrested in January 1980. During his interrogation, Nafsu was tortured by Shabak interrogators until he confessed. Nafsu was sentenced to eighteen years’ imprisonment based on false evidence. After seven years in prison, Nafsu was released by the Israeli Supreme Court when it became known that his confession was obtained by torture. The Bus 300 affair involved four Palestinian terrorists who kidnapped a bus on its way from Tel Aviv to the southern city of Ashkelon in April 1984. They drove through police roadblocks and tried to reach Gaza. The bus was finally stopped on the outskirts of Gaza and stormed by a special military unit. In the ensuing firefight, two terrorists were killed and two others were captured. They were then interrogated on the spot to discover whether they had left bombs on the bus. Once the interrogation was complete, the head of the Shabak, Avraham Shalom, ordered the killing of the two men. A senior Shabak officer carried out the killing in a distant spot. The media were told that all four terrorists were killed in the initial storming of the bus, and the Shabak foiled subsequent investigations into the terrorists’ fate.9 But this cover-up did not end like the 1954 operation. Word of the killings quickly spread inside the Shabak, and three very senior officers confronted their head and demanded his resignation. The three were promptly fired. The affair took an ugly turn when leading politicians became involved in the cover-up. But the three now-former officers insisted on bringing their evidence to the judicial authorities, who had no choice but to investigate until the truth came out and Shalom was forced to resign. The three former officers had been leading candidates for top positions of the Shabak, and they lost everything because of their belief in truth and accountability. The ethics that developed out of those affairs make it almost impossible for such an affair to take place today.

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INTELLIGENCE ETHICS AND THE JEWISH RELIGION Religion plays an important role in everyday Israeli life, even though the majority of Israelis would not define themselves as religious. Religion has traditionally been part of the Zionist ethos, a mixture of Jewish tradition and modern democratic principles. Respect of religions is part of intelligence ethics in Israel. During their early training, intelligence officers are taught about religions and expected to respect other religions, even in extreme situations such as during physical interrogations or operations in the Palestinian areas. Four key religious principles dictate Jewish attitudes toward security measures and risk-taking for defense. These principles, which are written in the Bible and traditional Jewish writings, have become key elements in interpreting the Halacha, the Jewish law. • “He shall live by them [the laws].” The need to live, and not die, is an ultimate rationality for Jewish life. Life itself is sacrosanct, and the continuity of life is therefore a religious decree. This principle is waived in only three cases in which it considered better to die: murder, incest, and worshiping other gods. Intelligence officers are expected to have respect for human life, even that of their enemies. • “He who comes to kill you, you shall kill him first.”10 This principle provides the basis for preemptive defense, and its importance was accentuated by the inferiority in numbers of the Jewish people throughout the ages. It provides the religious justification for many intelligence operations. • “Thou shall not stand idle while thy friend bleeds.”11 Each individual bears a social responsibility that extends to the entire community. This responsibility is not only in words but also in deeds. In practical terms, an intelligence officer is expected to risk himself for others. Refusal to carry out operations, even extremely dangerous ones, is almost unknown in Israel. It is an integral part of intelligence ethics to undertake risks for others. This principle also extends to caring for injured comrades or the families of fallen officers, who remain a part of the wider “intelligence family.” • “Thou shall make war by cunning.”12 The use of intelligence and covert action is a legitimate tool of war and defense policy. The Jewish religion recognizes the need for “dirty tricks” and for activities that in other circumstances would be unacceptable, in order to provide security for the community and preserve Jewish continuity. Indeed, it was the biblical leader Moses who dispatched twelve spies on a reconnaissance mission to the land of Canaan on the exodus from Egypt, and the practice of making war by cunning has continued ever since.

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In the early decades of the Israeli intelligence community, religious people were rarely employed in the services, and almost never in operational positions. Religion did not play a significant role in everyday intelligence life. However, this trend is slowly changing in recent years, especially in AMAN and the Shabak, where religious officers are now employed even as case officers in the field. For those people, intelligence ethics sometimes may come into conflict with religion. It has become acceptable for religious intelligence officers to consult with certain military chaplains or rabbis without divulging operational secrets. Those military rabbis can then answer ethical and moral questions in accordance with the Jewish Halacha. For example, during the summer 2006 Lebanon war, a young IDF officer in a covert reconnaissance unit deep inside Lebanon contacted his rabbi by sending him a cell phone text message. The officer was holed up inside a Lebanese house and wanted to know if he was allowed to charge his electronic equipment from the electric sockets in the house, or if that would be considered theft by Jewish law. The rabbi replied that at times of war such measures are necessary, and since the cost of electricity was in any case marginal, this would be permissible. After the war the young officer told the rabbi that despite his answer, he felt bad and left money in the house to compensate the owners for the electricity he used. There is little doubt that many people would have had no compunction in such a situation, but the officer was obviously determined to behave according to his understanding of religion and ethics even under fire.

INDIVIDUAL MORAL STANDARDS Intelligence officers in Israel have always been expected to have a higher moral standard than the average citizen. In the early years of the state, this arose out of a perception that intelligence personnel were among the social elite and were thus expected to behave impeccably in their personal life. But personal life has its ups and downs, and, despite the strict ethical code, many intelligence officers experienced personal crises and scandals. However, those were usually hushed up in order not to spoil the general image. In more recent years ethics of moral standards have somewhat changed, mirroring deep changes in the wider Israeli society. Intelligence officers are no longer expected to be model family members and paragons of society, but they are expected to at least avoid scandalous divorces and noisy interpersonal affairs. In the late 1980s the Israeli media reported sensationally on how the newly appointed head of the Shabak, Yaacov Perry, was playing the saxophone at internal parties. A disenchanted former Mossad recruit wrote in his memoirs about sex parties at Mossad headquarters.13 However,

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many people acquainted with Israeli intelligence have serious doubts about such reports—not for the lack of sexual drive but because Mossad employees are simply ordinary people and that kind of behavior is not tolerated in Israeli society. Two old examples illustrate the attitude toward personal morals in the early years of the Mossad. One junior Mossad officer told his wife that he was going off on a dangerous mission—and ran into the arms of his mistress. A few days later his worried wife called headquarters to find out when her husband was expected back from his dangerous assignment. The lying husband was recalled immediately and fired on the spot. In the 1950s a young case officer successfully recruited an Arab diplomat serving in a Western European capital. The Mossad officer lavished on the man expensive meals, luxurious hotels, and extravagant gifts, and was able to obtain from him a wealth of much-needed secret information. On several occasions the evening meetings with the Arab spy ended in a high-class brothel. In accordance with common practice, the officer submitted receipts and expense claims upon returning to Israel. One day he was called in for a personal meeting with Mossad head Isser Harel. A strict disciplinarian, Harel was known for his fearsome and austere personality. He congratulated the young officer on his successful recruitment but said there was a slight problem with the accounts. The fact that the officer took his agent to a brothel was a sound operational decision, he said, but how dare he think that the Israeli taxpayer should pay for his own sexual pleasures? The case officer was reprimanded and fined.14

WRITTEN INTELLIGENCE ETHICS AND “BLACK FLAGS” Although intelligence ethics in Israel’s civilian intelligence services remain traditionally unwritten, some elements of contemporary ethics can be gleaned by analyzing service documents in the public domain. Those documents refer to certain ethical elements in the work of the service or in its requirements of new recruits. The only open Mossad document referring to ethics is the service’s official credo.15 The Mossad credo states, “We adhere to the values of justice, honesty, cleanliness of character and simplicity of life, personal honesty and trustworthiness, discipline and secrecy.” It also states that the leadership must accept full command responsibilities, back up its people, delegate authority, and present a personal example and a sense of inspiration. While the Shabak does not have an openly available credo, some elements of its contemporary ethics can be gleaned from recruitment advertisements on its website.16 When referring to new case officers and investigators, the Shabak states that it will not compromise on basic personal traits such as

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honesty, trustworthiness, responsibility, and self-discipline. It promises and expects a sense of mission and a working atmosphere that creates a second home to its personnel. Although these definitions are quite vague, they are the only open sources referring to ethical principles in the Shabak. While the civilian intelligence services have no written ethical code, the situation is different in the military establishment. AMAN draws its ethics from the IDF’s formal written code of ethics.17 This code was formulated in 1994 in order to provide the armed forces with a clear written ethical code that could be studied by young conscripts and would apply to every activity, including intelligence activities. This code of ethics draws its origins from four sources: IDF tradition, Israeli tradition, Jewish tradition, and universal moral standards. The IDF code of ethics sets out three basic principles and ten additional principles. The basic principles are: • Defending the Homeland and its Citizens • Love for the Homeland and loyalty to the State • Respect for Human Beings The ten ethical principles are: Adhering to the mission and seeking victory—fighting with courage and always seeking to achieve victory despite the odds Responsibility—taking active responsibility for the security of the State Honesty—telling the truth; full and true reporting Self-Example—setting an example to others; doing first what you ask from others Human Life—always acting with safety in mind; avoiding unnecessary risks Humane Use of Arms—using your weapon only against combatants and avoiding harming noncombatants Professionalism—seeking to obtain the maximum training and knowledge for your task Discipline—following the letter and the spirit of orders; obeying legal orders and disobeying illegal orders Sense of Purpose—doing everything in your power for the society as a representative of society Some means of warfare in general, and specifically some counterterrorism tactics, raise questions as to their ethical status. Already in the late 1950s, the IDF defined illegal orders as “Black Flags,” which every member of the armed forces is allowed—and indeed expected—to refuse. The catalyst for this definition was an incident during the October 1956 Sinai War.

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The army feared sabotage behind the lines and dispatched a unit of Border Guard soldiers to enforce curfew at Arab villages in Israel. One platoon of Border Guards was stationed at the village of Kfar Kassem on 29 October with orders to shoot anyone who broke the curfew. Many of the villagers were working their fields when curfew was declared and had no idea such a curfew was in force. When those villagers returned to their homes in the evening, some Border Guards lined many of them up and shot them. Altogether almost fifty innocent villagers were killed. Although the orders were the same, nobody was killed in eleven other villages where the local commanders did not carry out the order to shoot. After the war, the officers responsible for the Kfar Kassem massacre were brought to trial. Their defense was that they were only obeying orders from their superiors. The court rejected those claims and declared that some orders are so obviously illegal that “a black flag waves above them”; such orders must be disobeyed. The court defined “acutely illegal orders,” commonly known in Israel as “Black Flags,” as orders that are based on “illegality which stabs the eye and hurts the heart, if the eye is not blind and the heart is not stony or corrupt.”18 Every IDF soldier or officer is entitled and expected to disobey a Black Flag order, and in so doing does not breach military discipline.19 Examples of Black Flags that have been upheld by the courts in the past include a case where soldiers were ordered to steal ammunition from another unit and a case where soldiers were ordered to deliberately sabotage tank engines to lighten the workload of an ordnance workshop.

COMMISSIONS OF INQUIRY While intelligence ethics in Israel remain mostly unwritten, their development has been influenced not only within the services themselves but also by commissions of inquiry that investigate intelligence failures. In the past, intelligence failures played a major role in reinforcing democratic controls and parliamentary oversight of the intelligence community in Israel.20 In many cases of intelligence failures, the Knesset or the government has instituted a commission of inquiry to investigate the failure and recommend ways to prevent similar failures in the future. Most of these commissions operate under a special law that gives them wide powers to summon witnesses and documents, investigate individual persons, and even make recommendations regarding people held responsible for the failure.21 The government usually decides on instituting a commission of inquiry, but once a decision is made the government has no further control over the commission or its work. Commission members are usually appointed by the Israeli Supreme Court and the commission is independent in its work,

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with its own secretariat, staff, and budget. Such commissions are usually chaired by a senior judge and also often include former senior military or intelligence officials as well as external experts. Although most such commissions hold many of their meetings behind closed doors—especially when questioning intelligence officials—some of their discussions are open, and they always release to the media and the public at least a major part of their final report. The publication of a commission’s conclusions is a powerful tool in ensuring that intelligence services learn from mistakes and avoid similar pitfalls in the future. The importance of commissions of inquiry also lies in their ability to mobilize investigative and research manpower, specialist knowledge, and dedication of time; they often work for many months or even years on investigating one particular intelligence topic. The resulting reports have gone a long way to establish intelligence norms and ethics in Israel in areas not covered by current legislation. Throughout Israel’s six-decade history, numerous commissions of inquiry have been set up to investigate intelligence issues, and examining their activities would be well beyond the scope of this article. Some of the more famous commissions of inquiry include: • Olshan-Dory Commission (1956), set up to investigate the Lavon affair, in which Israeli agents were captured in Egypt trying to sabotage British and U.S. targets to prevent the British withdrawal from the Suez Canal zone. • Agranat Commission (1974), set up to investigate the intelligence failures that led to the Egyptian and Syrian surprise attack against Israel in October 1973. • Cahan Commission (1982), set up to investigate the events that led to the massacre by Christian militias of hundreds of Palestinian refugees in the Sabra and Shatila refugee camps in Lebanon. • Shamgar Commission (1995), set up to investigate the intelligence and security failures relating to the murder of Israeli Prime Minister Yitzhak Rabin. • Chechanover Commission (1998), set up to investigate the Mossad’s failed assassination attempt of Hamas leader Khaled Mashal in Jordan. Commissions of inquiry have developed over the years into very effective tools for conducting deep probes into intelligence failures. Their powerful mandate, extensive staff, and long time span made them into formidable tools in the arsenal of intelligence oversight. Indeed, their findings and reports have often been catalysts for major changes in intelligence procedures as well as for setting norms and ethics for intelligence work in Israel.

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CONCLUSION Intelligence ethics developed in Israel out of the acute need to provide an ethical framework for individual intelligence officers who face difficult and often grave decisions in their work for the security of the state. Laws and service regulations are often insufficient to provide answers to ethical and moral questions. Ethics therefore augment those rigid rules by providing a behavioral framework drawing on the four basic elements of Israeli identity: Zionist ideology, Jewish religion, democratic tradition, and personal morals. As part of their work, intelligence officers are often expected to carry out dangerous, illegal, even violent and deadly activities. Laws and service regulations are legal barriers to the excess of power, mostly delineating what is forbidden. Ethics provide the positive moral base for carrying out such activities when justified by real security needs. In this sense, laws and ethics balance one another, providing the working environment for intelligence work. Intelligence ethics in Israel have evolved over the years and their development often mirrored specific intelligence or security problems. These ethics were shaped by milestone events in the development of Israel’s intelligence community. Perhaps the strongest evidence of the importance of intelligence ethics is the open discussion in recent years about what constitute these ethics. The shadowy world of counterterrorism warfare presents intelligence operators with many ethical issues. The importance of intelligence ethics will grow even further as the war on terrorism expands all over the world.

NOTES 1. Shlomo Shpiro, “No Place to Hide: Intelligence and Civil Liberties in Israel,” Cambridge Review of International Affairs 19, no. 4 (December 2006): 629–48. 2. David Ben-Gurion, letter to Foreign Minister Moshe Sharett, 13 December 1949, http://www.mossad.gov.il/About/Ben-Gurion.pdf (accessed 12 May 2006). 3. Ian Black and Benny Morris, Israel’s Secret Wars (London: Hamish Hamilton, 1991), 98–100. 4. “Indictment Details Cleared for Publication,” Haaretz, 7 December 1997. 5. Zeev Schiff, “Mossad Funds Discovered in Yehuda Gill’s House: Search for Further $150,000,” Haaretz, 7 December 1997. 6. Yigal Srena and Anat Tal-Shir, “There Was Always a Dark Secret There,” Yediot Acharonot, 12 December 1997. 7. Altogether Israel took in more than twenty-five hundred SLA personnel on the final day of withdrawal from Lebanon. In 2004 the Israeli Knesset awarded them and their families permanent resident status. See Ranit Nahum-Halevy, “SLA

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Personnel—Israeli Citizens in a Month,” NFC, 7 December 2004, http://news .msn.co.il/news/Internal/Internal/200412/2004120717800.htm (accessed 8 March 2007). 8. Ronen Bergman, “End of the Cover-up,” Yediot Acharonot, 19 January 2007. 9. Most books on Israeli intelligence deal with the Bus 300 affair. For the most comprehensive account of the affair see Ilan Rahum, The Shabak Affair [in Hebrew] (Jerusalem: Carmel, 1990). 10. Rabbi Shlomo Ben Yizhak (Rashi), commentary to Exodus 23. 11. Leviticus 19:16. 12. Proverbs: 24. 13. Victor Ostrovsky, By Way of Deception (New York: St. Martin’s, 1990), 96–97. 14. Shlomo Shpiro, Introduction to The House on Garibaldi Street, by Isser Harel (London: Frank Cass, 1997), xii–xiii. 15. Available in Hebrew at http://www.mossad.gov.il/About/Values.aspx (accessed 8 March 2007). 16. http://www.shabak.gov.il. 17. “The Art of Fighting: IDF Ethics Code,” http://www1.idf.il/DOVER/site/ mainpage.asp?sl=HE&id=32 (accessed 8 March 2007). 18. Judge Binyamin Halevy, Central Command Military Court, Verdict 3/57, IDF Military Advocate vs. Major Melinky and Others, 213–14. 19. For analysis of those definitions and their practical application see Adi Parush, “The Kfar Kassem Verdict, the Black Flag Test and the Definition of an Acutely Illegal Order” [in Hebrew], Iyunei Mishpat 16: 245. 20. For an in-depth evaluation of intelligence oversight in Israel see Shpiro, “No Place to Hide.” 21. Law on Commissions of Inquiry, 1968 (Israel).

7 Ethics for the New Surveillance Gary T. Marx

“If it doesn’t look right, that’s ethics.” —popular expression “I’m in computer science. I took this class because eventually I want to do the right thing.” —MIT student “It’s a remarkable piece of apparatus.” —Franz Kafka, The Penal Colony

The principles of fair information practice are almost four decades old and need to be broadened to take account of new technologies for collecting personal information, such as drug testing, video cameras, electronic location monitoring, and the Internet. I argue that the ethics of a surveillance activity must be judged according to the means, the context and conditions of data collection, and the uses/goals, and suggest twenty-nine questions related to this. The more one can answer these questions in a way that affirms the underlying principle (or a condition supportive of it), the more ethical the use of a tactic is likely to be. Four conditions are identified that, when breached, are likely to violate an individual’s reasonable expectation of privacy. Respect for the dignity of the person is a central factor and emphasis is put on the avoidance of harm, validity, trust, notice, and permission when crossing personal borders. In 1928 Justice Brandeis wrote, “Discovery and invention have made it possible for the government, by means far more effective than stretching 73

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upon the rack, to obtain disclosure in court of what is whispered in the closet. The progress of science in furnishing the government with means of espionage is not likely to stop with wiretapping” (Olmstead v. United States, 1928). His haunting and prescient words clearly apply today, as the line between science and science fiction is continually redrawn and private-sector data collection practices join those of government as a cause of concern. New technologies are constantly appearing for collecting personal information that transcend the physical, liberty-enhancing limitations of the old means. They probe more deeply, widely, and softly than traditional methods, transcending barriers (whether walls, distance, darkness, skin, or time) that historically made personal information inaccessible. The boundaries that have defined and given integrity to social systems, groups, and the self are increasingly permeable. The power of governmental and private organizations to compel disclosure (whether based on law or circumstance) and to aggregate, analyze, and distribute personal information is growing rapidly. We are becoming a transparent society of record such that documentation of our history, current identity, location, physiological and psychological states, and behavior is increasingly possible. With predictive profiles there are even claims to be able to know individual futures. Information collection often occurs invisibly, automatically, and remotely, being built into routine activities. Awareness and genuine consent on the part of the subject may be lacking. The amount of personal information collected is increasing. New technologies have the potential to reveal the unseen, unknown, forgotten, or withheld. Like the discovery of the atom or the unconscious, they bring to the surface bits of reality that were previously hidden or didn’t contain informational clues. People are, in a sense, turned inside out, and the curtilages are shrinking. To be alive and a social being is to automatically give off constant signals of information, whether in the form of heat, pressure, motion, brain waves, perspiration, cells, sound, olifacteurs, waste matter, or garbage, or in more familiar forms such as communication and visible behavior. These remnants are given new meaning by contemporary surveillance technologies. Through a value-added, mosaic process, machines (often with only a little help from their friends) may find significance in surfacing and combining heretofore meaningless data. The ratio of what individuals know (or are capable of knowing) about themselves versus what outsiders and experts can know about them has shifted away from the individual. Data in diverse forms from widely separated geographical areas, organizations, and time periods can be easily merged and analyzed. In relatively unrestrained fashion, new (and old) organizations are capturing, combining, and selling this information, or putting it to novel internal uses. Of particular importance are recent developments in electronic (audio, visual, telemetric), biochemical, and database forms of information collec-

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tion. The increased availability of personal information is a tiny strand in the constant expansion of knowledge witnessed in the last two centuries and of the centrality of information to the workings of contemporary society. Computer databases, video cameras, drug testing, and work monitoring are routine. They are being joined by new means that may become equally prevalent in coming decades: DNA screening and monitoring for insurance and employment, personal electronic location-monitoring devices via implanted chips, Internet monitoring devices that keep a record of what one has viewed and for how long, “intelligent” highway systems, “smart cards” that contain extensive personal information, satellites, and “smart homes” in which data (whether electricity, communications, or energy) flows into and out of the home are part of the same monitored system. These technologies constitute the new surveillance.1

BROADENING THE PRINCIPLES OF FAIR INFORMATION PRACTICE Most discussions of the ethics of computer surveillance are informed by the principles of fair information practice that received widespread public notice in 1973 when they were drafted by the U.S. Health, Education, and Welfare Department. Colin Bennett’s work for the Canadian Standards Association has expanded these to include:2 (1) accountability; (2) identifying purposes; (3) openness; (4) limiting collection; (5) limiting use, disclosure, and retention; (6) accuracy; (7) safeguards; (8) individual access; and (9) challenging compliance. In offering publicity, complaint, and compliance mechanisms, these standards are clearly an advance over the minimalist standards of the earlier period. The data protection model just given forms the basis of the Organization for Economic Cooperation and Development (OECD) guidelines and of most national legislation. This model has generally been seen as appropriate for the database forms of surveillance up to the 1980s. One concern of the conference at which this paper was presented was whether this model still applies, given recent changes such as those involving cross-border data flows and the spread of Internet usage. A related question is whether the model is (or ever was) adequate for other forms of the new surveillance, not just for those that are exclusively computer based. The information superhighway is not the only road into or out of people’s lives. I argue that this model is not adequate and that a more encompassing framework is needed. For example, the conventional principles offer no criteria for deciding if a given means of data collection is ethically acceptable. Nor do they give adequate attention to the actual process of extracting the data. This is because the collection of the data entered into computers is usually

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not at issue; it most often involves a biographical fact or a transaction. That is not the case for urine drug testing, polygraph testing, or hidden video cameras. Yet this issue will become more important for computers. As we move from data entered into a computer by an operator at a terminal to remote, automatic entries based on visual, auditory, and biometric data, questions about the appropriateness of the initial data collection will become increasingly important. The essence of the fair information practice code involves informed consent, unitary usage, and nonmigration of the data. These are essential, but they are of little help with respect to the appropriateness of the original goals, nor do they adequately cover the broader context within which the data are collected. My concern here is to offer a broader set of principles for all forms of technological personal data collection and use, not just those involving computers.3 The fair information principles need to be located within a more general framework. They are not sufficient for many of the new technologies and uses. Information technologies are controlled by laws, organizational policies, various protective countertechnologies, and etiquette (Marx, 1994). Data-gathering and protection efforts imply ethical assumptions that are often unstated. In what follows I suggest an ethical framework for thinking about personal surveillance and new information technologies (although the principles suggested also apply to traditional means such as informing and eavesdropping). Public opinion polls consistently show that a very large percentage of Americans are concerned about their personal privacy. But the elements of this are muddled and muddied. Given the newness of the technologies, the value conflicts, and the multiple components of privacy, opinion here is less well defined and coherent than is the case for many other issues. People often have trouble articulating what seems wrong with a surveillance practice beyond saying that privacy is invaded. Privacy is a vague catchall term that includes a variety of concerns, such as respect for the personhood, dignity, and autonomy of the individual (including the sentiments behind the First, Fourth, and Fifth Amendments); private property; and solitude. Many people feel a sense of discomfort in the face of indiscriminate drug testing,4 hidden video cameras, electronic work monitoring, and the collection and marketing of their personal information, even as they favor responsible behavior, efficiency, economic growth, and credit card–aided consumption. But what is it about the new information technologies that is troubling? By what standards should we conclude that a given practice is right or wrong? My initial goal as a social scientist is to understand the factors that can generate unease across a variety of contexts. I argue that at an abstract level there are shared expectations in American culture, and perhaps to a degree more generally in Western and industrial-capitalist cultures, whose viola-

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tion underlies the discomfort experienced in the face of new information technologies. I seek to identify the major normative factors that would lead the average person to feel that a surveillance practice is wrong, or at least questionable. I differentiate various elements of the surveillance setting that require ethical analysis. Twenty-nine questions to be asked about those elements are listed later in this chapter. These questions involve the tactic, the data collection context, and the goals. Without claiming that they are morally equivalent, I argue that the more one can answer these questions in a way that affirms the underlying principle (or a condition supportive of the principle), the more ethical the use of the tactic is likely to be. The emphasis here is on the watchers rather than the watched, on avoiding harm rather than doing good,5 on the individual more than the group,6 and on the short rather than the long run. This article suggests a perspective on ethical analysis for those who carry out the surveillance or data collection. It assumes that under appropriate conditions they may have a right to do this, but they also have a duty to do it responsibly. Reciprocally, those subject to legitimate surveillance may have duties as well (e.g., not to distort the findings), even as they also have rights not to be subjected to some forms of surveillance.7 Let us begin the analysis by making a distinction between (1) the means (instrument) of data collection, (2) the context and conditions under which the data are gathered, and (3) the uses/goals to which the data are put. There is a temporal sequence here, as we start with the means and then move to collection and use. These may, of course, overlap (as when a system of retinal eye pattern identification to which persons consent automatically results in access or its denial). But they are often distinct. A given means (such as video) can be used for a variety of goals, and a given goal (such as drug testing) can be done in a variety of ways. Means and goals apart, the conditions under which these are joined also show enormous variation. The ethical status can vary from cases in which the means, the context, and the use are all abhorrent to those in which they are all acceptable or even desirable, in varying combinations. Ethical analysis needs to consider all three factors. Beyond different value priorities and interpretations, disagreements in evaluation often involve persons emphasizing one rather than another of these elements.

QUESTIONS TO HELP DETERMINE THE ETHICS OF SURVEILLANCE A. The Means 1. Harm: Does the technique cause unwarranted physical or psychological harm?

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2. Boundary: Does the technique cross a personal boundary without permission (whether involving coercion or deception or a body, relational, or spatial border)? 3. Trust: Does the technique violate assumptions that are made about how personal information will be treated, such as no secret recordings? 4. Personal relationships: Is the tactic applied in a personal or impersonal setting? 5. Invalidity: Does the technique produce invalid results? B. The Data Collection Context 6. Awareness: Are individuals aware that personal information is being collected, who seeks it, and why? 7. Consent: Do individuals consent to the data collection? 8. Golden Rule: Would those responsible for the surveillance (both the decision to apply it and its actual application) agree to be its subjects under the conditions in which they apply it to others? 9. Minimization: Does a principle of minimization apply? 10. Public decision making: Was the decision to use a tactic arrived at through some public discussion and decision-making process? 11. Human review: Is there human review of machine-generated results? 12. Right of inspection: Are people aware of the findings and how they were created? 13. Right to challenge and express a grievance: Are there procedures for challenging the results or for entering alternative data or interpretations into the record? 14. Redress and sanctions: (a) If the individual has been treated unfairly and procedures violated, are there appropriate means of redress? (b) Are there means for discovering violations and penalties to encourage responsible surveillant behavior? 15. Adequate data stewardship and protection: Can the security of the data be adequately protected? 16. Equality/inequality regarding availability and application: (a) Is the means widely available or restricted to only the most wealthy, powerful, or technologically sophisticated? (b) Within a setting, is the tactic broadly applied to all people or only to those less powerful or unable to resist? (c) In settings where differential application is appropriate, do surveillants (both those responsible for the decision to use a technology and those who actually apply it) have enough confidence in the system that they would willingly submit to it themselves if they were in the situation?

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(d) If there are means of resisting the provision of personal information, are these means equally available or restricted to the most privileged? 17. The symbolic meaning of a method: What does the use of a method communicate more generally? 18. The creation of unwanted precedents: Is it likely to create precedents that will lead to its application in undesirable ways? 19. Negative effects on surveillants and third parties: Are there negative effects on those beyond the subject and if so, can they be adequately mediated? C. Uses 20. Beneficiary: Does application of the tactic serve broad community goals, the goals of the object of surveillance, or the personal goals of the data collector? 21. Proportionality: Is there an appropriate balance between the importance of the goal and the cost of the means? 22. Alternative means: Are other, less costly means available? 23. Consequences of inaction: Where the means are very costly, what are the consequences of taking no surveillance action? 24. Protections: Are adequate steps taken to minimize costs and risk? 25. Appropriate versus inappropriate goals: Are the goals of the data collection legitimate? 26. The goodness of fit between the means and the goal: Is there a clear link between the information collected and the goal sought? 27. Information used for original versus other unrelated purposes: Is the personal information used for the reasons offered for its collection and for which consent may have been given, and do the data stay with the original collector or do they migrate elsewhere? 28. Failure to share secondary gains from the information: Is the personal data collected used for profit without permission from or benefit to the person who provided it? 29. Unfair disadvantage: Is the information used in such a way as to cause unwarranted harm or disadvantage to its subject?

THE MEANS Are there some means of personal information collection that are simply immoral, apart from how and why they are done? Torture is an obvious case. Other techniques many observers find unethical include the polygraph, with its tight-fitting bodily attachments,8 manipulation, and questionable validity; a drug test requiring one person to urinate in front of another; and harming or threatening friends or relatives of a suspect in order to obtain information.

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Similarly, most people recoil at the thought of certain coercive bodily intrusions such as pumping the stomach of a suspect believed to have swallowed evidence or removing a bullet from the body for ballistics matching (practices that the courts have generally also prohibited). Body cavity searches occupy an intermediate position. In contrast, the nonconsensual collection of hair, blood, and fingerprints has greater acceptability. For many moral theorists and much of society, lying, deception, and manipulation constitute a cluster of means that in and of themselves are ethically questionable.9 These come together in the case of undercover tactics. Such means (unlike many other surveillance means) always present a moral dilemma. This is not to suggest that under certain conditions and for certain ends they may not on balance be appropriate. But no matter how compelling the latter, this does not alter the fact that in our culture neither lying and trickery nor physical force and coercion are morally preferred techniques. Having listened to the debates for decades and examined a great variety of empirical data, I think there is a folk morality that underlies judgments made about the collection of personal information. A popular expression claims, “If it doesn’t look right, that’s ethics.” And when the means do not look right, I hypothesize that the act of collecting personal data is likely to involve saying “yes” to one or more of the following questions: (1) Does the act of collecting the data (apart from its use) involve physical or psychological harm?10 (2) Does the technique produce invalid results? (3) Does the technique cross a personal boundary without notice or permission (whether involving coercion or deception or a body, relational, spatial, or symbolic border)? (4) Does the technique violate trust and assumptions that are made about how personal information will be treated (e.g., no secret recordings)? To the extent that one or more of these concerns are present, the means as such raise ethical concerns. While distinct, these factors can, of course, be related (e.g., in crossing a personal boundary the betrayal of trust can cause harm). In spite of the fact that some data collection or surveillance means are inherently undesirable, most contemporary disputes do not involve the means as such; rather, they involve the context and the ends. Ethical disagreements and problems are more likely to be found in the conditions around the data collection and/or in the use of the data than with the means. There is also an accelerating effort to develop “softer” and more valid technologies for which the answer to some of the four questions just posed is “no.” My argument reflects a more general perspective on ethics that stresses context rather than behavior or a technology as such. We often tend to act as if the material technology or behavior and its moral evaluation were one,

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instead of seeing the latter as a social construct whose application depends largely on the setting and not the technology or the behavior in and of itself.11 For example, contrast a weapon used to hunt food with one used in the commission of a crime, or a location-monitoring device carried by a skier as a protection against avalanches with the surreptitious application of such a device to a person’s car. Similarly, omnipresent video surveillance, even in bathrooms, is not treated as an inappropriate invasion of privacy in prisons for security and safety reasons, while in most other settings it would be.

THE DATA COLLECTION CONTEXT With respect to context, we ask how the technique is applied and in what social setting. Simply having a means that is morally acceptable is not sufficient justification for taking action. We also need to attend to the context of its application and then to its use. A distinction here can be made between (1) the actual collection of the information and (2) the broader conditions surrounding that collection. In the first case we are again concerned with the presence of harm, invalidity, unwarranted border crossings, and violations of trust. In this case we assume it is possible to collect the information in an ethically acceptable fashion that avoids these four conditions. We draw attention to the discretion surveillants have to behave within or beyond ethical bounds in their use of such a means. Data Collection Harm With respect to harm during the process of information collection, tactics such as interviews, psychological tests, drug tests, and searches can be done in ways that minimize or maximize discomfort. Examples include intentionally inflicting pain in drawing blood (e.g., in the mandatory AIDS tests required of those in prison and the military); a sexual mismatch in a strip search; or a stressful application of the polygraph. Invalidity Validity here refers to whether the tactic is applied correctly and measures what it claims to measure. It is reasonable to expect that surveillance means will, in Chandler’s (1957) words, reflect “the tangled web of fact” rather than the “austere simplicity of fiction.” Some questions here include

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who has warrant to claim whether or not it is valid, where lines are drawn, how hazy data should be interpreted, and what the costs are to those using invalid technologies. Situations in which invalid readings result (whether out of malevolence, incompetence, good-faith errors, faulty machines, or unaccounted-for confounding factors) are obviously unfair and wasteful (not to mention the liability issues involved in wrongful application and use). There must be a means to verify results. It must not be assumed that fallible humans can design and operate infallible machines (or, given their complexity, that machines are infallible). The issue of validity as a principle is not publicly disputed. Privately, surveillants are sometimes indifferent to validity because the means are seen as a scare tactic that deters, or those assessed are believed to be guilty or undeserving anyway, even if the test doesn’t reveal it this time. Individuals may not discover the invalidity, and the cost of increasing validity may be deemed to be too great. Lack of validity may apply to an individual case, as with the switching of a positive for a negative drug test, or factors that can confound a drug test, such as taking a prescription medicine or eating poppy seeds. Problems of validity can apply to a broad group, as when a large number of false readings result because of faulty lab procedures (as in an unfortunate U.S. Navy case) or data entry errors (as with the case in a small New England town in which all the credit records were deemed bad). A pattern of systematic errors is particularly troubling, producing what amounts to the institutionalization of unfairness. Border and Trust Violations The law makes a reasonable expectation of privacy and the “right to be left alone” central criteria. Yet judges apply this inconsistently depending on the offense (e.g., in drug cases the standard is less stringent and its legal meaning is vague).12 Apart from the law, under what conditions are individuals likely to feel that personal borders have been violated and/or that their information has been inappropriately gathered or treated?13 On the basis of interviews, observation, court cases, and mass media accounts, I hypothesize that this is likely to involve one or more of the following four conditions: 1. A “natural” border protective of information is unreasonably breached. The restriction here is on the senses. The assumption is that what you can “normally” or “naturally” see or hear when your presence is not hidden, you are entitled to perceive, although not necessarily to share. However, tools that extend the senses require special permission or notice. There are several distinct categories here:

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(a) clothes that protect parts of the body from being revealed (nakedness), (b) observable facial expressions or statements or behavior, as against inner thoughts and feelings (masks), (c) the assumed nonobservableness of behavior behind walls and closed doors, in darkness, and across spatial distance (shields), (d) skin and bodily orifices that serve, respectively, as protective shells or gates into the body (barriers), and (e) directed communications such as sealed letters and telephone and e-mail messages that are sent to a particular person with physical protections intended to exclude consumption by other than the addressee (wrappers; contrast expectations here with an open message on a bulletin board or yelling to someone across the room). 2. A social border assumed or expected to be protective of information is breached. This involves expectations about social roles such as a doctor, lawyer, or member of the clergy who violates confidentiality; a family member or friend who reveals secrets; or a bureaucrat who fails to seal or destroy confidential records when that is required. It would also extend (if not as strongly) to reading faxes or photocopy material belonging to others but left on the machine. The relationship between the data collector and the subject may condition evaluations, as may the place. Thus formal means of data collection are generally more appropriate in impersonal settings where there are fewer expectations of trust than in settings where individuals have close personal relations. Contrast, for example, the extensive formal monitoring of those working in financial institutions with applying video cameras, drug tests, the polygraph, and electronic location monitoring to children or spouses within a family. 3. A temporal or spatial border is breached that separates information from various periods or aspects of one’s life. This involves assumptions about the compartmentalization or isolation of elements of personal biography, including the past and the future and information in different locations. While the individual may have no clear interest in protecting any single aspect (age, education, religion, occupation), the picture significantly changes when a mosaic can be created from many diverse pieces. The sum becomes much greater than the individual parts. This overlaps item 1 above in the sense that before linked computers there were “natural” barriers to combining this information even when it was public available.14 More abstractly, physical barriers and time were traditionally similar in working against the aggregation of information. The presumed ability to simultaneously access and link the past, present,

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and predicted future alters the traditional meaning of time and the information protection it offered. Borders have legitimate and illegitimate crossing points and interstitial and gray areas. The collection of information in a public setting such as a street or park is different from that in a private setting. Even there, being invited in the front door is very different from breaking it down or sneaking in the back. Sitting on a park bench and leaning to overhear two people whispering is different from listening to a soapbox oration on the same bench. However, the public-private place distinction may become hazy, as when a person on a public street looks in the window of a home, or loud music or cooking smells from a home go beyond it, or in places with a mixed public-private character such as shopping malls, universities, and business and industrial parks. 4. We assume that interaction and communication are ephemeral and transitory, like a river, and are not to be captured through hidden video or audio means. This is believed to encourage candor and intimacy. Similarly, we assume that things that are discarded in the garbage will in fact disappear and not be claimed by information scavengers. This is the “short shelf life assumption.” Other factors being equal, things that are said and the material artifacts of our personal lives should not have a continued life after use. This is a case where the garbage is not messy. One could argue that if you discard something unshredded in a trash can on a public street, you are offering implied consent for whatever happens to it. But that is a weak argument. Why should one have to go to the added inconvenience of dealing with a shredder simply because others have the ability to access the garbage? Better to pass laws prohibiting such activity, as Beverly Hills, California, has done. Nor is the problem here the failure to inform; telling people their garbage would be surveilled would hardly justify doing it. Why should we have an expectation that our garbage will be private? Expended artifacts that have been within the protection of the home may still merit protection (bottles indicating the kinds of medications a person takes, correspondence, credit card bills, or literature) for several reasons. Such protection may prevent the theft of identity, fraud, and other crimes and harassment. It can prevent the aggregation of individual bits of personal data into a meaningful whole. When this isn’t possible, the backstage presentations that are central to self and to organizational life are weakened. This may mean strategic disadvantage, stigma, or merely embarrassment and a sense of being invaded. When personal information becomes public without our consent, it loses its value as a currency in interpersonal relations.

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Awareness and Consent There are social roles that are granted the right to transcend personal boundaries without consent and sometimes even awareness, such as police and emergency medical personnel (if, in principle, under controlled and accountable conditions). For example, there are cases where the presence of awareness or consent would defeat a legitimate purpose, as in undercover or audio/video recordings in criminal justice investigations and/or cases involving dependent persons. However, in conventional settings the failure to inform, or a coercive lack of choice in extracting information, is of a different order. Personal border crossings and trust are related to—and even defined by—(1) whether individuals are aware that personal information is being collected (and by whom and for what purpose) and if so, (2) whether they agree to the collection and subsequent uses of the data. An important issue is specification of when awareness, awareness and consent, or neither ought to apply. To consent implies being aware, but the reverse is not necessarily true. These are difficult concepts, since no one can be fully aware of all the possible consequences of the act of data collection or of its subsequent uses. In the same way, consent is always conditioned by the range of choices and their relative costs and benefits. There are also degrees of awareness, such as full awareness that a tactic may be used versus knowing that it will be used but not in precise detail where and when (e.g., the location of a hidden camera, or whether or not there is a monitor/recorder behind a known camera). A nice example of the joining of being informed with consenting are some websites that tell users that “cookies”—bits of text stored on an inividual’s computer that can be used to personalize content or to track a user’s Internet activity—may be activated or blocked as the user chooses.15 The check-off option offered by some magazine subscription services with respect to not having one’s personal information reused is another. One component of justice is fair warning—providing people with information about the rules, procedures, rewards, and punishments they are subject to. Beyond showing respect for the individual, full disclosure can be a means of shaping behavior, as individuals know they will be assessed and may behave accordingly (e.g., paying bills on time to avoid being databaselabeled as a bad credit risk). Openness regarding data collection can also help bring accountability to the data collectors; since it comes with an address, responsible behavior on their part may be more likely as a result. In that regard it is similar to a supervisor’s walking behind and monitoring workers rather than doing it secretly via remote computer. The knowledge of who is doing the monitoring can be a constraint on how it is done.

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We can also ask if consent is given by “opting in” or “opting out.” In the latter case, individuals are told that their individual data will be used for other than its original purpose only if they give their permission. In the former, individuals are told that their data will automatically be used for other than its original purpose unless they request otherwise. Those with an interest in gathering the data strongly prefer the opt-out system. To be sure, that is better than offering no choice at all, but since many people will be ignorant of the possibility of opting out or will not want to take the time, not remember, or be unaware of the potentially negative consequences of providing personal data, the opt-in system is preferable. In addition, the op-in system symbolically shows greater respect for the person. Requiring the data collector to ask permission implies that the protection of personal information is the norm and its use for secondary purposes is an exception for which special action is required (i.e., the individual needs to affirm that he or she is willing to give up the data, rather than passively giving it up by doing nothing, as with the failure to opt out). The concept of consent, of course, can be very problematic given the role of culture in shaping perceptions and the fact that choice always occurs within situations that are not fully free or within the making of the person choosing. For example, the meaning of choice with respect to agreeing to take a drug test is very different in a one-industry town than in a setting where one can find equivalent work in which not all employers require such a test.16 In flying on a domestic Canadian airline, I saw the following sign: “Notice: Security measures are being taken to observe and inspect persons. No passengers are obliged to submit to a search of persons or goods if they choose not to board our aircraft.” Rather than spend days in the car or on the train, I chose to fly and “agreed” to be searched. Most people would do the same. But to claim the choice is somehow voluntary, as the sign suggests, is disingenuous in the extreme. The situation is the same for signs in some federal buildings that warn, “In entering here you have agreed to be searched.” In a related example, during a controversy over caller ID service, a telephone company representative said, “When you choose to make a phone call, you are choosing to have your phone number released.” Choice, to be meaningful, should imply some genuine alternatives and refusal costs that are not wildly exorbitant. We also need to ask, “Consent to what?” Thus, a mass marketing executive reports, “The data isn’t out there because we stole it from them. Someone gave it away, and it’s out there for us to use.” In a legal sense, that is true. But the element of “giving it away” was not a willful choice in the obvious sense; rather, the data became available indirectly as a result of taking some other action, such as making a mail-order purchase. At the time, if individuals were to be asked if they agreed to have their personal information used

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for marketing purposes (as is the case with some purchases), there would be far less “out there” waiting for specious disclaimers about its nontheft. We can also ask, “Who consents?” When children follow the advice of a television clown telling them to hold their telephone receivers in front of the TV while a remote signal sent through the television set activates the phone, sending its number over an 800 line, they have acted voluntarily. But they did not know that this was to be used for direct-mail candy marketing, and even if they did, the claim that small children can “consent” simply by following the instructions of a clown on TV seems specious. This subject can also be approached by asking, “Who is informed and who needs to consent?” In phone transactions it is now common to be told, “This conversation may be recorded to ensure quality service.” The employee is informed and may have consented. For the customer only the first reasonably applies (although in choosing not to hang up an implicit consent is offered, but again this can be a specious choice given the need for information or service that prompted the customer to call). None of the principles offered here is unconditional. With all these complexities and competing values, the absence of informed consent is not automatically a sign of unethical behavior (although situations where it could be offered, and is, are clearly morally preferable to those where it is not). Nor is the presence of consent sufficient. Thus the law and morality set limits on what can be agreed to (e.g., limits on selling one’s vote or selling oneself into slavery or agreeing to live in substandard housing for reduced rent; Radin, 1996). Similarly, informing people of an outrageous tactic does not justify it. Neither a technology’s potential nor public knowledge of its use nor consent should be sufficient to define a reasonable expectation of privacy, though they relate to it. Even if the data gatherer does not offer a formal choice, it may be possible to have the equivalent of choice by using countertechnology to block the collection of personal information (assuming one is aware of the collection). If devices to prevent the unwarranted collection of personal information are widely available but nevertheless not used, then there is a sense in which individuals do choose to release their private information; that is not the case, however, if such means are very expensive or difficult to use. An element of choice may also be present when privacy becomes so commodified that individuals can choose by payment or compensation the level of privacy they desire. Yet it is still important that privacy thresholds be available below which no one is unprotected. Minimization One aspect of harm and crossing possibly perilous personal orders involves going farther than is required or than has been publicly announced

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(and perhaps agreed to by the subject). To do so may be experienced as a kind of informational rape, violating dignity and trust. Here we ask, “Does a principle of minimization apply to the collection of personal data?” Such a principle requires that one should go no farther than is necessary for the task at hand, in spite of temptations and incentives to go beyond. Granted that many of these tactics by their very nature cross personal boundaries and may subject the person to feelings of embarrassment, shame, and powerlessness, we can still ask, “Was this done in a professional manner and only to the extent necessary to obtain the informational end, or does it go beyond that?” For example, is wiretapping applied in a categorical way such that all communications are listened to, or only those pertaining to the focused goal? If federal minimization rules are followed regarding wiretapping, it will be only the latter. If a conversation is not relevant or involves parties not of legal interest, it is not to be monitored (of course, this also offers a way of neutralizing it if one can assume that the rules will be followed). A related example is the very precise limits of time and place of search warrants. In contrast, many private-sector data gatherers face no such limits. As an “insurance” policy, data collectors often favor gathering more information rather than less, because they can never be sure that some time in the future they might not need it, or that a new way of using it might not be discovered. Consider large retail chains that routinely ask even cash purchasers for their names and phone numbers. Computer models now mine detailed retail transaction data for marketing purposes. Other examples of extraneous data collection are the unrelated questions about lifestyle and social circumstances that accompany warranty forms. Medical samples taken for employment purposes may be analyzed for conditions for which informed consent has not been given. Or, in a Washington, D.C., case in which Hitchcock’s Rear Window meets twenty-first-century technology, rotating cameras used to monitor traffic may focus on high-rise apartment buildings during slack traffic hours near bedtime. The potential to go too far is also found among the systems operators for many networked computers. For example, some interactive computer games or other services that involve using software on a company’s Web server give the company the opportunity to explore everything on a user’s computer. There may be valid reasons for doing this (e.g., to see if a player has stolen or misused files), but there is no justification for looking at other, unrelated files. In the same way, providers of telephone and e-mail services may need to monitor communication to be sure their systems are working, but to listen to conversations or read e-mail beyond what may be technically required for service reasons is wrong for reasons of dignity, trust, and property. Yet the temptation can be great.

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The Social Setting The second aspect of the conditions of data collection involves the broader social context rather than the direct application of the tactic as such. I identify six procedural, or enabling, conditions and four negative conditions involving the social setting. The presence of the enabling conditions and the absence of the negative conditions do not make a tactic ethical, but they do increase the likelihood of ethically acceptable outcomes. Some procedural conditions are: 1. Public decision making: Was the decision to use a tactic arrived at through some public discussion and decision-making process? For example, are the conditions of computer and telephone work monitoring of reservation and telephone receptionists developed jointly through a management union or worker’s council committee? Is the introduction of a new technology for delivering unlisted phone numbers (e.g., caller ID) subject to broad review via citizen input and a regulatory commission, or simply offered by technological fiat? Is a decision to introduce video cameras onto highways and public streets discussed by the city council? 2. Human review: Is there human review of machine-generated results? This is vital, given the acontextual nature of much of the data the technology generates and the possibility of hardware and software failure. Generally, individuals as interpreters of human situations are far more sensitive to nuance than are computers, even if they are much more expensive.17 3. Right of inspection: Are people aware of the findings and how they were created? Fundamental aspects of procedural justice include being entitled to know the evidence and, as the next condition suggests, to challenge it. The right to see one’s file is related to a broader principle that holds that absent special conditions, there should be no secret personal databases in a democratic society. 4. Right to challenge and express a grievance: Are there procedures for challenging the results or for entering alternative data or interpretations into the record? 5. Redress and sanctions: If the individual has been treated unfairly and procedures are violated, are there means of redress and, if appropriate, for the destruction of the record? Are there means of discovering violations and penalties to encourage responsible surveillant behavior? Unlike Europe and Canada, where there are official data commissioners who may actively seek out compliance, in the United States it is up to individuals to bring complaints forward. But in order for that

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to happen they must first be aware that there is a problem and that there are standards. 6. Adequate data stewardship and protection: Can the security of the data be adequately protected? There must be standards regarding who has access to the data and audit trails, whether and when data is to be updated, how long it is to be kept, and the conditions under which it is to be destroyed. Finally, four more general questions deal not with a given individual, but with broader social consequences: 1. Equality/inequality regarding availability and application: This involves four questions. (a) Is the data collection means widely available or restricted only to the wealthy, powerful, or technologically sophisticated? (b) Within a setting, is the tactic broadly applied to all people or only to those less powerful or unable to resist? (c) Even in settings where differential application is appropriate, would the surveillants (both those responsible for the decision to use a technology and those who actually apply it) have enough confidence in the system that they would willingly submit to it themselves if they were in the situation? (d) If there are means of resisting the unwarranted acquisition of personal information (whether technically, economically, or legally), are these equally available or restricted to the most privileged? The first question applies particularly to conflict and hierarchical settings and relates to Kant’s principle of universalism or consistency that asks, “Would it be acceptable if all persons or groups used the tactic?” The democratization of surveillance as a result of low cost and ease of use can introduce a healthy pluralism and balance (as well as reciprocal inhibitions in use, for fear of retaliation). On the other hand, this may also help create a more defensive and suspicious society, with an overall increase in anxiety-generating and resourceconsuming surveillance and countersurveillance.18 The equal application of questionable means can hardly be cause for celebration. The value on equality here is not the usual one of valuing it for its own sake. It is more instrumental in that equality of access can serve either as a deterrent to misuse or as a case of “turnabout is fair play.” We can also apply a principle of consistency that asks whether the tactic is applied to everyone (which is different from asking, “What if everyone applied it?”). Here we ask about equality within a setting: Is the tactic (particularly if it is controversial) applied to all, or only

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to some (usually those lower in status)? For example, are executives drug-tested and are their phone and e-mail communications subject to monitoring in the same manner as those of other employees? If a bitter pill must be swallowed on behalf of some presumably greater communal good, it seems easier administratively and fairer if all share the cost, rather than the least privileged or those least able to resist. If there is inequality, we need to ask whether the rationale for differential applications is clear and justifiable. Finally, we need to consider (in the absence of being able to “just say no”) whether there are means available that make it possible for people to maintain greater control over their personal information, and if so, how widely available these are. Some means, such as providing a false name and address when the request is irrelevant (as with paying cash for consumer electronics) or free anonymous e-mail forwarding services, are available to anyone. In other cases, privacy may come with a price tag, as with the purchase of a device for shredding records, having an unlisted phone number, or possessing the technical skill to encrypt one’s e-mail or telephone communications. 2. The symbolic meaning of a method: What does the use of a method communicate more generally? Some practices look morally objectionable simply because they deeply violate a fundamental principle, such as respect for the dignity of the person. Something much broader than the harm to a particular individual may be involved. There is a sense in which a social value is undermined and the community as a whole may be harmed.19 This also has major implications for political action. As Priscilla Regan (1995) observed, until privacy infringements come to be defined as social rather than simply individual violations, the political will for strong privacy legislation will be lacking. 3. The creation of unwanted precedents: Is it likely to create precedents that will lead to its application in undesirable ways? Even if a new tactic seems otherwise acceptable, it is important to apply a longer-range perspective and consider where it might lead. The social security number that has become a de facto national identification number, which Congress clearly did not intend when it was created, is an example. 4. Negative effects on surveillants and third parties: Are there negative effects on persons other than the subjects? For example, what is the impact on the personality of a professional watcher or infiltrator? Super electronic sleuth Harry Caul in the film The Conversation is suggestive. Over the course of his professional career Caul becomes paranoid, devoid of personal identity, and desensitized to the ethical aspects of surveillance. In another example, there is some evidence that police who use radar guns in traffic enforcement have higher rates of testicular cancer. Audio- and videotaping may record the behavior

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of suspects, as well as that of their families and friends. Surveillance tactics often have consequences beyond their intended target, and their possible implications for others needs to be considered along with the possibility of mitigation. Uses of Surveillance Data Let us move from the tactic itself and the social context in which information is collected to its actual use. The first two may be ethically acceptable even as the uses to which the data are put are ethically unacceptable. One approach is to adopt a principle of proportionality in which means and ends stand in appropriate balance. For example, one does not use a sprinkling can to put out a house fire or a sledgehammer to crack open a nut. The danger is that the more important the goal, the greater may be the acceptance of means that are less than ideal.20 This principle encourages us to think comparatively about means. Where a less-than-ideal means is preferred, we need to ask, “Are other, less costly means available?” Where they are not and the costs of the favored means are great, we need to ask, “What are the consequences of taking no action?” Obtaining consensus on either the importance of the goal or the costliness of the means is not an easy task in a heterogeneous society. I am not suggesting that the ends should justify the means, but that in other than extreme cases, they are certainly relevant to a consideration of the means. Where means involve significant risks and costs, the case needs to be affirmatively made for why their use is appropriate, given the goal, and for the steps that are taken to minimize costs and risks. Another related approach is to consider the type of goal and who benefits from achieving the goal. Thus, it is easier to justify crossing a personal border when the goal serves the community rather than the personal goals of the data gatherer. For example, a recent requirement that prospective air passengers provide personal identification or submit to X-ray body searches is undertaken for broad, community-serving goals. This action is also intended to serve the presumed goal of the individual flyer. Equivalent surveillance undertaken by a merchant is morally much less compelling since it directly benefits neither the community nor the individual. Similarly, a ban on smoking in public places in which the goal is to protect nonsmokers seems easier to justify than a ban on employees’ smoking outside of work, in which the goal is to lower company health-care costs. In considering goals it is easier to identify relatively noncontroversial positive goals such as productivity, health protection, and crime prevention than it is to assess their relative importance. It is often more difficult to identify questionable goals (e.g., DNA-based insurance exclusion based

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on future predictions), since by their very nature they are less likely to be publicized. Questionable goals may involve an effort to force an employer’s morality, politics, or opposition to unions onto employees, to circumvent established procedures; or it may involve an unreasonable quest for profit or strategic gain on the part of personal data-mongering entrepreneurs, illogic, or ignorance. The gray area here is large, even if cases at the extremes are clear. For example, is use of a pulmonary lung test to measure whether employees are not smoking (in conformity with a company’s nonsmoking policy) a necessary health and cost-saving measure good for both the company and the employee, or is it a wrongful crossing of the boundary between work and nonwork settings? We also need to be alert to the possibility that the publicly stated goals may mask other, less desirable goals. Even when that is not the case, moral worth must be sought in the consequences of use beyond the good intentions of those applying the technology. To help in assessing the “use” issue, the following questions need to be asked. Other factors being equal, the first response suggests an ethical use and the second an unethical use. 1. Appropriate versus inappropriate goals: Are the goals of the data collection legitimate? Are they publicly announced? Consider the following contrasting cases: drug-testing school bus drivers versus drugtesting junior high school students who wish to play in the school band; a doctor asking a female patient about her birth control and abortion history in a clinical setting versus a company asking this of all female employees (as one large airline did) without indicating why the information was needed; asking about the religious beliefs and practices of prospective clergy versus asking this of prospective factory workers; a polygraph examiner for a national defense agency using his knowledge of female job applicants to offer advice about hiring versus another examiner who additionally uses the extensive personal data collected to decide whom to date. 2. The goodness of fit between the means and the goal: Is there a clear link between the information sought and the goal to be achieved? How well a test measures what it claims to—drug and alcohol use, miles driven, or location—can be differentiated from second-order inferences made about goals only indirectly related to the actual results of the measurement. A measure can be valid without being effective. As we move from the direct results of a measure that is immediately meaningful given the goal (e.g., a drug test to determine whether a person has abided by the conditions of his or her parole) to more remote inferences about goals, questions may arise. For example, some research suggests that drug tests may not be associated with the

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employment performance behaviors they are presumed to predict. In that regard, a test for transportation workers that directly measures reflexes is preferable to a more inferential drug test. 3. Information used for original versus other unrelated purposes: Is the personal information used for the reasons offered for its collection and for which consent was given? Do the data stay with the original collector or do they migrate elsewhere? For example, the results of medical tests undertaken for diagnostic and treatment purposes may be sold or otherwise obtained by potential insurers, pharmaceutical companies, and employers, to be then used for their own goals. Using data for unrelated purposes may violate the individual’s expectations of full disclosure and data security. When information is used without permission for other purposes, we need to ask, “Was this done with prior planning by the original gatherers or by others who bought, found, stole, or deceptively obtained the data?” For the original collectors there is a responsibility both to keep their word and to protect confidentiality. 4. Failure to share gains from the information: Are the personal data collected used for profit without permission from or benefit to the person who provided them (or at least participated in their generation)? This implies a private-property defense of personal information and contrasts with a definition based on universal human or democratic citizenship rights. To sell another person’s information without asking him or her and without letting the supplier share in the gain might even be seen as a kind of theft. The issue of ownership of personal information raises novel copyright issues, such as those involving sale of information about a person’s purchases or a clone of the person’s cell structure. 5. Unfair harm or disadvantage: Is the information used in such a way as to cause unwarranted harm or disadvantage to its subject? There is of course much room for debate over whether these occur and whether they are warranted. Yet some major types can be identified and extreme examples are easy to find. (a) An unfair strategic disadvantage or advantage with respect to a situation in which there is a conflict of interest (e.g., a bugged car dealership waiting room that permits the seller to learn a customer’s concerns and maximum payment); (b) Unfairly restricting social participation, as in denying someone an apartment, insurance coverage, or employment based on information that is invalid, irrelevant, acontextual, or discriminatory (e.g., not hiring someone because their DNA suggests they have a better-than-average chance of developing a serious illness in the future, or not renting to someone because of the person’s ethnic background);

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(c) The unwarranted publication or release of personal information that causes embarrassment, shame, or otherwise puts a person in a negative light. The emphasis here is on the subjective harm the individual experiences as a result of the release of confidential information, apart from its validity.21 State laws that protect against the “tort” of privacy invasion apply here. Direct, tangible, material harm can more easily be determined than subjective harm involving embarrassment, shame, stigma, humiliation, and the creepy feeling of being invaded.22 (d) Betrayal of confidence. The failure to maintain confidentiality and security or to use information only as promised applies here. This can involve friends sharing information they shouldn’t, violations of professional confidentiality, a phone company revealing unlisted numbers through a service such as caller ID, or malicious acts (whether by data custodians or transgressors) such as informing persons that medical tests for HIV were positive when that wasn’t the case; (e) Intrusions into solitude. An important element of privacy is the right to be left alone in a busy world. The indiscriminate traffic in personal information may result in unwanted mass-marketing and other communications intrusions via telephone, mail, e-mail, or face-to-face solicitations; (f) Manipulation and/or propaganda appeals based on hand-tailored, very specific messages designed for narrow-casting, segmented marketing. Such messages may be more effective than general broadcasting aimed at an undifferentiated mass market. Consider a candy company’s mailing to diet workshop participants of a special discount offer. The issue here (and with a number of the other issues) is not whether data collectors and users have a legal right to such actions (they clearly do) but rather whether it is the right thing to do; (g) Use of communication resources without permission, such as sending unsolicited faxes, calling a cellular phone number (which requires the recipient to pay), and flooding an e-mail address with unwanted messages (“spamming”), which can disable a system.23

BUT WHERE IS THE NORMATIVE ARGUMENT? A reviewer of this article, perhaps coming from a background in academic philosophy, was critical because many of its conclusions about ethical behavior (however qualified) are not adequately grounded in a formal normative argument that offers justifications for the principles, indicates

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their logical implications, and leads to clear conclusions. Such an argument would anticipate and respond to likely objections and would be consistent across types of justification (e.g., it would not mix arguments based on categorical first principles with those based on empirical consequences, as is done here). Nice work if you can get it! While some philosophers may lust after a Rosetta stone of clear and consistent justifications, a central argument of this article is that in matters so complex and varied, we are better served by an imperfect compass than a detailed map. Such a map can lead to the erroneous conclusion that ethical directions can be easily reached or to a statement so far in the stratosphere that only angels can see and apply it. Maps of uncharted terrain are hard to come by. A chart of new territories needs to begin with simple coordinates and rough estimates. Given the variety of tactics for extracting personal information and the conditions under which they are applied, an ethics of surveillance must be very general. Categorical imperatives mandating prohibition or use based on a single overriding principle are difficult to defend. It is unrealistic to expect a general principle to apply equally in all contexts and across all technologies. But we can talk in relative terms and contrast tactics, situations, and uses as being more or less ethically acceptable depending on the interplay of the factors discussed. The questions asked here about the means, data collection, context, and use offer an ethical guide for assessing surveillance tactics. The more the principles implied in these questions are honored, the more ethical the situation is likely to be; conversely, the fewer of the principles respected, the less ethical the surveillance. I intend this additive approach as a sensitizing strategy and do not suggest that equal moral weight necessarily be given each factor, but I hope the principles do take into account the major ethical elements. There are no simple evaluative formulas for the varied and complex situations in which personal data are collected and used. Suggesting an ethics for a particular tactic such as computer databases or drug testing can be worthwhile in offering more focused guidelines, but it is also important not to ignore the commonalities or the broader social picture. Regardless of the tactic, asking the twenty-nine questions listed earlier in this chapter will hopefully yield better results than ignoring them. The twenty-nine questions summarize the argument of this essay. I think they should be asked when considering the ethics of any surveillance activity. They can help answer the question “Is it right or wrong?” While each of these questions implies broader normative justifications, I have not taken this discussion further (thanks to space and my own limitations) because the analytic distinctions and hypothesized empirical factors offered here are a necessary first step before a more formal ethics of surveillance is pos-

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sible, if it ever is. This essay is about the societal norms that I believe both do and should inform an ethics for surveillance. More systematic empirical research and a more rigorous and consistent set of arguments supporting or attacking the ones given are most welcome. Yet underlying these questions is a cluster of value justifications. The most overarching and important is the Kantian idea of respect for the dignity of the person. When the self can be technologically invaded without permission and even often without the knowledge of the person, dignity and liberty are diminished. Respect for the individual involves not causing harm; treating persons fairly through the use of universally applied, valid measures; offering meaningful choices; and avoiding manipulation and coercion. These in turn depend on being adequately informed. Viewing personal information as something to which the subject has a property right (not unlike a copyright) can be an independent justification, but allowing autonomy over the use of one’s information also shows respect for the person. Another major value is trust and its implications for community. When trust is violated through deception or the failure to honor agreements and implied contracts in data collection, the value of community is undermined.

TWILIGHT OR DAWN? New technologies require new cultural standards and public policies even as they offer wonderful possibilities. Yet they are also reminiscent of Franz Kafka’s short story “The Penal Colony,” in which a prison officer invents a sophisticated machine for punishing inmates. The story ends with the officer being killed by the machine he created. There is no guarantee that hard-won rights will stay won or be extended in the face of continual social and technical change, absent knowledge, wisdom, and vigilance. Former Supreme Court Justice William O. Douglas wrote that the Constitution and the Bill of Rights “guarantee to us all the rights to personal and spiritual self-fulfillment. But the guarantee is not self-executing. As nightfall does not come at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air—however slight—lest we become unwitting victims of the darkness” (Vrofsky, 1987). We are in such a time period now with respect to new information technologies. There is the possibility of becoming an even more stratified society based on unequal access to information in which individuals live in glass houses, while the external walls of large organizations are one-way mirrors. There is a significant (and perhaps growing) gap between the capabilities of the

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new surveillance technologies and current cultural, legal, and technical protections. Powerful social and psychological forces work against any easy assumptions that a decent society is self-perpetuating. The masthead of a black civil rights–era newspaper in Sunflower County, Mississippi, reads, “Freedom Is a Constant Struggle.” This heralds an important truth. There are no permanent victories in democratic society. As past and contemporary events of this century indicate, liberty is fragile. *** This essay extends a paper delivered at the 1996 University of Victoria conference on Visions of Privacy in the Twenty-First Century. It is part of a broader project based on the Jensen Lectures delivered at Duke University, which will eventually appear in Windows into the Soul: Surveillance and Society in an Age of High Technology. I am grateful to Hugo Bedau, Richard Leo, Helen Nissenbaum, Greg Ungar, Mary Vimoche, and Lois Weithom for their critical reading and suggestions. The paper was prepared while the author was a Fellow at the Center for Advanced Study in the Behavioral Sciences. I am grateful for financial support provided by the National Science Foundation.

NOTES 1. A more developed statement of the new surveillance and its expression in the maximum security society can be found in chapter 10 of Marx (1988). See also the discussions in Rule (1973), Foucault (1977), Laudon (1986), Clarke (1988), Lyon (1994, 1996), and Gandy (1993). 2. Bennett (1995). For related discussions see Flaherty (1989), Bennett (1992), Regan (1995), and Smith (1994). 3. Our discussion is based on conventional domestic settings in a democratic society for those with full adult citizenship rights. In situations of extreme crisis such as war, dealing with very different countries or cultures, or children, the ill, the incompetent, or those juridically denied certain rights such as prisoners, a different discussion is needed and the lines will be drawn differently in some ways. That, however, does not negate the value of the principles discussed here as ideals that should apply more broadly, other factors being equal. 4. There is an interesting conflict here between discriminate and indiscriminate use of a technique. Categorical application of a means such as drug testing to all employees (including managers) satisfies a value of equality and universalistic treatment. But given its invasive nature, it violates the principle behind the Fourth Amendment that there must be some reasonable grounds for suspicion before a personal border is crossed. 5. The fact that something is not bad does not necessarily make it good. The idea of doing good is implicit in calling for appropriate goals. But given the moral

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component of both means and ends, a good goal is never enough, any more than is a good means, apart from its use. 6. The issue of harm to a group rather than to an individual has received scant attention. As the idea of group versus individual rights gains increased prominence, we will no doubt see more attention to the former. One form is the damage to community that occurs when trust is violated. Another is the damage via stigmatization and discrimination that can affect a specific group if it is labeled as having a statistical tendency toward some undesirable outcome. Genetic testing is a case in point. 7. One must avoid the demonology and glorification involved in viewing data gatherers as invariably up to no good and surveillance subjects as helpless victims whose rights are always trampled. Yet given the tilted nature of the private-sector playing field in which powerful interests and organizations are relatively unopposed in emphasizing their rights to gather and use personal information rather than their duties, my emphasis is on creating an ethics that applies to those doing the surveillance. Yet it is also well to note that we all play multiple roles and rotate between being surveillants and surveilled, if hardly equally. 8. This becomes even stronger when the polygraph is applied in such a fashion as to intimidate, as recommended by some early instructional manuals. 9. For example, see Bok (1978). 10. Of course the concept of harm, whether in the collection or use of the data, can be made problematic: Should harm be measured objectively or subjectively, and how should we respond to individual and cultural differences in defining it? This warrants caution and reflection. However, it is a moral cop-out to use cultural relativism to deny that the definition of harm must never transcend varying group and individual definitions. In that regard, currently popular pay-for-level-of-privacy schemes must not be accepted uncritically. This broad imperative may conflict with that of choice. But what is life without interesting complications? 11. However, as Winner (1988) notes, there are conditions under which some technologies clearly have political and social and (by indirection) ethical implications. For example, the decision to use nuclear power will of necessity imply centralization and high levels of security. Enormous capital expenditures in the creation of a system will exert pressures to continue it. 12. Even then it is inconsistent: for example, in Delaware v. Prouse (1979), the Court held that warrant less searches of luggage on a train by sniffing dogs violated a reasonable expectation or privacy. But that was not the case with dogs sniffing luggage at airports (U.S. v. Place, 1983). 13. I use the method of analytic induction (Katz, 1983) in which one starts with empirical cases and asks if they can be coded within the categories. In this case I have drawn on examples gathered over the last decade and the useful compilations in Smith (1993, 1997) and Kennedy and Alderman (1995). In dealing with these more general organizing concepts, the key point is not whether any given story/ instance is factually correct (although that is vital for journalists or lawyers), but whether the concepts adequately capture the range of events. Sometimes the restriction is on the technology as such (as with parabolic mikes), and other times on the type of record (e.g., video rental but not book or medical records). In federal and most state jurisdictions secretly recording sound is a legal infringement, but a secret video recording is not, at least not yet. In the absence of an agency to anticipate and

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recommend policy changes (as is found in Canada and Europe) in response to new technologies, the most common pattern is one of invasive practices often followed by legislation. 14. Helen Nissenbaum (forthcoming) offers a useful conceptualization of this problem of privacy in public. 15. Failure to block this may make future visits to the site easier, but also makes possible the using of viewing behavior for marketing purposes and even invites the potential exploration or alteration of the contents of the hard drive. 16. In the former there may be no choice but to follow Arlo Guthrie’s words in “Alice’s Restaurant” to “walk in” and get “inspected, detected, infected, neglected, and selected”; this, of course, can be mischievously defined as choice. 17. For example, in an early Massachusetts computer-matching case, a list of those on welfare was compared to a list of those with more than $5,000 in the bank (the cutoff point for being on welfare). Those on both lists had their welfare payments automatically terminated with no further checking. Among cases inappropriately cut off were a woman whose money was legally held in trust to be used for her funeral expenses and a student who had temporarily deposited his student loan money in his mother’s account while waiting for school to start (Marx & Reichman, 1984). 18. In a related fashion, it might also be argued that the more expensive and difficult to use a technology is, the greater the disincentives to use it and the less frequent its use. From this perspective the real problems (at least quantitatively) begin when tactics become widely available (as with miniature voice- or motion-activated audio- or videotape recorders hidden in familiar objects). Yet given what we know about the temptation to abuse power, in the absence of this, one can hardly be optimistic about elite monopolization of a technology. 19. We have emphasized how surveillance may cause unjustified harm to the individual. We should also give some consideration to the reverse: the abuse or erroneous use of surveillance data that helps an undeserving individual. For example, a police chief in a small town (in an antisurveillance move) erased his son’s record of drunk driving from the computer. However, the latter is much less likely to come to public attention and seems to have less moral bite (that is, the cost of unfairly helping someone does not seem as great as unfairly hurting them). Of course in zero-sum situations these are related (altering data so that a less deserving person gets a job denied a more deserving person). But much of the time the harm is impersonal and the damage done is symbolic. It offends shared values. The social costs of having a bad driver on the road can be great but are likely to be more distanced, and not initially centered on harm to a particular person. 20. In simplified form, combining degree of importance for goals and risks/cost for means suggests four types. The moral implications of using a costly means for an unimportant or undesirable goal, or a noncostly means for an important goal, are clear. What is more difficult and interesting are cases where the goal is very important and the means very costly. 21. This could be greatly elaborated. Consider, for example, the harm from a pseudopersonalized mass mailing that begins by congratulating persons assumed to be parents on their child’s first birthday. The goal of the advertising is to sell them things a one-year-old now needs. The data has been purchased from health-care providers. How does a couple who had a miscarriage that is not reported feel when

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automatically receiving such solicitations? Such insensitive mailings (an actual case) can cause a particular kind of harm. Or consider a mass mailing to recently retired persons advising them of the advantages of cremation over burial. Certainly this is not an issue to run to the barricades over, but it does suggest the kind of subtle question of manners that the purchasers of databases ought to consider. 22. Here we need to separate embarrassment caused by an invalid result (e.g., having an alarm go off by mistake as one walks through a detection device in a store or library) from accurate results. But even the latter can be troubling if confidentiality is due and is not respected. One of the grounds for nonpublic figures’ suing for privacy invasion is being put in an unfavorable public light, even if the information reported is true. 23. Of course, if phone numbers or addresses are obtained by simply calling every possible number or mass mailings to occupant via regular mail, the situation is different. Under normal circumstances it is hard to imagine prohibiting mail or phone messages (although there could be various schemes to increase the cost to the sender of the communication, and technologies are available for screening). The recipient is certainly under no obligation to respond. This is also an issue of manners and evolving expectations (e.g., what appears to be a hesitancy on the part of marketers to call cell phones).

REFERENCES Bennett, C. 1992. Regulating Privacy: Data Protection and Public Policy in Europe and the United States. Ithaca, NY: Cornell University Press. ———. 1995. Implementing Privacy Codes of Practice: A Report to the Canadian Standards Association. Toronto: CSA. Bok, S. 1978. Lying: Moral Choice in Public and Private Life. New York: Pantheon. Chandler, R. 1957. The Big Sleep. New York: Random House. Clarke, R. 1988. “Information Technology and Dataveillance.” Communications of the ACM 31, 29–45. Delaware v. Prouse (1979). Flaherty, D. 1989. Protecting Privacy in Surveillance Societies. Chapel Hill: University of North Carolina Press. Foucault, M. 1977. Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan. New York: Pantheon. Gandy, O. 1993. The Panoptic Sort. Boulder, CO: Westview Press. Katz, J. 1983. “A Theory of Qualitative Methodology: The Social System of Analytic Fieldwork.” In Contemporary Field Research, edited by R. Emerson. Prospect Heights, IL: Waveland Press. Kennedy, C., and E. Alderman. 1995. The Right to Privacy. New York: Knopf. Laudon, K. 1986. The Dossier Society: Value Choices in the Design of National Information Systems. New York: Columbia University Press. Lyon, D. 1994. The Electronic Eye: The Rise of the Surveillance Society. Cambridge: Polity Press. ———. 1996. Computers, Surveillance and Privacy. Minneapolis: University of Minnesota Press.

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Marx, G. 1988. Undercover: Police Surveillance in America. Berkeley and Los Angeles: University of California Press. ———. 1994. “New Telecommunication Technologies Require New Manners.” Telecommunications Policy 18. Marx, G., and N. Reichman. 1984. “Routinizing the Discovery of Secrets: Computers as Informants.” American Behavioral Scientist 27, 423–52. Nissenbaum, H. 1997. “Toward an Approach to Privacy in Public: Challenges of Information Technology.” Ethics and Behavior 7, no. 3, 207–19. Olmstead v. United States, 277 U.S. 438 (1928). Radin, M. J. 1996. Reinterpreting Property. Chicago: University of Chicago Press. Regan, P. 1995. Legislating Privacy: Technology, Social Values, and Public Policy. Chapel Hill: University of North Carolina Press. Rule, J. 1973. Private Lives, Public Surveillance. London: Allen-Lane. Smith, J. 1994. Managing Privacy: Information Technology and Corporate America. Chapel Hill: University of North Carolina Press. Smith, R. E. 1993. War Stories. Volume 1. Providence, RI: Privacy Journal. ———. 1997. War Stories. Volume 2. Providence, RI: Privacy Journal. United States v. Place (1983). Vrofsky, M., ed. 1987. The Douglas Letters. Bethesda, MD: Adler and Adler. Winner, L. 1988. The Whale and the Reactor: A Search for Limits in an Age of High Technology. Chicago: University of Chicago Press.

8 Ethics and Intelligence after September 2001 Michael Herman

Perhaps there is no need to mix intelligence and ethics. The Times (London) took a strictly realist view some years ago that “Cold War or no Cold War, nations routinely spy on each other,” and the British Security Service’s official handout takes the view that “spying has been going on for centuries and as nations emerged they began spying on each other and will probably always do so.”1 Some would say that is all that need be said. 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; thus the British Joint Intelligence Committee is emphatically not a covert action committee. Yet, even as information gathering, intelligence carries an ethical baggage with it, or—to be more accurate—a baggage of unworthiness. This dates back at least two centuries, when Immanuel Kant condemned espionage as “intrinsically despicable” since it “exploits only the dishonesty of others,”2 and its modern version was illustrated in the judgment of two respected British academics in the 1990s that it was all “positively immoral,” apart “from certain extreme cases.”3 This baggage owes a lot to the visceral dislike of espionage and to intelligence’s role of internal surveillance, but the distaste ranges wider. David Kahn, the doyen of the history of code breaking, concluded that as an activity it is “surreptitious, snooping, sneaking . . . the very opposite of all that is best in mankind.” It was justified in defense, but “when a nation is not threatened, it is wrong for it to violate another’s dignity by clandestine prying into its messages.” Views are further confused by the media’s penchant for describing all intelligence collection as “spying,” producing a kind of guilt by association. Thus GCHQ, the British 103

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SIGINT center, is always described as “the Cheltenham spy center,” which it certainly is not. Recent events have given intelligence a more favorable image, but there is still a worldwide distrust of it, from liberal, anti-American, antiauthoritarian, and other standpoints. There is still some feeling that its activities are internationally improper, unbefitting, for example, the ethical dimension of foreign policy announced by the new British Labour Foreign Secretary in 1997. To at least a swathe of liberal opinion, there still is a much bigger question mark against it than for the general run of government service. So there is a real issue. Intelligence exists as a government institution and cannot be disinvented. But is it to be encouraged internationally, in the way governments accept the value of statistics, meteorology, epidemiology, and other knowledge specialties as important inputs to national and collective policy making? Are its practitioners members of a valued profession? Or is it like nuclear weapons, which most people dislike and seek to limit, even if they disagree about what else to do about them? It may be part of the international game, but is it a necessary evil to be discarded eventually for an intelligence-free world, or should it remain, perhaps with its rules improved? This essay outlines these issues as they seemed in the decade after the end of the Cold War and discusses how far the events of the new century have changed them. It limits itself to three of intelligence’s aspects. First, it bases itself on its roles and rationales: what is expected of it, not its historical record of successes and failures. Second, it treats it as the essentially national activity that it will remain as far as can be foreseen; it does not consider the scope for developing it as an international institution, building on precedents such as the blue-helmeted tactical intelligence units that have featured in some UN operations, and the U-2s and UAVs under UN control for UNSCOM and UNMOVIC. Third, it concentrates on the familiar English-speaking, to some extent “Western,” system and does not discuss others, such as Russian, Chinese, and Arabic intelligence; this is an ethnocentric treatment, but is all that can be done in the present state of intelligence studies. For intelligence within these parameters, then, what ethics can be held to apply?

WHAT ETHICS? Ethics fuse ideas of personal morality and social utility: on the one hand the dictates of good conscience, and on the other accepted standards (or ideals) of human intercourse and the social consequences if they are flouted. Cheating at cricket is condemned at one level because it is intrinsically dishonest, and at another because the game has no point if players do not

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play to common rules.4 States’ international activities are judged by similarly complex morality. The second element—the societal consequences— often predominates; thus the Argentine invasion of the Falklands was condemned internationally for trying to settle a dispute by force, as antisocial behavior in the modem society of states, even though not deeply offensive in purely humanitarian terms. Yet states’ actions are also regularly judged by a deeper morality than rules of a game. In an extreme case, the bombing of Dresden is criticized (rightly or wrongly) for its inhumanity, irrespective of law, custom, and precedent. At a more prosaic level, states’ international reputations include ethical-like judgments of reliability and consistency or duplicity and untrustworthiness. International law draws on both these elements, though often partially and imperfectly. It legalizes some things, prohibits others, and says nothing about others. Nothing is prohibited for intelligence by the laws of war, except the torture of prisoners. A similar lacuna applies over most peacetime information gathering; states have no inherent rights of privacy against other states. Some peacetime collection has been palpably illegal, such as the violations of Soviet airspace and territorial waters in some Western operations, but the illegality was in the collectors’ presence and not their intelligence purpose. Nevertheless, there are some traces of a legal recognition of information gathering as an activity. The Law of the Sea excludes information gathering as a purpose covered by legal rights of innocent passage through territorial waters.5 The International Telecommunication Union Convention of 1973 provided for the secrecy of international communications, though the small print left governments with escape clauses.6 The 1961 Vienna Convention specified diplomacy’s purpose of collecting information by lawful means, but left these tantalizingly unexplained. The U.S.-Soviet SALT and ABM agreements of the 1970s and a succession of more recent and wider agreements, notably the Comprehensive Nuclear-Test Ban Treaty, recognized National Technical Means (the euphemism for technical intelligence collection) for verifying arms control, provided that the (undefined) “recognised principles of international law” applied to their operation. And its customary element—“that informal, unwritten body of rules derived from the practice and opinions of States,”7—is developed aspirational and normative directions. This essay does not seek to unpick these various constituents of international legitimacy.8 Its main emphasis is on intelligence’s observable international effects—in crude terms, whether it is good or bad for international society, using the commonsense yardsticks whether it promotes or discourages responsible government behavior, good interstate relationships, the minimization of tension, cooperation for internationally valuable purposes, and the avoidance of war.9 But this “consequentialist” approach

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does not exclude the more absolute views of Kant and his successors. “Moral conduct means acting within a constraining framework of principles that are independent of consequential considerations.”10 Legitimacy with any real force “embodies rules, values, and shared purposes that create some sense of felt obligation.”11 Nor can the hints of international law be ignored altogether. The three elements make up the elements of the ethical balance sheet attempted here.

THE TWENTIETH-CENTURY POSITION Intelligence up to the end of the twentieth century was then, as it still is, a dyad of two overlapping functions: collecting and producing information by special means, and acting as government’s expert on its own particular subjects, drawing on overt as well as covert sources. In both functions it has been characterized as “telling truth to power.” The idea of truth in any absolute sense is open to argument, but crediting intelligence with a professional ethos of truthfulness—or at least attempting it—is less controversial. On that basis I argued some years ago that intelligence did not raise firstorder ethical questions akin to those of war and peace, but that it did raise some. At that time I put forward three propositions that bore on them.12 First, governments drawing on a professional standard of intelligence knowledge tended to behave as more responsible members of international society than those that had to manage without it, or chose to do so—less ignorant, less insensitive, and (I would now add of democratic states) less impetuous.13 This was a general effect, though specific cases could also be adduced in which intelligence had been deliberately used to underpin specific stability-producing conflict reduction arrangements, as in arms control or some of the U.S. mediation efforts in the Middle East and south Asia. There was indeed a contrary line or argument that criticized intelligence as an institutionally distorting prism, with vested interests in “worst case” views of the world or in reinforcing governments’ preconceptions, but it seemed that the historical record of Western intelligence did not bear this out in any consistent way. Intelligence is liable to be wrong, but it underestimates threats as often as it exaggerates them. Second, much of intelligence’s information gathering still followed the well-established pattern of targeting other states. By and large this caused no observable problems for interstate relations. Just occasionally, indeed, the United States and the Soviet Union accepted and cooperated with the other’s intelligence collection against them as a means of verifying arms control.14 But some of the intelligence collection was particularly intrusive and could be perceived as a mark of hostility, reinforcing its target’s perceptions of threat or tension. Examples from the Cold War were Western overflights

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of the Soviet Union, the position of diplomats and embassies in providing cover for covert collection (and also as the targets of intelligence operations directed against them), and above all the sheer scale of Russian espionage. Even outside a context of threats, intrusive collection of these kinds implied disrespect for the target governments, an international equivalent of a twofingered gesture. [Editor’s note: In the UK, the “two-finger gesture” (a V with the index and middle finger, with the palm facing inward) is equivalent in the United States to the extension of the middle finger.] None of this had ceased with the end of the Cold War. Russia and the West moved toward better relationships, yet more espionage cases between them seemed to hit the headlines than before. It was difficult not to believe that intrusive collection, when detected or suspected, was an obstacle to close relations and collaboration between states, even if it was not one of the major ones. Third, however, a newer category of collection had expanded after the end of the Cold War, directed not at what the nineteenth century would have called other “civilized” states, but at an increasing number of different targets: nonstate and quasi-state entities of many kinds, including terrorist organizations; the varied actors involved in situations of breakdown and suffering, typically wars within states rather than between them; and the so-called rogue states, outside the pale as far as the main club of states was concerned. Targeting of this kind did nothing to produce friction among the civilized state community, and indeed usually supported international collaboration between them in good causes. So intelligence knowledge got good ethical marks, but the effects of its collection were variable. Some of it, against other states, could still be seen as producing its own version of the security dilemma. What intelligence was produced reduced irresponsible and ignorant national behavior and on balance made the world better, but some of the activities producing it made the world marginally worse. So before September 2001 there already seemed scope for developing an intelligence variant of medieval just-war doctrine for such activities. By extension, the criteria of restraint, necessity, and proportionality might be applicable to intrusive interstate collection as it applies to the violence of war.15 At the same time, however, the extension to the newer, post–Cold War nonstate and pariah-type targets pointed in a different direction. Absolutists might still have reservations about some of the methods used, but consequentialists judging observable effects could feel there need be no inhibitions about their effects on international society; indeed quite the reverse, where considerations of international security and humanitarianism were among the motives. My sympathy was with the view that on such targets and in such circumstances, almost any methods of collection were justified, short of gross violations of human rights.16 The scope for “just intelligence” seemed quite wide.

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Of course this was a simplification. The newer, post–Cold War targets were only new in scale and not in kind; collection against terrorism dated back at least thirty years. As for the purposes served by targeting them, no causes are unambiguously good or have universal international support. International society is itself not just a well-defined club of respectable states, with clear divisions between them and other targets outside it. The difference between intrusive and nonintrusive collection is equally a matter of degree; the seriousness of intrusion is in the eye of those intruded upon, as in the way the French and European parliaments worried greatly before September 2001 about the English-speaking countries’ ECHELON system for collecting international communications, despite the fact that its big dishes pointed into the heavens and were not pointed at any particular group of states. There were no general criteria of acceptability and unacceptability.17 Nevertheless, distinctions could reasonably be drawn between the three effects: those of intelligence knowledge, intrusive collection on respectable states (in the extreme case, “spying on friends”), and collection against the other, newer targets, including support of counterterrorism and other international good causes. How far have they now been modified by the events of 2001 and 2002?

CHANGED STATUS The main change has been the dramatic increase in intelligence’s own importance after September 11, 2001. A trend in that direction had begun earlier; after intelligence budgets had been reduced as part of the peace dividend at the end of the Cold War, they were already being restored to cope not only with terrorism but also with the requirements of the 1990s for support of multilateral and international peace enforcement and humanitarian operations, and for intelligence on WMD proliferation, sanctions evasion, drug trafficking, and the other emerging targets of the decade. Governments were already adapting themselves to what seemed an increasingly unstable world and to the information revolution within it, both in the information available and in governments’ ability to collect and process it. Intelligence as a whole was growing again and was no longer quite such a deniable activity. Nevertheless, before September 11 it was still not seen as a defense against an overarching and common threat. The Western military interventions of the 1990s had been interventions by choice, and international terrorism and other threats were still seen as peripheral ones, slightly remote. Terrorists struck at U.S. citizens overseas, but not at home. I could argue that intelligence would become increasingly variegated, flexible, and op-

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portunistic. In terms of Britain’s survival it is now less vital than during the Cold War, but probably more useful; British intelligence’s national importance therefore needs to be judged mainly in rather general contexts: public assumptions about foreign policy and defense, long-standing expectations of intelligence as a strong card in government’s hand, and the links between intelligence and the transatlantic political relationship.18 The events of September 11 and what followed radically altered this position. As in the Cold War, intelligence’s main target has become once again a major and widely shared threat—except it is now actual, not potential. In the Cold War, intelligence was helping governments to avoid war; now it is actively involved in fighting one, seeking to save lives and defend national security, in the most literal sense, in an asymmetrical contest whose nature gives it a special importance. Whatever reservations were expressed about the U.S. declaration of a “war on terror,” the wartime metaphor fits intelligence’s current status rather well. Apparently reliable reports in January 2003 that since September 11, 2001, one hundred terrorist attacks have been thwarted worldwide and three thousand suspects detained in one hundred countries (including Britain) leave little doubt about its seriousness.19 The current prominence of Iraq and North Korea has reinforced the effect. Major decisions now seem to turn particularly on what intelligence is able to discover on the intentions and capabilities of highly secretive targets. So its budgets are increasing everywhere, and hardly a day passes without its appearance in the news. Former president George W. Bush mentioned it eighteen times in his National Security Strategy of 20 September 2002, almost as frequently as military power and more than twice as often as diplomacy.20 Former prime minister Tony Blair waxed eloquently about intelligence in January 2003; it was “Britain’s first line of defense against terrorism.”21 Most Western countries have amended existing legislation to give it greater scope and reduced restrictions. Intelligence is confirmed as a major attribute of national soft (or semi-soft) power.22 All nations except the smallest in the world’s nearly two hundred states will soon develop its institutions if they do not have them already. The UN Security Council’s Resolution 1373 on terrorism mandated exchanges on it; the first mandate of this kind.23 All this has given intelligence some new legitimacy, though this by no means is unambiguous. The UN mandate is still for “information exchanges” and not intelligence. Events have also had two other related effects. One is to reemphasize the importance of covert collection and the secrecy needed to protect it. In the years after the Cold War ended, commentators could argue that in an increasingly open world, intelligence’s emphasis would shift away from collection and toward analysis: there would be more emphasis on “intelligence-as-information,” drawing on more open source material, and

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less on “intelligence-as-secrets.”24 On this view a liberal could expect that intelligence would become rather less mysterious and “special,” and eventually rather more like a normal information service such as government statistics: more open and unspectacular, and attracting less media curiosity and hype. This now seems very dated. By the end of the 1990s the pendulum was already swinging back some way toward the older view. Operations in the former Yugoslavia had demonstrated the importance of secret collection, even in situations with media coverage. Now, as in the Cold War, intelligence’s main obstacle is the secrecy of intensely difficult targets. Analysis remains important everywhere. But counterterrorism puts a renewed emphasis on intrusive collection—particularly the human agent, but also eavesdropping on national and international communications accompanied by rapid investigation and operational use. Dame Stella Rimington’s claim in 1994 that the security forces in Northern Ireland were by then frustrating four out of every five attempted terrorist attacks had earlier illustrated the cumulative but unspectacular significance of successful preemptive warning.25 As in any war, intelligence’s value in a counterterrorist campaign is sometimes less to high-level decision making than in nittygritty tactical use. Intelligence as a whole is again “special,” secret, an object of great public curiosity: all characteristics that a few years earlier could be felt to be on the wane. The other, apparently contradictory effect has been to make it at the same time more international. In itself this was also nothing new. Even before September 11, the CIA already had liaisons with some four hundred foreign intelligence, security, and police organizations.26 By comparison, the Russian FSB (the internal security part of the old KGB) was similarly claiming to have “around 80 missions representing the special services of 56 countries” working permanently in Moscow, and formal agreements with “40 foreign partners in 33 countries.”27 Up to UNSCOM’s withdrawal in 1998, up to twenty nations are said to have passed information to it on Iraqi sanctions busting and weapons development. But September 11 brought a great boost to this “internationalization.” Despite being an intelligence superpower, the United States cannot meet all its counterterrorist requirements itself. Almost every nation is able to supply some unique intelligence on global terrorism from its local records and local human and technical sources. The United States accordingly developed a set of new or deeper counterterrorist relationships, and Britain followed suit. The Blair-Putin statement after their meeting of 20–21 December 2001 confirmed that “co-operation on intelligence matters has been unprecedentedly close” and announced an Anglo-Russian agreement to set up a new “joint group to share intelligence.” The Security Service, necessarily the most domestically oriented of the British agencies, had more

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than one hundred links with foreign intelligence and security services in 2002.28 In the United States the presidential message of September 2002 formally confirmed the objective of coordinating closely with allies for common assessment of the most dangerous threats. This internationalization has not been completely centered on the U.S. hub or the English-speaking communities. The European Union for its part developed its “antiterrorist roadmap” for European action, including common measures for improving databases on individuals, making more information available from public electronic communications, and the establishment of a new group of heads of security and intelligence agencies to meet regularly.29 There have been similar regional agreements elsewhere. Thus in Southeast Asia the Philippines, Cambodia, Indonesia, Malaysia, and Thailand have signed antiterrorist agreements, most recently under the influence of the Bali atrocity.30 In the United Nations, the new British-chaired Counter-Terrorism Committee initially declared one of its aims to be “to establish a network of information-sharing and cooperative action.”31 Of course, U.S. influence predominates, and its intelligence community is no doubt influenced by the conflicting tugs in all U.S. policy making between unilateralism and multilateralism. But intelligence is one subject on which the United States needs some foreign help, and this will tend to underpin the worldwide trend, which seems to be toward increased intelligence collaboration, sometimes between unlikely allies—including the former Cold War antagonists. Equally striking have been the public demands of the chief of UNMOVIC in the winter of 2002–2003 for more national intelligence input to the Commission’s investigation of Saddam Hussein’s WMD program, demands on behalf of the United Nations that earlier would have been put very discreetly or not at all. This is all a considerable shift. Despite all its bilateral and multilateral foreign liaisons, intelligence was previously regarded as still an essentially separate, eremitic national activity. It is now becoming an increasingly important international network in its own right in the world of ever-growing intergovernmental cooperation. The effect on its ethical balance sheet is twofold. It narrows the area to which the security dilemma applies yet simultaneously sharpens the dilemma where it does.

ANYTHING GOES? The last two years [article published in 2004] have increased the credit balance for intelligence knowledge. Its recent importance is obvious enough in the general run of world events, particularly over Iraq, and above all there is its wartime-like importance in counterterrorism. Events are also emphasizing the importance of professional qualities throughout its whole process

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of collection, evaluation, assessment, and distribution. At a national level, both the CIA and British agencies seem to have acted as governments’ consciences over Iraq. The CIA has kept a low profile in the divisions between hawks and doves in the U.S. administration, but there have been some press reports of its protests over exaggerations at policy level over the evidence of Iraqi contacts with al-Qaeda.32 In Britain, whatever misjudgments intelligence may have made, even those most opposed to action against Saddam Hussein have not suggested that it has willfully tailored its product to fit government policy. This importance of standards spreads well beyond the English-speaking communities and applies to intelligence’s internationalization. The era of increased intergovernmental cooperation increases the need not only for intelligence exchange but also for professionalism in handling it. Exchanges of information for international action are of only limited value without some corresponding international growth of depoliticization and the pursuit of truthfulness in producing and interpreting them. This importance of knowledge and standards might seem to increase the dilemma of results versus collection methods, yet in one way its scale is reducing. More intelligence is now targeted for objectives shared by the “civilized” international community, and not on the community itself. On international terrorism alone, the British SIGINT organization—by far the largest of the national agencies—was officially stated to be devoting 30 to 40 percent of its total effort to the post–September 11 crisis, and it would be surprising if this has subsequently decreased greatly; and to this should be added all the (relatively) newer targets discussed earlier, such as counterproliferation and the pariah states, outside the “respectable” parts of the international system. To conclude that literally “anything goes” on such targets may still be an exaggeration. As Sir Michael Quinlan pointed out some years ago, covert collection carries some moral debits even in good causes. Secrecy fits awkwardly into the accountability of open democracies, and intelligence has now become more secret again. More international cooperation on terrorism means consorting with politically dubious foreign bedfellows. Espionage may involve normally reprehensible activities or associations (though its agents may equally be motivated by high principles). Nevertheless, on collection against this class of target the events of the last two years [article published in 2004] have tipped the balance further against substantial ethical restraints, such as those on whose account the U.S. Executive, Congress, and media are said to have knocked the stuffing out of CIA’s HUMINT in the 1990s. If the wartime metaphor fits counterterrorism, it implies relatively few moral restrictions on information gathering on its targets. To repeat the opening of this paper: Information gathering is not action to which separate ethical criteria must be applied.

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SPYING ON FRIENDS? Yet on some other targets the last two years have at the same time sharpened the ethical dilemma. If intrusive “spying on friends” formerly increased the problems of interstate friction in a rather general way, now it also poses particular difficulties for the increased international collaboration now developing. Even if terrorism took up 30 to 40 percent of GCHQ’s effort after September 11 and the other, “newer” targeting was substantial, sizable resources were still presumably devoted to the older-style coverage of other states, excluding the pariahs—and probably still are. Relatively few of these states are actually “friends”; most interstate relationships are somewhere on a long scale between the extremes of friendship and enmity, and have conflicting elements anyway. But the likelihood remains that despite the growth of international consultation and collaboration on common causes, significant intelligence is still collected to defend or advance purely national interests—for example, helping governments to get the best deal they can in the welter of trade, economic, financial, and other negotiations that make up international society’s daily substance. Some of this intelligence—perhaps not a large part—is produced by means the targets would consider to be intrusive. Can this targeting really be squared with the governments’ simultaneously seeking closer intelligence collaboration in common causes? Governments’ increasing transparency gives additional force to this old dilemma. Covert collection does not upset anyone if it remains truly covert, but it is now harder than it used to be for governments anywhere to keep secrets for long; most of them leak out sooner or later. And democratic foreign policies are now more influenced than formerly by mass opinion formers who react strongly to finding spies under the national bed—more strongly than the worldly wise diplomats who previously accepted intrusive intelligence as part of the game, provided as little was said about it as possible. Modern democracies are easily insulted, even if not significantly threatened, and do not take easily to hushing up the detection of foreign spies. They have correspondingly tender consciences about their own methods, and demand a corresponding Caesar’s wifelike standard over their own governments’ clean hands and international legality. It still cannot be proved that revelations of “spying” (in its extended popular sense) really matter. The cases in Moscow and Washington in the 1990s and the related expulsions of diplomats did not prevent a gradual development of U.S.-Russian understanding; no one can judge whether they delayed it. It has recently been claimed that the CIA used its Russian opposition numbers to plant devices to detect emissions from the North Korean nuclear weapons program sometime in the 1990s,33 so it may be that intelligence cooperation can continue to coexist with spying on each

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other. But this is to be doubted in the long term. It is difficult to believe that the extended Anglo-Russian intelligence exchanges announced in December 2001 would survive a cause célèbre connected with a large, undeclared Russian intelligence presence in the London embassy, or vice versa. So intelligence as a booming world institution still has a doubtful reputation. If it were a multinational corporation it might ask, “Do we need to clean up our act?” But it would be too much to ask any state to engage again in the kind of unilateral disarmament that the U.S. Secretary of State undertook to close the American code-breaking “Black Chamber” in 1929 with the feeling that “gentlemen don’t read each other’s mail.”34 Neither is the United Nations likely to endorse any covert collection methods, even for the information whose exchanges on terrorism it mandates. The ethical dilemma over intelligence of this kind can be reduced only by intergovernmental reciprocity.

CUSTOMS AND UNDERSTANDINGS This would not be breaking completely new ground. Collection has not been conducted against other states in peacetime in a spirit of short-term realism; there has often been some restraint. This has been neither strong nor widespread enough to be a recognized international norm, assuming that a norm is rather stronger and more widely shared than an attitude.35 But intelligence’s networks of liaisons and alliances have had the result that some countries do not conduct operations of any kind against each other. The Britain–United States–Old Commonwealth community is the normally quoted example, but there may be other areas of tacit abstention: some or all of the Scandinavian countries, for example. Israeli intelligence was reputed not to collect against the U.S. government until the disastrous Pollard case in the 1980s. Close intelligence liaisons do not necessarily rule out all mutual targeting, but probably limit the use of the most potentially embarrassing methods. But understandings about restraint are tacit or tightly held. The only recent public declaration was the agreement, made shortly after the breakup of the Soviet Union, between Russia and the new Confederation of Independent States around it to forswear operations against each other. There must be doubts whether its effect was ever more than cosmetic. Some restraint has also been exercised against adversaries. The British overflights of the Soviet Union were conducted in the first half of the 1950s because President Dwight D. Eisenhower was not prepared to authorize the U.S. Air Force to mount them. Subsequently the position was reversed when Anthony Eden refused authorization for such operations, including American U-2 flights from British bases. British peripheral flights around

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the Soviet Union, though entirely legal, remained subject to ministerial approval throughout the Cold War, as were more genuinely covert collection operations. All depended on the circumstances of particular cases, including the risk of being found out. But at least in the West there was some recognition of intelligence’s provocative quality, perhaps entwined with considerations of governments’ international and national images and older ideas of national “honor.” It would be interesting to know whether the authors of the new British government’s 1997 foreign policy statement had intelligence in mind when including “respect for other states” as a principle, returning full circle to Kant’s principles of international morality.36 In the decade after the end of the Cold War there were some indications of tentative moves toward restraint, perhaps in reaction to the spy cases of the period. Russia was reported to have pressed the UN Secretary General in 1998 for an international treaty banning information warfare.37 A Russian spokesman had denied in 1996 that there were any agreements with the United States about high-level penetration agents,38 but the possibility of mutual U.S. and Russian reductions was raised, apparently from the U.S. side, in July 1999 in Washington discussions between the U.S. vice president and the Russian prime minister of the day, and remitted for further examination.39 Reducing the scale of Russian espionage in Britain was said similarly to have been raised by Tony Blair with Vladimir Putin at a one-onone meeting in March 2001.40 The idea of “intelligence arms control” had had some slight airing before September 11, 2001. Now it has additional relevance. Not only is there the increased need for closer intelligence collaboration, but there are also the practical resource issues raised by the scale of counterterrorism and the other, newer requirements. Ever since the end of the Cold War, “intelligence arms control” would have been of mutual benefit to Russia and the United States, both intensely concerned at the threat of foreign espionage; it would also have benefited Britain, though London has in practice seemed rather less anxious about foreign espionage threats. Now the benefit would be even greater, freeing intelligence resources for deployment on counterterrorism instead of mutual espionage and all the defensive counterintelligence and counterespionage it necessitates. Smaller intelligence powers might also be influenced by the example of restraint in interstate targeting by larger ones. The only actual pointer in this direction has been Putin’s announcement in late 2001 of his intention to close the large Russian interception station on Cuba, long a source of congressional opposition to closer U.S.-Russian relations, as well as the similar station at Cam Rahn in Vietnam. The announcement was welcomed at the time by Bush as “taking down relics of the Cold War and building a new, cooperative and transparent relationship for the twenty-first century,”41 though there has been no obvious reciprocity.42 It might be significant that in December 2001 the annual Russian end-of-year

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summary of detected espionage cases pointed less than on previous occasions to U.S. and British complicity.43 On the other hand, a British media article in late 2002 claimed that “Russia was engaged in a massive expansion of espionage in Europe and North America” and that the Russian intelligence presence in the London embassy had increased from one (in 1991) to thirtythree.44 So intelligence restraint may not yet be on the international agenda, though it is unlikely to be publicized even if it ever is.

A NEW INTELLIGENCE PARADIGM? Perhaps what is needed is a new paradigm. Intelligence’s place has been determined historically by ideas of national sovereignty, threats, and interstate competition. Despite alliances and exchanges, one state’s gain in knowledge has been seen basically as another’s defeat in information protection. Yet September 11 and the counterterrorist campaign join with other events of recent years to produce a mood for new ideas. Intelligence could no longer be seen as primarily an element in states’ competition with others, but as a means of cooperation for shared objectives against common targets: a legitimized activity, with some recognized international standards similar to those of other professions, such as law enforcement. Michael MccGwire has written of the possibility of a “paradigm shift” in the concept of national security, taking a paradigm to be “the mixture of beliefs, theory, preconceptions and prejudices that shapes ideas of how the international system works, generates expectations and prescribes appropriate behaviour,” and argues for an international rather than a national view of security.45 A revision of the mental framework for intelligence might be part of some much larger process of that kind.46 This may seem pie-in-the-sky, yet states can change their working assumptions radically. In the nineteenth century the Red Cross owed its development to a private initiative that caught on and moved governments;47 and the Hague Conference of 1899 and its contributions to the laws of war originated in an unexpected initiative from the czar, possibly from reading a book on future war.48 Sir Michael Howard reminded us before 2001 that until the eighteenth-century enlightenment, war between states “remained an almost automatic activity, part of the natural order of things.”49 “If anyone could be said to have invented peace as more than a mere pious aspiration, it was Kant.”50 The changing view of military power provides another analogy. Armies are still national, but John Keegan argued in 1998 that democracy’s professional soldiers are now also international society’s check upon violence: “those honourable warriors who administer force in the cause of peace.”51 Mutatis mutandis, the twenty-first century may bring us to see intelligence in that light.

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So intelligence’s ethics are at least worth consideration. They are not international society’s greatest problem. The ethical issues they pose are seconddivision and not first-division ones. Yet events have confirmed intelligence everywhere as a major national attribute, and an increasingly significant factor in international relations amid the information revolution of which it is part. It cannot now be handled entirely in a mood of old-fashioned realism, and indeed never has been. The idea of ethical foreign policy got bad press when given political salience in Britain in 1997, but it was in reality a statement of the obvious. Intelligence has to fit into the ethics of an increasingly cooperative system of states, perhaps with bigger changes in thinking than have previously seemed possible. I hope that there will be opportunities for practitioners and academics to join together to explore a concept of “ethical intelligence” and where its implications point. *** I am grateful to Sir Michael Quinlan and Toni Erskine for their comments on earlier drafts of this paper.

NOTES 1. MI5: The Security Service, 4th ed. (London: Stationery Office, 2002), 15. It shows 14.4 percent of the service’s resources as allocated to counterespionage. 2. H. Reiss, Kant: Political Writings, trans. H. B. Nisbet (Cambridge: Cambridge University Press, 1991), 96–97. 3. L. Lustgarten and I. Leigh, In from the Cold: National Security and Parliamentary Democracy (Oxford: Clarendon Press, 1994), 225. This work concentrates on intelligence’s domestic aspects, but incidentally provides ethical criticism of foreign intelligence. 4. Cricket in fact has “laws,” which interestingly have traditionally included observing the “spirit of the game” and in recent years have attempted to codify it. 5. The relevant law on maritime collection is United Nations Convention on the Law of the Sea 1982, articles 19 and 29. “Innocent passage” excludes “collecting information to the prejudice of the defence or security of the coastal state” (19.2 [c]). 6. Details in the author’s Intelligence Power in Peace and War (Cambridge: Cambridge University Press, 1996), 89. 7. Michael Byers, “Terrorism, the Use of Force and International Law after 11 September,” International Relations 16, no. 2 (August 2002). 8. For modem legitimacy, see Andrew Hurrell, “‘There Are No Rules’ (George W. Bush): International Order after September 11,” International Relations 16 (August 2002). 9. For the idea of international society I draw on David Armstrong, “Globalization and the Social State,” Review of International Studies 24 (October 1998). 10. Terry Nardin, “International Pluralism and the Rule of Law,” Review of International Studies 26, Special Issue (December 2000): 100.

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11. Hurrell, “There Are No Rules,” 189. 12. Set out in M. Herman, Intelligence Services in the Information Age: Theory and Practice (London: Frank Cass, 2001), chap. 13. 13. It has recently been argued that decision makers have varied attitudes to risks that produce different but equally “rational” decisions over possible gains and losses; in situations of equal uncertainly, some are risk averse and others risk acceptant (Barry O’Neill, “Risk Aversion in International Relations Theory,” International Studies Quarterly 45, no. 4 [December 2001]). But intelligence’s role is to provide both classes with accurate calibrations of uncertainty and risk. 14. This has continued. “On 24 August 2001 the last 450 U.S. Minuteman missile silos earmarked for destruction under SALT I were destroyed. The detonation of explosives turns the silos into 90-foot craters, which are then filled with rubble, capped and left for 90 days to allow Russian satellites to verify their elimination” (Vertic, Trust and Verify 100 [January–February 2002]). 15. For the idea of “just intelligence,” see Michael Quinlan, “The Future of Covert Intelligence” and M. Herman, “Modern Intelligence Services: Have They a Place in Ethical Foreign Policies?” both in Agents for Change: Intelligence Services in the 21st Century, ed. Harold Shukman (London: St. Ermin’s Press, 2000), 68, 307–8. But note that just-war theory starts from the premise that war is quite special in the ethical problems its raises. 16. Set out, for example, in Herman, Intelligence Services in the Information Age, 211–12. 17. But there are sometimes tacit yardsticks of what is acceptable and unacceptable even between antagonists. During the Cold War the Russian commander of the Soviet Forces in East Germany protested that the British Military Mission had gone too far; one collection operation had gone beyond recognized razvedka (reconnaissance) to an unacceptable degree of shpionazh (espionage). I am grateful to Colonel Roy Giles for this example. 18. M. Herman, British Intelligence towards the Millennium (London: Centre for Defence Studies, 1997), 64–65. 19. Richard A. Serrano and Greg Miller, “100 Terrorist Attacks Thwarted, U.S. Says,” Los Angeles Times, 11 January 2003. 20. There were twenty-three references to military forces, and seven to diplomacy. 21. Address to House of Commons Liaison Committee, 21 January 2003. 22. Compare Nye’s definition of soft power as the ability “to get others to want what you want” (Joseph Nye, “The New Rome Meets the New Barbarians,” Economist, 23 March 2002). 23. The UN Security Council in that resolution decided that “all states shall . . . take the necessary steps to prevent the commission of terrorist acts, including by provision of early warning to other States by exchange of information” (2[b]). Various parts of item 3 “called upon” states to exchange terrorist information to prevent the commission of terrorist acts. 24. Gregory F. Treverton, Reshaping National Intelligence for an Age of Information (Cambridge: Cambridge University Press, 2001), passim. 25. S. Rimington, Security and Democracy, Richard Dimbleby Lecture (London: BBC Educational Developments, 1994), 9.

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26. Treverton, Reshaping National Intelligence, 137. 27. Article by FSB director N. Patrushey, Russian National Information Service, 20 December 2001. 28. MI5: The Security Service, 26. 29. Summary in Statewatch 11, no. 5 (August–October 2001). 30. Details from Straits Times, 16 January 2003. 31. Sir Jeremy Greenstock (chair), press conference, 19 October 2001, http:// www.un.org/Docs/sc/committees/1372. 32. Guardian (Manchester), 10 October 2002. 33. James Risen, New York Times, 20 January 2003. This was, however, denied by a spokesman for the Russian SVR the following day. 34. Note, however, that the actual words were the speaker’s rationalization seventeen years later: see correspondence in Intelligence and National Security 2, no. 4 (October 1987). 35. But norms do not have to be universally accepted. For discussion see Vaughn P. Shannon, “Norms Are What States Make of Them: The Political Psychology of Norm Violation,” International Studies Quarterly 44, no. 2 (June 2000), especially 294–96. 36. Nardin, “International Pluralism and the Rule of Law,” 97 n. 37. Sunday Times (London), 25 July 1999, 21. 38. Nezavisimaya Gazeta, 22 November 1996. 39. Russian accounts of the press conference refer to “total mutual understanding” having been reached on “one sensitive topic,” and existing agreements “to work in a fairly correct sort of way” (FBIS and BBC translations of 28 and 29 July 1999 items). 40. Sunday Times (London), 25 March 2001. 41. Details from the Association of Former Intelligence Officers Weekly Notes, October 2001, http://www.afio.comlscctions/wins. 42. The Russian Foreign Ministry suggested that the United States should close down “the radar station in Vardoe (Norway)” (Gordon Bennett, Vladimir Putin and Russia’s Special Services [Sandhurst, UK: Conflict Studies Research Centre 2002], 69). 43. Ibid., 24. 44. Jane’s Intelligence Review, 3 December 2002. 45. Michael MccGwire, “The Paradigm That Lost Its Way” and “Shifting the Paradigm,” International Affairs 77, no. 4 (2001), and 78, no. 1 (2002). The quotation is from the first, p. 649. 46. A changed framework for intelligence would involve changes for covert action on similar lines. 47. Pam Brown, Henry Dunant: The Founder of the Red Cross (Watford, UK: Exley, 1988). 48. Geoffrey Best, “Peace Conferences and the Century of Total War: The 1899 Hague Conference and What Came After,” International Affairs 75, no. 3 (July 1999): 622. 49. M. Howard, The Invention of Peace: Reflections on War and International Order (London: Profile Books, 2000), 13. 50. Ibid., 31. 51. Concluding words in J. Keegan, War and Our World (London: Hutchinson, 1998), 74.

9 “As Rays of Light to the Human Soul”? Moral Agents and Intelligence Gathering Toni Erskine

Calls to evaluate ethically the practices of intelligence collection have been prompted by debate over the decision to go to war in Iraq and by consideration of how best to respond to terrorist threats. Recently, they have been bolstered by allegations of prisoner abuse that some have linked to intelligence organizations. Such demands for judgment are articulated with equal measures of urgency and apprehension: There is a perceived need to make clear statements about what constitutes morally prohibited and permissible conduct with regard to intelligence gathering, and yet the tools with which one might perform such a task are not readily apparent. This article begins with three basic assumptions. First, intelligence collection does not exist in an amoral realm of necessity, but rather is a human endeavor involving choice and deliberation and therefore is vulnerable to ethical scrutiny. Second, there is no consensus on the moral guidelines to be invoked to engage in such scrutiny. There are many distinct ethical perspectives from which intelligence collection might be evaluated—and from which one might provide disparate judgments of the same action. Finally, the practices involved in intelligence gathering are equally multifarious and it would be unhelpful to attempt to cover them with a blanket justification or condemnation (from any perspective). Following on from these assumptions, this article sets out a simple typology of “realist,” “consequentialist,” and “deontological” ethical approaches to intelligence collection and explores how different practices might be variously evaluated from each. The aim is to provide an initial step toward thinking about ethics and intelligence collection. Writing more than three hundred years ago, Thomas Hobbes likened intelligence agents both to spiders’ webs and to rays of light.1 Spiders’ webs consist of “incredibly fine threads spread out in all directions” that “convey 120

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outside movements to the spiders sitting in their little cavities inside.”2 The image is effective and revealing. The spider is, of course, meant to represent those who exercise sovereign power—those who, for Hobbes, are burdened with the task of protecting the citizens of the state. The threads, or intelligence agents, together form an intricate web with which these rulers surround themselves and upon which they depend: “Without intelligence agents,” Hobbes observed, “sovereigns can have no more idea what orders need to be given for the defence of their subjects than spiders can know when to emerge and where to make for without the threads of their webs.”3 Lest one take from this metaphor that Hobbes viewed intelligence agents or the activity of gathering intelligence as in any way lacking in virtue, it should be read alongside his other chosen image. “Reliable intelligence agents,” Hobbes asserted unequivocally, “are to those who exercise sovereign power like rays of light to the human soul.”4 Elaborating on his position, Hobbes made it clear that intelligence gathering is not only beyond reproach, but suggested that for the sovereign to fail to engage in it would be morally reprehensible. Hobbes’s assessment is not lacking in relevance today. Intelligence gathering, and the roles and responsibilities of those engaged in this pursuit, are currently subjects of much discussion. In the wake of both the September 11, 2001, terrorist attacks on the Pentagon and the World Trade Center, and the “anticipatory” war against Iraq, the topic of intelligence evokes complex questions concerning how the activities involved in its collection might be variously condoned or condemned with regard to notions of, inter alia, national interest, self-defense, international obligation, and appropriate conduct. Responding to these questions involves ethically evaluating the practices of intelligence. Making judgments about the ethics of intelligence gathering—whether or not one is ultimately to agree with Hobbes—is, however, an arduous task. To assume otherwise would be to underestimate the complexity either of intelligence or of moral judgment. One must first establish that intelligence gathering is something that is open to ethical evaluation. It is then necessary to set out the criteria by which it might be deemed morally prohibited, permissible, or, indeed, as Hobbes advised, required. In what follows, I will address each issue in turn. Establishing intelligence gathering as accessible to ethical evaluation is relatively straightforward (although not uncontentious). It entails recognizing the collection of intelligence as being defined by particular actions and identifying those who perform them as possessing certain capacities. The matter of then determining criteria by which these actions might be evaluated is not at all straightforward. In addressing this more challenging problem, I will survey a number of ethical frameworks that have been variously, and sometimes problematically, employed in assessing actions involved in intelligence

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collection. These often competing approaches will be labeled “realist,” “consequentialist,” and “deontological,” respectively. In reviewing these approaches and the ways that they have been applied to intelligence gathering, I will be concerned with the degree to which each serves to challenge— or justify—existing practices.

INTELLIGENCE PRACTITIONERS AS MORAL AGENTS Michael Herman defines intelligence in terms of “information and information gathering”;5 Abram Shulsky and Gary Schmitt make a similar distinction between “information” and “activities” as two categories of phenomena to which the label “intelligence” is applied.6 Intelligence as information is open to many different types of assessment. We might be concerned with its accuracy, its relevance, the nature of its sources, or its possible significance in terms of policy making. However, it would seem odd to ask whether intelligence, as information, were “ethical,” “just,” or “morally acceptable.” As has been evident in debates in the United Kingdom and the United States surrounding intelligence dossiers made public prior to the Second Gulf War, such judgments are made of the ways that this information is collected, analyzed, and employed. It is with this first enterprise, intelligence gathering, that this article will be primarily concerned. Significantly, intelligence thus understood as an activity—indeed, as many different activities associated with the gathering of information, from espionage and communications interception to aerial photography— is what is open to specifically ethical evaluation. Fundamental to this account is the assumption that intelligence gathering involves performing actions. This is not a particularly controversial basis upon which to build an argument. Nevertheless, the idea that intelligence gathering does not involve actions—or at least does not involve actions that are subject to ethical evaluation—is one that has been proposed and therefore warrants a brief response. Herman boldly asserts that intelligence is “not doing things to people.”7 This statement raises two points of concern. First, it seems to rely on some blurring as to what constitutes action—especially when it is taken together with Herman’s earlier statement that “the essential difference should be recognized between the morality of information-gathering and action.”8 If, by his own definition, intelligence involves gathering information, then there would appear to be little doubt that it involves “doing” something. This might seem like a rather banal semantic point, but the fact that intelligence involves acting is significant if one is to contemplate moral guidelines by which one can both prescribe and judge appropriate conduct in the way that it is carried out. It is possible that the emphasis in Herman’s statement

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is misplaced. Perhaps what he wants to claim is that intelligence is “not doing things to people.”9 Indeed, he elaborates that “no one gets hurt by it, at least not directly.”10 The argument here seems to be that intelligence gathering does not involve the types of action that we need to be concerned with from an ethical perspective. Yet this assertion itself raises important and difficult issues about the ways in which concepts of harm, intention, and consequence affect our evaluation of actions. If simply “monitoring” someone leads to his or her being injured in some way, does it matter that this result is “indirect”? How can harmful effects of human intelligence collection, for example, be measured? Can such activities be considered wrong independently of the harm they may cause? Does the fact that one does not intend to adversely affect others when engaged in an aspect of intelligence gathering offer an effective ethical escape clause when this is, in fact, the consequence? I will address these issues below. Herman’s statement should also elicit some discussion both of how one characterizes those actions involved in the collection of intelligence and of the moral distinctions that one can make—and coherently defend— between, for example, intelligence “hunting” and “gathering,”11 intelligence “attack” and “defense,”12 “messy” and “clean,”13 or more or less “intrusive” forms of collecting information,14 and “direct” and “indirect” resulting harm. I will, for the purpose of this essay, accept Herman’s account of intelligence gathering as belonging to a category separate from “covert action.” I will not, however, automatically accept that intelligence gathering is, even by this account, a generally innocuous (and somehow passive) endeavor. Nor will I concur with the implication that intelligence gathering thus understood could be removed from ethical scrutiny. It is important to acknowledge that even if an activity were deemed not to harm others, including in ways that were indirect and unintended (a tall order when referring to policy and practice in international relations), it would not, on these grounds, be exempt from ethical scrutiny. Instead, the judgment that a means of gathering intelligence is beyond moral reproach (perhaps on the basis that it is indeed harmless) can only be the result of such evaluation.15 This ethical evaluation is viable simply because the actions involved in intelligence collection are performed by moral agents. The concept of a “moral agent” refers to those actors whose possession of certain capacities for deliberation and action mean that we can expect them to respond to moral guidelines, and, by extension, hold them accountable for their conduct. We can quite confidently assume that the individuals who occupy intelligence roles at MI5 and MI6, for example, possess capacities that allow them to deliberate over possible courses of action and their consequences and to act on the basis of this deliberation. In other words, these individuals, whether we commend or criticize their particular actions, are moral agents. As such, we can coherently talk about them

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behaving “morally” or “immorally,” “justly” or “unjustly,” “ethically” or “unethically.” It is on this point that Hobbes’s metaphors are flawed. Those involved in obtaining intelligence are not simply conduits of information, either as rays of light or as intricate threads of a web that convey movement to the spider (or “truth to power”). Their function may be, in part, one of communication, but they are not simply instruments. They are purposive actors and active participants in the practices of intelligence.16 Individual intelligence professionals—however they are portrayed—are not the only moral agents involved in intelligence activities. Although we often think of bearers of moral responsibilities in terms of individual human actors, formal organizations, whether state governments or intelligence agencies, can also be considered moral agents.17 These organizations can be expected to respond to ethical guidelines and to promote adherence to these guidelines among their constituents (by, for example, establishing formal codes of conduct, creating a culture within which the prescriptions and constraints embedded in these codes are followed, and ensuring that policies are commensurate with such codes). Moreover, these bodies can also be held accountable for what are deemed to be transgressions of ethical guidelines, although determining who is morally responsible for either “intelligence failures” or “inappropriate conduct” is never going to be easy when dealing with multiple, multifarious actors that include complex organizations. Importantly, if we accept that moral reasoning can and should guide actions and shape practices, then there is nothing sui generis about the human activity of intelligence gathering that would render it exempt from such reasoning. Actually evaluating the actions of moral agents involved in the practices of intelligence—whether individuals or organizations— is, however, considerably more difficult than maintaining that such an endeavor is viable. Taking this next step requires an understanding of the various approaches one might take to the ethics of intelligence.

COMPETING APPROACHES TO THE ETHICS OF INTELLIGENCE The ethical frameworks we invoke affect how we variously champion or challenge, justify or rationalize, accept or excuse a wide range of practices and policies. In what follows, I will not provide an exhaustive list of the possible ethical arguments that could be made regarding the collection of intelligence. Rather, I will offer a survey of some very diverse moral positions that have been embraced with reference to intelligence gathering. In order to discuss both their strengths and their weaknesses and to make comparisons between them, I will arrange these positions according to a simple typology—one that will also serve to highlight links between ap-

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proaches to the ethics of intelligence and to international relations (IR) theory more broadly.18 A Realist Approach: Raison d’État, Preemption, and Reciprocity One might easily be forgiven for thinking that a “realist” approach to intelligence would be devoid of moral considerations. Indeed, a realist approach to international politics is often taken to be the antithesis of an ethical approach. There are two problems with this assumption. First, it fails to recognize the diversity of approaches placed in the category of “political realism.” Classical theorists such as Thucydides, Hobbes, and Niccolò Machiavelli are retrospectively—and somewhat haphazardly—assigned this label. Twentieth-century scholars of international relations such as Hans Morgenthau adopt it as a term of self-description, and proponents of a more “scientific” approach to international politics, such as Kenneth Waltz, redefine it for their own use. Each of these unlikely bedfellows has a very different understanding of the role of ethics in international politics. Some lend legitimacy to the caricature of realism as committed to an amoral international realm. Very many do not. The second shortcoming of equating realism with moral skepticism is that doing so neglects an important and distinctive ethical approach to international politics—one that sees moral reasoning as compatible with, even if not exclusively defined by, self-interest, prudence, and raison d’état. This is an understanding of moral reasoning that differs markedly from the approaches that will be surveyed below, as it allows one to justify courses of action with reference to the good of the political community rather than by aspiring to a more cosmopolitan stance that would grant equal moral weight to all actors, whether friend or foe, ally or adversary. It is also an understanding of moral reasoning that warrants attention, particularly as it seems to fit remarkably well with some common assumptions about intelligence gathering. The realist approach I will discuss briefly here does not hold that morality is inapplicable to international politics—and to the practices of intelligence—but rather maintains that acting in the national interest is itself complying with a moral principle. (Again, not all so-called realists share this view. Some understand foreign policy as necessarily guided by the interests of the state, but present this as a strictly prudential, and in no way moral, position.) Hobbes is one political theorist, frequently portrayed within IR as exemplifying realism, who presents the defense of the national interest as a moral duty. This understanding of moral obligation informs Hobbes’s position on intelligence. As alluded to above, according to Hobbes, discussion of the morality of intelligence gathering does not involve contemplation of the limits and

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prohibitions one must apply to this practice, but focuses on the imperative to take certain actions: [F]or the citizens’ safety, sovereigns need to get intelligence of enemy plans . . . and since princes are obliged by the law of nature to make every effort to secure the citizens’ safety; it follows not only that they are permitted to send out spies, maintain troops, build fortifications and to exact money for the purpose, but also that they may not do otherwise.19

Despite the lack of restraint that this position allows vis-à-vis action directed at those beyond the borders of the state, the sovereign’s relations with the external world are nevertheless morally grounded: These relations arise from the sovereign’s moral obligations to his subjects. Significantly, Hobbes takes the sovereign’s duty to protect the citizens of the state beyond mere defense from existing or imminent threats. Implicitly endorsing Francis Bacon’s assertion that “as long as reason is reason, a just fear will be a just cause of a preventive war,”20 and prefiguring former president George W. Bush’s policy of “preemptive” and “anticipatory” action,21 Hobbes maintains that sovereigns may also do anything that seems likely to subvert, by force or by craft, the power of foreigners whom they fear; for the rulers of commonwealths are obliged to do all they can to ensure that the calamities they fear do not happen.22

This not only supports more aggressive forms of intelligence collection— “hunting not gathering,” to use Charles Cogan’s useful phrase—but also provides a moral justification for covert action (however high up on Loch Johnson’s ladder of escalation specific operations might be situated).23 Although this ethical realist position may lend legitimacy to any means of conducting external intelligence activities (that serve the interest of the state), it is also, at least contingently, compatible with policies that would advocate restraint in these activities. Somewhat counterintuitively, the ethical realist framework I have outlined could support reciprocal agreements to place limits on intelligence collection (of the type to which Herman refers, for example).24 Agreements on mutual restraint in intelligence collection would be compatible with this ethical realist position if they were motivated by the desire to protect the members of one’s own political community from intrusive methods of collection.25 There is an important caveat that must be offered here, however: The same position would justify such agreements being quickly and unilaterally rescinded. This is simply because a state’s commitment to such agreements must be determined according to the degree to which it serves the well-being of the citizens of the state at any one point in time. As Hobbes stated, “agreements are invalid in the natural state [of hostility],

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whenever justified fear is a factor.”26 Moral arguments in favor of reciprocal constraints on the practices of intelligence can be made by the ethical realist, but adherence to such constraints would necessarily remain dependent upon subjective and fluid interpretations of the national interest. Many aspects of this realist approach to intelligence collection seem very near to common positions about intelligence policy and practice.27 Moreover, such a stance is associated with often compelling claims to the value of the political community, the legitimacy of preventive self-defense, and the importance of patriotic sentiments. Without assigning it the label realist—or acknowledging it as exemplifying a specifically ethical perspective—Johnson identifies an approach to intelligence activities based on “an acceptance of the pre-eminence of the nation-state and the correctness of its defense.” This is an approach Hobbes would no doubt endorse. This is also an approach that Johnson maintains is “accepted by most contemporary scholars, government officials, and citizens.”28 Yet despite its apparent broad acceptance, an ethical stance that places national self-interest before broader international obligations would be deemed “immoral” from the approaches to which I will now turn. A Consequentialist Approach: Calculating an “Ethical Balance Sheet” A “consequentialist” judges actions by the value of their consequences. The most common version of this position, and the one that will be addressed here, is known as “act consequentialism,” according to which the right course of action is necessarily the one that produces the most good.29 Indeed, a consequentialist aspires to a world in which good enjoys the greatest balance over bad. This approach has been championed with respect to the ethics of intelligence by Herman, who makes the bold claim that “[i]ntelligence has to be judged in the first instance on its manifest consequences.”30 In order to make such judgments, he relies on the distinction cited above between intelligence collection and intelligence as knowledge. “Knowledge and activities can be examined separately,” he argues, “but then have to be integrated into an ethical balance sheet.”31 This moral accounting allows him to balance what he maintains are the overall good effects of intelligence knowledge against what he acknowledges can be the less acceptable means by which it is collected. At the bottom of the ledger, the benefits of intelligence knowledge are found to be in credit: The means employed to gather intelligence can be morally justified by the positive impact of the knowledge acquired. Positive effects of intelligence knowledge can, of course, be variously conceived. These benefits might be defined in terms of international peace or national security, reduced “enemy” civilian casualties in war, or none of our soldiers coming home in body bags. In other words, one might envisage

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positive effects of intelligence collection from a global perspective or from the point of view of a particular state. Indeed, the ethical realist approach addressed above can be seen to be structurally parallel to consequentialism in the sense that the morally right action is the one that maximizes the good. However, while the realist position advocates maximizing the good of a particular political community, the consequentialist position outlined here is based on impartial consideration of the interests of others—including those beyond one’s own political community. The position to which Herman aspires very clearly embodies this feature of a consequentialist approach. In exploring whether the gathering of intelligence is an ethical activity, he is centrally concerned with whether “it makes for a better world or a worse one.”32 This provides a stringent test for determining the moral acceptability of intelligence gathering. It also makes Herman’s own claim— that there exists a credit balance of intelligence results over collection—a particularly difficult one to sustain. Before turning to an explanation of why a consequentialist approach to intelligence collection establishes a stringent criterion for judging particular actions, it is important to note how such an approach can also, in some respects, be seen as excessively—and perhaps unacceptably—permissive. Act consequentialism does not require recognition of some activities—such as torture or killing the “innocent”—as intrinsically wrong. Rather, these activities can be deemed morally acceptable if they maximize the good. In other words, if one adopts a consequentialist approach, a good end can justify even extreme means. Herman exemplifies this line of argument when he maintains that the overall good of intelligence knowledge not only provides strong moral backing for intelligence gathering, but also means that, in some circumstances, “almost anything goes” in terms of methods of collection. “Should one torture terrorists to forestall imminent operations?” Herman asks. Presumably taking this as an example of the positive impact of knowledge outweighing the less appealing means by which it is collected, he suggests that “[p]erhaps one should.”33 Although a consequentialist approach might seem by this (albeit tentative) conclusion to be as permissive as the ethical realist approach to intelligence collection, it is not. For a consequentialist, the acceptability of any means of intelligence collection is necessarily contingent upon the benefits of knowledge outweighing the costs of collection on a global scale. Such a calculation is onerous, and many accounts of the resulting balance would be highly critical of methods of intelligence collection much less extreme than torture. There are (at least) three problems with relying on a consequentialist approach to lend moral legitimacy to intelligence collection. First, balancing the good outcomes made possible by intelligence knowledge against the detriment of certain activities involved in acquiring it requires one to define both that which is good and that which is detrimental, and to assign relative moral

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weight to each point along a spectrum between the two categories. This is a challenging—and some might argue impossible—endeavor. One might infer that in order for Herman’s ethical balance sheet to yield such a strong moral backing for even controversial means of intelligence collection, he must place a great deal of weight on the positive, cosmopolitan outcomes of intelligence knowledge. Such gains, he suggests, include a reduction in “irresponsible and ignorant national behavior.”34 What remains problematic is that there is likely to be debate about whether—and when—these outcomes are achieved. Did intelligence knowledge pertaining to Iraq’s weapons of mass destruction ensure that the United Kingdom behaved in a more informed and responsible manner? This is an issue on which reasonable people might disagree. Moreover, even if one could establish when such criteria were met, there remains the prior problem of identifying which outcomes would have to be realized to contribute to “a better world.” Tensions between notions of the “global good” championed by capitalism and communism, “the West” and “fundamentalist Islam,” and multinational corporations and antiglobalization movements demonstrate the difficulty of doing so. Of course, similar issues necessarily arise when we attempt to define, and assign value to, those activities that would, in Herman’s words, make the world “marginally worse.”35 Although Herman suggests that, when faced with certain adversaries, torture may be condoned as a means of acquiring information, he asserts that “the more intrusive methods of peacetime collection—espionage, some bugging, and perhaps diplomatic targeting” might not be similarly justified “when used against legitimate states.”36 He thereby considers the ethical debit attached to the practice of torture conceivably to be outweighed by its positive effects in a way that the ethical debits arising from other forms of intelligence collection (against other types of actors) could not be. Many would challenge this calculation. Some, of course, would deny that such moral considerations could be “calculated” at all and would consider certain acts to be intrinsically wrong. (I will address this position below.) Yet others might condemn torture on the consequentialist grounds by which Herman would, somewhat hesitantly, allow it. In addition to the point that torture might not be the most effective way of gathering information, one could argue that granting any legitimacy to the practice would produce more “harm” than bugging the embassies of allies—in terms of overall suffering, or by allowing an initial step down a slippery slope that would see the erosion of fundamental standards of human dignity. In short, it is fine to claim that the overall good achieved as a result of intelligence knowledge outweighs the possible detriment of the way it was collected, but if we cannot agree on what constitutes that which is good or that which is detrimental, then this cannot take us very far. Second, even if we could agree on what constitutes both the good outcomes intelligence knowledge can achieve and the harmful activities these

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outcomes would have to outweigh, a consequentialist analysis allows one to assign moral significance to indirect, unintended, and even unforeseen outcomes of actions. Herman’s defense of intelligence gathering as “at least not directly” hurting anyone therefore encounters obstacles according to the consequentialist position he claims to advocate. The observation that some means of obtaining information produce harm—to persons with regard to torture and to relations between states with regard to the bugging of embassies—would seem difficult to dispute (even if there is disagreement regarding the relative weight such harms should be given when added to an “ethical balance sheet”). However, even activities that have less obvious effects on others cannot necessarily be dismissed as being harmless. The mere experience of being observed can conceivably affect an actor’s behavior and trigger a response of aggression or, indeed, paranoia.37 James A. Barry refers to “psychological injury to innocent people” as a by-product of covert action that is to be avoided.38 This seems equally applicable to some forms of intelligence collection. A plethora of indirect harms might not be so easily outweighed by a claim to a (contested) global good. If an ethical balance sheet is to satisfy a careful consequentialist audit, it must register such harms as debits. Finally, if one attempts to employ Herman’s global ethical balance sheet, one must rely on projections of whether intelligence information would outweigh in utility the harm of the means by which it was gathered. As Michael Quinlan cautions with regard to applying consequentialist reasoning to covert intelligence collection, it is . . . hard even with hindsight—and policy, alas, has anyway to be made looking forward, not back—to measure the reality and scale of the possible benefits in any concrete way and to bring them into common calculus with the costs. Much intelligence effort is directed towards insurance against events whose probability, importance and cost cannot themselves be measured.39

Simply put, ascertaining whether a positive outcome will result from bugging the embassy of an ally or torturing a suspected member of a paramilitary organization is extremely difficult. (Declaring that positive outcomes have already been achieved and therefore lend legitimacy to certain collection activities retrospectively might be a convenient form of rationalization, but does little to guide actions.) Moreover, any attempt to make accurate projections about the international benefits of intelligence knowledge is further impeded by the reality that the impact of intelligence knowledge ultimately depends on how the knowledge is analyzed, disseminated, and employed—and by whom. Indeed, the actors facing particular ethical decisions regarding acceptable means of collecting intelligence are often not those who then decide how intelligence knowledge will be used. Intelligence knowledge helps to shape policy;

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policy outcomes cannot be used to justify how this information is collected before the fact. There is an important addendum to this final point that also follows on from the concern noted above regarding the significance of indirect consequences of actions. When different activities associated with intelligence are carried out by different moral agents, there can be a sense of “fragmentation of responsibility.”40 This occurs when one focuses only on the immediate consequences of one’s own actions—even if one recognizes that one’s actions play a vital role in a chain of activities that ultimately result in harm. For example, the act of gathering information might be seen as divorced from any harmful consequences of the way the resulting knowledge is exploited. This might allow one to disclaim responsibility for the harm. A student member of the Palestinian Security Services whose job it was to observe fellow students involved in political parties within Al-Azhar University was quoted as saying, “We don’t try to harm. We just monitor.” In addition to the point made above about the possible psychological impact of “just monitoring” people, it is interesting to note that the student then acknowledges that if his monitoring demonstrates that a particular party is gaining in strength, “there is interference” by the security department.41 Important to him, however, is that his own monitoring does not itself involve interference or harm. Intelligence collection and the exploitation of the resulting knowledge—including covert action that relies on this knowledge—might represent discrete activities. The consequences of these activities cannot, however, be so neatly disaggregated. Consequentialist reasoning allows for much more complex and extended causal links.42 From this perspective, the harm caused by forms of covert action that rely on intelligence knowledge, for example, cannot be as easily discounted by the moral agents responsible for mere “monitoring” as this Palestinian security guard—or Herman—might assume. A Deontological Approach: Duties and Intentions Radically opposed to an act consequentialist approach to intelligence collection are positions according to which some acts are wrong in themselves, regardless of their consequences. Such positions are referred to as “deontological,” a label derived from the Greek word deon, meaning “duty.”43 For the deontologist, an ethical balance sheet cannot guide our moral deliberations; ethical evaluations must be made with reference to the “goodness” or “badness” of the actions themselves. As some actions associated with intelligence gathering are morally unacceptable means to the pursuit of any end (regardless of how noble), the deontologist cannot condone methods of intelligence collection with reference to the knowledge they produce. Torturing a paramilitary leader to extract information about the location

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of a bomb that will kill hundreds of people, or engaging in deception to infiltrate a foreign intelligence agency, not only cannot be justified from a deontological perspective, but such actions are morally prohibited. As Charles Fried maintains, such constraints are not mere negatives that enter into a calculus to be outweighed by the good you might do or the greater harm you might avoid. Thus the . . . deontological judgments . . . may be said to be absolute. They do not say: “Avoid lying, other things being equal” but “Do not lie, period.”44

Principle, according to this approach, is more important than calculation. One example of a deontological ethical approach can be found in the work of Immanuel Kant, whose defense of absolute constraints on certain actions leads him to articulate an unsparing moral indictment of intelligence activities.45 Kant’s view of both the state that engages in covert intelligence and the individuals it puts to use for this purpose could not be more radically opposed to Hobbes’s glowing account. Far from acting out of duty by employing spies, Kant maintains in The Metaphysics of Morals that a state is prohibited—even in self-defense—from “using its own subjects as spies” and “using them or even foreigners . . . for spreading false reports.”46 While he notes that such acts “would destroy the trust requisite to establishing a lasting peace in the future,” this damaging consequence of employing spies and engaging in counterintelligence is an ancillary factor in his indictment. In stark contrast to Hobbes’s portrayal of the virtuous intelligence agent, Kant asserts that such activities render those who perform them “unfit to be citizens.”47 Indeed, in Perpetual Peace, Kant claims that “the employment of spies” is included within those “diabolical acts” that are “intrinsically despicable.”48 To understand Kant’s unconditional condemnation—and how his approach to ethically evaluating intelligence differs from the realist and consequentialist approaches already addressed—one must refer to his “categorical imperative,” by which he endeavors to identify fundamental principles of action by following rational procedures.49 According to two related formulations of the categorical imperative, one must act only in such a way that the principle guiding one’s action might coherently become universal law (and thereby be valid for all other agents), and one must treat other rational actors as having value as ends in themselves rather than solely as means to an end. Many activities presently associated with the gathering of intelligence—particularly human intelligence collection—simply fail to meet either criterion. With respect to the first formulation of the categorical imperative, the gathering of intelligence is associated with acts that are morally unacceptable because they are not universalizable. Both coercion and deception are examples of actions that are, on these grounds, categorically prohibited.

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Coercion might be more associated with covert action than with intelligence gathering narrowly defined (although the procurement of “controlled” sources, or sources that feel themselves somehow bound to fill the role of informant, routinely involves some form of coercion).50 Deception, however, is a fundamental aspect of intelligence. This conception might run contrary to some articulations of the role of intelligence. As E. Drexel Godfrey Jr. asserts, “at heart intelligence is rooted in the severest of all ethical principles: truth telling.”51 Yet even if the goal of intelligence collection is (ideally) to provide the policy maker with as accurate a picture of a situation as possible, exacting “the truth” from those with no interest in sharing it often and unavoidably involves deception. There’s the rub. Not only is deception intrinsic to clandestine collection, but it is also central to counterintelligence activities such as the deployment of “double agents” and the sending of false messages when it is we who would rather keep our secrets to ourselves. Onora O’Neill provides a clear explication of why, for Kant, attempting to universalize a maxim of deception involves a “contradiction in conception”: A maxim of deceiving others as convenient has as its universalized counterpart the maxim that everyone will deceive others as convenient. But if everyone were to deceive others as convenient, then there would be no trust or reliance on others’ acts of communication; hence nobody would be deceived; hence nobody could deceive others as convenient.52

The universalized version of deceiving others is that everyone deceives. In such a world, both truth and deception lose all meaning. Importantly, Kant does not assume coercion and deception to be morally wrong simply because of their alleged harmful affects (as a consequentialist might), but primarily because they cannot form principles that could be universalized. Actions that fail this latter test are morally prohibited. As noted above, the second formulation of Kant’s categorical imperative demands that human beings be treated as ends in themselves rather than exclusively as means to any end. Any attempt to deceive another in order to obtain intelligence would involve treating this other as a tool, thereby contravening Kant’s demand that the person be respected. Not only would torturing an individual to derive information—regardless of how many lives might be saved by obtaining this information—be absolutely prohibited, but less extreme actions would also be deemed immoral. Human intelligence collection, defined by Godfrey as “extracting from others information or national assets that they would not willingly part with under normal circumstances,” is, then, highly problematic.53 One might envisage acts of clandestine collection in which information would not, under normal circumstances, be so tightly guarded and might even have been obtained openly. This does not, however, mitigate the “wrongness” of obtaining it in such a way that the human source is not aware of,

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and therefore cannot consent to, this transfer of knowledge. As O’Neill explains, “On Kant’s account to use another is not merely a matter of doing something the other does not actually want or consent to, but of doing something to which the other cannot consent. For example, deceivers make it impossible for their victims to consent to the deceiver’s project.”54 Deception, even in defense of the state (as Hobbes would advocate) or in pursuit of morally admirable goals (as Herman condones), is, for Kant and other deontologists, absolutely prohibited. For Kant, this prohibition has its roots in the nonuniversalizability of deception and its concomitant disregard of human dignity. One final question might be raised regarding the moral acceptability of human intelligence collection according to Kant’s imperative that persons be respected. What are the implications of making use of the intelligence provided by an informant who, for example, arrives unexpectedly in a foreign embassy and (avoiding being inadvertently turned away) provides this information willingly? Importantly, this “walk-in” source is not being treated solely as a means to an end but is acting autonomously. The intelligence officer who accepts information from this person would not seem to be contravening Kant’s imperative. His or her hands remain clean. The informant might, however, have contravened Kant’s prohibition against deception in obtaining the information (and thereby have acted “immorally”),55 but this need not be the concern of the second party receiving it, assuming, of course, that this officer neither incited nor coerced the informant to engage in this deception. (The stark contrast with a “controlled” source here is clear. Extracting information from such a source involves both coercion and treating the source simply as a means to an end.) To turn from the particular example of Kant’s condemnation of intelligence and back to the deontological approach to ethics more generally, it is important to emphasize that some acts deemed immoral from a consequentialist perspective might actually be considered permissible from a deontological stance. This is an important point, as deontological approaches have been associated with restricting activities involved in intelligence gathering, whereas consequentialist arguments have been presented as being more permissive.56 This observation is also highly relevant to Herman’s defense of intelligence collection that it “does not hurt anyone—at least not directly.” Although the deontologist categorically condemns many intelligence activities that are at least contingently acceptable from a consequentialist perspective, the deontologist’s focus on his or her actions (rather than on their consequences) means that constraints on other methods of intelligence collection are less onerous and far-reaching than those constraints facing the consequentialist. This is particularly apparent with regard to the example of “mere monitoring” addressed above. A moral agent deliberating over

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which actions are acceptable from within a consequentialist framework must account for both the “indirect harm” of the targets’ psychological response to being observed and the harm caused by other agents engaging in more overtly intrusive and harmful activities that draw on the intelligence knowledge gained through the initial monitoring. Invoking a deontological framework, however, affords the luxury of focusing much more narrowly on “keeping one’s hands clean” with respect to one’s immediate actions. From this perspective, one might indeed argue that one’s actions are acceptable because they do not “directly” harm anyone. In short, when faced with overt surveillance activities, the deontologist might find means of intelligence collection ethically unproblematic that the consequentialist would have to enter as a debit on an ethical balance sheet. Although not universally accepted by those who adopt a deontological approach to ethics, some contemporary adherents, such as Thomas Nagel, explain this apparently permissive aspect of deontological reasoning with reference to a distinction between what we do intentionally and the consequences of our actions that we foresee (and allow), but which are not fundamental to our aims. As Nagel argues, “[T]o violate deontological constraints one must maltreat someone else intentionally.”57 By this view, even projected harmful consequences do not constrain actions—as long as they are unintended. Although this feature of a deontological moral framework might relieve moral agents involved in intelligence gathering from being constrained by some “unintended” effects of their actions, the same perspective is unyielding in its condemnation of employing deception or coercion in the collection of intelligence.

CONCLUSION The title of this article poses the problem of how intelligence practitioners— as moral agents—are best depicted. This is not merely an incredibly difficult question to answer, but it is perhaps an impossible one. At least, it is impossible to answer in general terms. Making moral judgments about the actors and practices involved in intelligence collection requires careful consideration of some fundamental issues. First, it is necessary to acknowledge that “intelligence collection” encompasses a multitude of diverse activities. None is exempt from moral evaluation. However, asking whether the (archetypal) intelligence practitioner, or intelligence gathering as such, is moral or immoral threatens to overlook the myriad distinctions that can be made between different methods of collection. Indeed, those activities that have been associated with intelligence gathering (with far from unanimous agreement as to its defining parameters) range widely from open source collection to espionage. Making a blanket pronouncement on the moral

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acceptability (or otherwise) of all such activities would be neither coherent nor helpful. A second crucial point that must be taken into account before accepting or rejecting Hobbes’s portrayal of those engaged in intelligence collection as indespensible and, arguably, virtuous “rays of light to the human soul” is that different ethical approaches to intelligence gathering yield distinct guidelines for acting (and judging action). Respective approaches also disagree on the moral relevance that should be assigned to the various ways of distinguishing between different types of activities. For one approach, the degree to which activities have overall harmful consequences establishes a morally relevant way of distinguishing between them; for another, whether or not activities involve deceiving others is of primary concern. Judging the conduct of an individual intelligence practitioner (or an intelligence organization if we are to refer to collective moral agents) requires one to explore the degree to which the actor in question conforms to the evaluative criteria of a particular ethical framework. The realist, consequentialist, and deontological approaches addressed above provide radically different ways of thinking about the ethical boundaries within which moral agents engaged in intelligence collection might deliberate, act, and, indeed, be judged. The realist position inspired by Hobbes can manifest itself in powerful arguments for the justice of actions that are deemed necessary to preserve national security—or, more boldly, to prevent other actors from achieving the capacity to threaten it. Even the intelligence practitioner who engages in aggressive, intrusive, and overtly harmful means of collection as part of the state’s external affairs need not, from this position, be guilty of a moral transgression. Significantly, this does not mean that such an approach is an amoral one. To the contrary, realism thus understood is an important—and arguably prominent—moral position. It is a position that establishes strict criteria for appropriate action rather than offering carte blanche approval of any policy or practice. Methods of intelligence collection are morally justified if they serve the well-being of the state; intelligence practitioners who contribute to this objective are the objects of praise (as long as, following Hobbes, they are “reliable” in their roles). This approach lends legitimacy to intelligence collection as it is currently conceived and practiced. Such a conclusion is not meant to imply that intelligence gathering is devoid of either rigorous codes of conduct or practitioners that deliberate and act in light of these codes. Rather, it is meant to suggest that limits to the practices of intelligence are presently understood and applied in ethical realist terms. Herman’s consequentialist position makes a valuable contribution to thinking about the ethics of intelligence—one that is, however, more conducive to setting very high standards of conduct to which one might aspire than to legitimating existing practices. The moral agent who invokes Herman’s ethical balance sheet as a guide to appropriate conduct in the

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gathering of intelligence is burdened with the task of taking into account a multitude of possible harms that might result from his or her actions, regardless of whether they are indirect or unintended. As the same moral agent is committed to weighing these harms against necessarily indeterminate global benefits, this perspective is restrictive of many actions associated with intelligence gathering, perhaps more restrictive than Herman would care to acknowledge. Yet, despite the prohibitions on performing intelligence gathering activities that can be argued from this perspective— with regard to practices from torture to overt surveillance—it is important to note that such prohibitions must always remain provisional and open to alternative understandings of the consequences of certain actions, alternative articulations of the “global good,” and alternative conceptions of harm. The provisional nature of these consequentialist restrictions is most apparent when the moral agent is faced with a claim to “supreme emergency,” variously articulated in terms of circumstances (or adversaries) that “shock the conscience of humankind,” “threaten our free world,” or “embody a universal evil.”58 When it is argued that the “global good” (however defined) faces such a threat, Herman’s ethical balance sheet might appear deceptively straightforward and a policy of “anything goes” in intelligence collection might seem well within moral reach. A policy that “anything goes” in the means of intelligence collection could never be justified from a deontological perspective. Deontological approaches, such as Kant’s, defend maxims that absolutely prohibit certain actions. Some interpretations of a deontological approach allow what critics might call an ethical loophole by condemning only those prohibited actions that are intended. Foreseen but unintended psychological damage done to individuals who are the objects of overt monitoring, for example, can then be excused as a mere side effect of intelligence collection, or as unfortunate but acceptable “collateral damage.” Nevertheless, many forms of intelligence collection involve doing things that are categorically prohibited from a deontological perspective and could not be convincingly presented as unintended effects of other (intended) actions. (Deception, for example, when employed as a means of acquiring intelligence, simply cannot be presented as a side effect of some other aim.) Deontological approaches might support a radical revamping of intelligence collection, but they cannot condone many of the activities that it is generally understood to encompass. After surveying these three approaches, one might reasonably ask whether any one of them can be applied in a critical capacity without condemning altogether activities that are presently seen as fundamental to effective intelligence collection. One might argue that, individually, the frameworks outlined above are either too accepting of the intelligence status quo, or too demanding in light of current political realities, to provide viable guides

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for action. Significantly, some theorists, borrowing principles from the just war tradition, have alluded to a fourth approach that might demand restraint in certain activities without condemning them outright. Such an approach, variously labeled “just espionage” and “just intelligence,” has been proposed but not pursued in detail in the context of intelligence collection.59 Interestingly, and not unproblematically, it draws selectively on each of the three approaches addressed above.60 Although the disanalogy between intelligence collection and war needs to be addressed by potential proponents of such an approach—particularly in relation to the notion of “just cause”—a “just intelligence” perspective warrants further attention and elaboration. Indeed, further investigation into ethics and intelligence is essential. At the beginning of the twenty-first century, the moral dilemmas and competing demands facing intelligence practitioners and organizations have arguably become more challenging than ever before. Understanding the different moral arguments that can be invoked to confront these difficult circumstances and critically engaging with the assumptions that underlie them—whether embedded in realist, consequentialist, deontological, or “just intelligence” frameworks—are vitally important endeavors. *** This article began as a set of discussant’s comments presented at Journeys in Shadows: Understanding Intelligence in the Twenty-First Century, the University of Wales Conference Centre, Gregynog, 9–11 November 2002. I am indebted to Michael Herman for presenting such a stimulating paper— and set of issues—to which I had the opportunity to respond. I am also very grateful to Jeroen Gunning, Michael Herman, Peter Jackson, Andrew Linklater, Len Scott, and Howard Williams for valuable written comments on earlier versions of this essay.

NOTES 1. Thomas Hobbes, De Cive [On the Citizen], ed. and trans. Richard Tuck and Michael Silverthorne (Cambridge: Cambridge University Press, 1998). De Cive was written in the 1630s and first published in 1647. Hobbes’s discussion of intelligence is presented in chapter 13, “On the Duties of Those Who Exercise Sovereign Power,” 145–46. I am very grateful to Howard Williams for directing me toward these passages. 2. Ibid., 145. 3. Ibid.; emphasis in the original. 4. Ibid. 5. Michael Herman, “Ethics and Intelligence after September 2001,” in this volume, chapter 8.

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6. Abram N. Shulsky and Gary J. Schmitt, Silent Warfare: Understanding the World of Intelligence, 3rd ed. (Dulles, VA: Brassey’s, 2002), 1. Shulsky and Schmitt also refer to a third category of “organizations.” These three categories were first suggested by Sherman Kent in Strategic Intelligence for American World Policy (1949; Princeton, NJ: Princeton University Press, 1966). 7. Herman, “Ethics and Intelligence,” chapter 8; emphasis in the original. 8. Michael Herman, “Modern Intelligence Services: Have They a Place in Ethical Foreign Policies?” in Agents for Change: Intelligence Services in the 21st Century, ed. H. Shukman (London: St. Ermin’s Press, 2000), 308. It might be that Herman is attempting to highlight a distinction between intelligence gathering and covert action in this passage. However, defining intelligence gathering negatively as not involving action is problematic. 9. Although elsewhere Herman states that “[c]ollection is necessarily against someone.” See ibid., 304. 10. In his Intelligence Services in the Information Age (London: Frank Cass, 2001), 211, Herman argues in a similar vein that “[u]nlike armed force, intelligence does not kill or cause suffering.” 11. Charles Cogan, “Hunters Not Gatherers: Intelligence in the Twenty-First Century,” in Understanding Intelligence in the Twenty-First Century: Journeys in Shadows, L. V. Scott and P. J. Jackson, eds. (Taylor & Francis Group, 2004), 147–61. 12. Herman, “Modern Intelligence Services,” 298. 13. Shulsky and Schmitt, Silent Warfare, 168. 14. Herman suggests that there is an inverse correlation between ethical acceptability and the degree of intrusion in the way that intelligence is collected in “Modern Intelligence Services,” 299. Loch Johnson’s “ladder of escalation” for covert operations—the aim of which is to distinguish between acceptable and unacceptable intelligence operations—is based on “a rising level of intrusion.” See his Secret Agencies: U.S. Intelligence in a Hostile World (New Haven, CT: Yale University Press, 1996), 60. It is interesting to note that Johnson provides examples of “intelligence collection” on each of the four rungs of his ladder. 15. As I will address below, some ethical approaches require that we judge actions on criteria other than their harmful consequences. 16. For Hobbes, however, who would not accept the voluntarist conception of agency that I am assuming, these metaphors are unproblematic. Indeed, Hobbes presented the motion of individual human beings as reducible to the effects of a machine. See, for example, his introduction to Leviathan (1651; London: Penguin, 1968). 17. For a further discussion of the possibility of treating formal organizations as moral agents, see Toni Erskine, “Assigning Responsibilities to Institutional Moral Agents: The Case of States and Quasi-States,” Ethics and International Affairs 15, no. 2 (October 2001): 67–85; and Can Institutions Have Responsibilities? Collective Moral Agency and International Relations (New York and Basingstoke, UK: Palgrave Macmillan, 2003). 18. This typology makes connections particularly with what is called “normative IR theory,” or the area of IR that deals explicitly with the study of norms and values in international politics. The ethical realist framework with which I begin touches on IR theory generally, but also overlaps with some aspects of the “communitarian”

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position in normative IR theory (although, importantly, not with regard to the specific example of Hobbes). The subsequent two frameworks, consequentialism and deontology, constitute two streams of the “cosmopolitan” approach to normative IR theory. For what remains the most thorough and accessible account of cosmopolitanism and communitarianism in normative IR theory, see Chris Brown, International Relations Theory: New Normative Approaches (New York: Columbia University Press, 1993), especially 23–81. 19. Hobbes, De Cive, 146. 20. Francis Bacon, The Letters and the Life, vol. 7, ed. James Spedding (London, 1874), 477. Cited by Richard Tuck in The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (Oxford: Oxford University Press, 1999), 19. 21. George W. Bush, speech to the graduating class at the U.S. Military Academy at West Point, New York, 1 June 2002, www.whitehouse.gov/ncws/releases/ 2002/06/20020601–3.html; and “The National Security Strategy of the United States of America,” 17 September 2002, www.whitehouse.gov/nsc/nss.pdf. 22. Hobbes, De Cive, 146. 23. Cogan, “Hunters Not Gatherers”; Johnson, Secret Agencies, 60–88. 24. Herman, “Ethics and Intelligence,” chapter 8. 25. I elaborate on this line of argument in the context of what I call a “communitarian realist” approach to restraint in war in chapter 6 of Embedded Cosmopolitanism: Duties to Strangers and Enimies in a World of “Dislocated Communities” (Oxford: Oxford University Press, 2008). 26. Hobbes, De Cive, 145. 27. Another so-called realist position appropriated by IR scholars, but that is less dependent on the notion that national self-defense itself constitutes a moral principle, also appears to fit well with some articulations of “the” intelligence ethos. E. Drexel Godfrey Jr.’s explication, in “Ethics and Intelligence,” Foreign Affairs (April 1978): 629, of “the grim ethos of clandestine collection” as rooted in the concept that “the weak or the vulnerable can be manipulated by the strong or the shrewd,” is a very close rendering of the principle found in Thucydides’s History of the Peloponnesian War (Harmondsworth, UK: Penguin, 1954), 402, that “the strong do what they have the power to do and the weak accept what they have to accept.” 28. Johnson, Secret Agencies, 73. If Johnson’s statement were qualified to maintain that the defense of the nation-state cannot eclipse duties we owe to our adversaries, then it would also be compatible with the “just intelligence” approach that I will touch on below. 29. Another form of consequentialism is referred to as “rule consequentialism.” According to the rule consequentialist, an action is right if it complies with a set of rules or principles that would best promote the good if generally followed. “Utilitarianism” is one type of consequentialist position (with both act and rule variations), according to which good and bad consequences are understood in terms of happiness and suffering. 30. Herman, Intelligence Services in the Information Age, 202. Throughout his work, Herman provides a thoughtful and nuanced analysis of the ethics of intelligence collection, and it would be inaccurate to say that he champions a consequentialist approach to the disregard of other positions and influences. Indeed,

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Herman acknowledges the significance not only of Kantian imperatives, but also of international law and notions of custom and legitimacy in addressing the ethics of intelligence gathering. In fact, Herman’s two most recent articles on ethics and intelligence, his contribution to this volume and his “11 September: Legitimizing Intelligence,” International Relations 16 (August 2002): 227–41, reveal the influence of what might be called an “international society” approach to intelligence, according to which (following the “English School” in IR) the legitimacy of certain actions is rooted in the shared values, rules, and customs of the “society of states.” (I am grateful to Andrew Linklater for emphasizing this strand of thought in Herman’s recent work.) Despite these other influences, the most prominent ethical approach in Herman’s work remains the consequentialist one presented here. In his contribution to the present collection, Herman reasserts that his “main emphasis is on intelligence’s observable effects,” and refers explicitly to his “consequentialist” approach to the ethics of intelligence gathering. 31. Herman, “Modern Intelligence Services,” 290. 32. Ibid., 289. In his most recent work, Herman defines this global good in terms of what is “good or bad for international society.” See his “Ethics and Intelligence,” 182. 33. Herman, “Modern Intelligence Services,” 306. Somewhat incompatibly, however, Herman’s more recent characterization of this position allows “almost any methods of collection . . . short of gross violations of human rights.” See his “Ethics and Intelligence,” 184. 34. Herman, “Ethics and Intelligence,” 183. 35. Ibid. 36. Herman, “Modern Intelligence Services,” 306. 37. I am grateful to Len Scott for this example. See also Herman’s acknowledgment of what one might call “indirect harm” in “Ethics and Intelligence,” 183. Herman observes that some “particularly intrusive” intelligence collection “could be perceived as a mark of hostility, reinforcing its target’s perceptions of threat or tension.” 38. James A. Barry, “Covert Action Can Be Just,” Orbis (Summer 1993): 378. 39. Michael Quinlan, “The Future of Covert Intelligence,” in Agents for Change, 69. 40. The phrase “fragmentation of responsibility” is employed by, inter alia, Jonathan Glover in Humanity: A Moral History of the Twentieth Century (London: Pimlico, 2001). He uses this phrase in a number of related ways. Most relevant to the argument here is the notion that when many people have a role in generating a harm a “division of labour [makes] evasion of personal responsibility easier” (350). 41. “Academic Freedom at the Palestinian Universities,” Palestinian Human Rights Monitor 3, no. 4 (August 1999). See www.phrmg.org/monitorI999/aug99 -disruptions.htm. I am grateful to Jeroen Gunning for drawing my attention to this example. 42. Bernard Williams makes a similar point in “A Critique of Utilitarianism,” in Utilitarianism: For and Against, ed. J. J. C. Smart and Bernard Williams (Cambridge: Cambridge University Press, 1973), 93–94: “Consequentialism is basically indifferent to whether a state of affairs consists in what I do, or is produced by what I do, where the notion is itself wide enough to include, for instance, situations in which

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other people do things which I have made them do, or allowed them to do, or encouraged them to do, or given them a chance to do. . . . [F]or consequentialism, all causal connections are on the same level, and it makes no difference, so far as it goes, whether the causation of a given state of affairs lies through another agent or not.” 43. Nancy Ann Davis, “Contemporary Deontology,” in A Companion to Ethics, ed. P. Singer (Oxford: Basil Blackwell, 1991), 205. 44. Charles Fried, Right and Wrong (Cambridge, MA: Harvard University Press, 1978), 9, cited by Davis in “Contemporary Deontology,” 205. For a comprehensive discussion of the ethics of deception, see Sissela Bok, Lying: Moral Choice in Public and Private Life (New York: Vintage, 1978). 45. Not all theorists would agree with the classification of Kant as a deontologist and some even claim that his philosophy is compatible with consequentialism. I will not engage with this contention here, but rather accept the widely held view of his work as an example of deontological reasoning. 46. Immanuel Kant, The Metaphysics of Morals (1797), trans. Mary Gregor (Cambridge: Cambridge University Press, 1991), 154. 47. Ibid. 48. Immanuel Kant, “Perpetual Peace: A Philosophical Sketch” (1795), in Kant: Political Writings, ed. Hans Reiss and trans. H. B. Nisbet (Cambridge: Cambridge University Press, 1970), 97. For a detailed comparison of Hobbes’s and Kant’s different perspectives on the role of the sovereign in the external relations between states—that includes a discussion of their respective views on intelligence—see Howard Williams, Kant’s Critique of Hobbes: Sovereignty and Cosmopolitanism (Cardiff: University of Wales Press, 2003). 49. Whereas for Kant, a categorical imperative is one that identifies an action “as objectively necessary in itself, without reference to another end,” he would associate the ethical realist and consequentialist approaches outlined above with the notion of a “hypothetical imperative,” by which an action “would be good merely as a means to something else.” Kant makes this distinction in “Groundwork of the Metaphysics of Morals,” in Practical Philosophy, ed. and trans. Mary J. Gregor (Cambridge: Cambridge University Press 1996), 67. 50. In “Ethics and Intelligence,” Godfrey describes the “controlled” source as “a source that you ‘own lock, stock and barrel’” (630), suggesting that such individuals are bought, blackmailed, or otherwise bound to their case officers. 51. Ibid., 625. 52. Onora O’Neill, Constructions of Reason: Explorations of Kant’s Practical Philosophy (Cambridge: Cambridge University Press, 1989), 96. O’Neill also discusses the “moral unworthiness” of coercion in the same passage. 53. Godfrey, “Ethics and Intelligence,” 629; emphasis mine. 54. O’Neill, “Kantian Ethics,” in A Companion to Ethics, 178–79. 55. The judgment that this individual behaved immorally might, however, be subject to an important qualification. If the informant were engaging in deception to counter a tyrannical regime, for example—a regime Kant would see as reducing one to existence within the “state of nature”—then his or her action might be immune from moral condemnation. (I owe this point to Howard Williams.) Significantly, however, the informant’s acts of deception could not be viewed as morally

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praiseworthy from this perspective. For the consequentialist, the goal of undermining a tyrannical regime could morally justify the means of doing so. For the deontologist, these extreme conditions might, at most, render normal categories of moral judgment inapplicable. See n. 58, below. This qualification is arguably relevant to judging the actions of informants in states such as Saddam Hussein’s Iraq. 56. Herman, “Ethics and Intelligence,” 184. 57. Thomas Nagel, The View from Nowhere (Oxford: Oxford University Press, 1986), 179; emphasis mine. This distinction is fundamental to what is generally referred to as the “principle of double effect.” Indeed, Nagel refers explicitly to this principle in the context of the passage cited above. 58. The phrase “supreme emergency” was used by Winston Churchill in 1939 and is adopted by Michael Walzer, Just and Unjust Wars, 2nd ed. (1977; New York: Basic Books, 1992), 251–55, as a conceptual category that covers grave and imminent threats to “human values” (253). (The phrase “shock the conscience of humankind” is also taken from Walzer, 107.) We are justified, Walzer maintains, in overriding moral principles of restraint in order to counter these threats. Although Walzer allows (with some hesitation) that such a justification might be invoked not only in response to threats to our common humanity, but also in response to a “supreme emergency” in the form of a threat to a particular community, the ethical realist position I outline above need not rely on such an appeal in order to justify means of intelligence collection. As I have argued, a “just fear,” broadly interpreted, rather than an imminent threat, is all that is needed to give legitimacy to any means of intelligence collection that serves the interest of the state if one adopts this realist perspective. As for the deontologist, even defense against a “supreme emergency” could not justify intrinsically immoral actions. Some deontologists, however, acknowledge that such a state of affairs would render moral principles inapplicable, thereby removing actions in response to a “supreme emergency” from either moral justification or condemnation. (For an example of this line of argument, see Fried, Right and Wrong, 10.) 59. Quinlan uses the phrase “just espionage” in “The Future of Covert Intelligence”; Herman refers to the possibility of “just intelligence” in “Modern Intelligence Services” and “Ethics and Intelligence.” Other scholars have invoked just war principles to address covert action. See, for example, William Colby, “Public Policy, Secret Action,” Ethics and International Affairs 3 (1989): 61–71; and Barry, “Covert Action Can Be Just,” 375–90. For an influential articulation of contemporary just war theory, see Walzer, Just and Unjust Wars. 60. A just war position shares with an ethical realist approach the assumption that self-defense is the right of the political community. Moreover, a just war position requires that we exercise restraint in the use of force against our “enemies.” The principles through which this requirement is articulated rely respectively on consequentialist and deontological reasoning. For an influential articulation of contemporary just war theory, see Walzer, Just and Unjust Wars.

10 The Unresolved Equation of Espionage and International Law John Radsan

Every thirst gets satisfied except that of these fish, the mystics who swim a vast ocean of grace still somehow longing for it! No one lives in that without being nourished every day. But if someone doesn’t want to hear the song of the reed flute, it’s best to cut the conversation short, say good-bye, and leave.1

FROM POETRY TO PROSE Mortals should not attempt to perform miracles. We cannot convert water into wine at weddings, turn lead into gold in a chemistry lab, or form a human being from a lump of clay. To accept reality is to abide by the laws of physics. Yet even as we come to accept that we cannot simultaneously measure a particle’s location and speed,2 more modern principles take us deeper into doubt. Soon one reference gives in to another, discoveries in the physical sciences affect the social sciences, and relativity is everywhere. Not all equations can be solved. Espionage and international law start from different points. Espionage dates from the beginning of history, while international law—as embodied in customs, conventions, or treaties—is a more recent phenomenon. 144

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They are also based on contradictory principles. The core of espionage is treachery and deceit. The core of international law is decency and common humanity. This alone suggests espionage and international law cannot be reconciled in a complete synthesis. Perhaps we should leave it at that. The incompatibility seems so simple to convey. But the legal academy does not tolerate the abstractions of other art forms, a stroke of black paint on white canvas, or layers of white on white. Pages have an insatiable appetite for words. This essay, in order to offer up something to that appetite, is divided into five parts. After this introduction, I describe a Hegelian impulse, the perpetual drive to find unity in disorder. That impulse, for better or worse, creates the train and the track for many of the academy’s journeys. I then define what I mean by “intelligence activities” for purposes of this essay, after which I survey the scholarship that existed before this symposium on the relationship between espionage and international law. As the number of pages written on this topic suggests, scholarship on espionage and international law has not been very extensive. My survey of the scholarship concludes by leaving us in an ambivalent position: Espionage is neither legal nor illegal under international law. Espionage exists between the tectonic plates of legal systems. Following my survey of the literature, I describe a set of dualities that informs the international practice of espionage. This final part, inspired by mystical poetry, is the most substantial part of this essay. Coming full circle, my conclusion, as presaged by my introduction, is that rather than force synthesis we should tolerate the ambiguities and paradoxes inherent in the world’s second oldest profession. Accepting that espionage is beyond the law, we should move on to other projects with grace.

RESISTING THE HEGELIAN IMPULSE I am pleased to have been invited to this symposium [two-day symposium at the University of Michigan’s law school, sponsored by the Michigan Journal of International Law, in 2005]. As a visitor from a neighboring state, I hope my behavior and my comments comport with the politeness expected from a guest in someone else’s home. For months before this symposium took place, the website for the Michigan Journal of International Law identified the proposed topic of our discussion. To focus my research, I went to that page several times. It said: “While states may regulate intelligence gathering domestically, no significant treaties or conventions address the process, nor is it subject to any internationally recognized set of principles or standards. . . . [T]he lacuna in international law on these matters . . . suggests a clear need for focused discussion.”3 In other words, although individual countries have regulated their intelligence activities through domestic statutes, very few

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countries, if any, have signed international treaties or international conventions that cover intelligence activities. Moreover, customary international law, so it seems, has very little to say about espionage. Those who took the time to conceive this symposium label the lack of international norms on intelligence gathering a “lacuna,” that is, a blank space or a gap in the law. Their characterization springs from two assumptions. First, they assume that international law is empty or nearly empty with regard to intelligence gathering. Even so, they are delicate about asserting proof of a negative proposition. They trust that the symposium’s participants and speakers will join them in canvassing the international law and, by oral or written comments, will bring any relevant treaties or conventions to their attention. Second, even if they are correct in spotting the gap, they assume there is a point or a purpose in trying to fill it. They opt away from saying nothing or doing nothing about the emptiness. This second assumption reveals a Hegelian bent to the project. They are active and dynamic toward a distant goal. Out of disorder and differences, they strive to discover (or to impose) some unity and cohesion on espionage and international law. G. W. F. Hegel, in line with this enterprise, once said, “The history of the world is none other than the progress of the consciousness of Freedom.”4 For Hegel, the optimism is unrelenting. The symposium’s organizers, whether knowingly or unknowingly influenced by Hegel, have not resigned themselves to pessimism. There could be a value to the process of thesis, antithesis, and synthesis, repeating itself toward a better developed system of international law on intelligence gathering. Rest assured, I too am willing to march. But my approach, inspired by mystical poetry and analytical philosophy, remains skeptical of the ultimate value of any such Hegelian endeavor.5 It may not be fair for me to compare anyone to Hegel or to pick on an old German philosopher. Except for pockets of support, he has fallen out of favor with professional philosophers.6 I may already have given him too much credit. But in denying the Hegelian impulse, I recognize and assert that some quests and questions are meaningless, that more energy should first be spent defining our terms and concepts with precision. Caution should precede the expressions from our mouths, pens, and computers, and sometimes we should do no more than stay silent. To paraphrase Ludwig Wittgenstein, the trick is to know what topics we should discuss and what topics we should pass over.7 If inertia is not an acceptable resolution to the tension between espionage and international law, it seems we could only move in one of two basic directions. The first is to attempt to eradicate espionage. We could, for instance, strip away the existing protections for spying. The Geneva Conventions, which provide some guidance on espionage during war, could be trimmed, and the Vienna Convention on Diplomatic Relations,

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which seems to protect diplomats whether or not they stick to diplomatic activities, could be limited. In this fashion, the costs for those who perform espionage could be raised to encourage eradication of the practice. In fact, costs could be raised so high that spies could be summarily executed on the slightest of proof. It could become open season on spies. Moving in the opposite direction, international law could be adapted to accommodate espionage. Protections for spying could, for instance, be strengthened under international law. The principles of the Vienna Convention could be extended to all persons, diplomats or not, who commit espionage. The worst that could happen to spies would be that the country that captured them would deport them back to their home country. In this way, the costs could be decreased so that espionage would no longer be such a dangerous profession.8 How these two possible realities would ultimately differ from the current one is difficult to fathom and even more difficult to measure.

ESPIONAGE AS A SUBSET OF INTELLIGENCE ACTIVITIES Intelligence can be divided into two basic categories: collection and analysis. This division corresponds with the two main sections at the Central Intelligence Agency: the Directorate of Operations and the Directorate of Intelligence. A “case officer” in the Directorate of Operations collects the intelligence and an “analyst” from the Directorate of Intelligence synthesizes intelligence that has been collected. Covert action, however, does not fit into the traditional categories of collection and analysis at intelligence agencies. Covert action is not collection, nor is it analysis. For purposes of the requirements of presidential findings and congressional notification, U.S. law defines covert action as “an activity or activities of the United States Government to influence political, economic, or military conditions abroad, where it is intended that the role of the United States Government will not be apparent or acknowledged publicly.”9 Carved out from the definition of covert action are a string of “traditional” activities: acquiring intelligence, performing counterintelligence, and maintaining operational security; conducting diplomatic and military activities; conducting law enforcement; and providing “routine support” to covert activities.10 During the CIA’s history since World War II, covert action has taken many forms: providing money and support to political parties in foreign elections (for instance, in Italy); creating and distributing propaganda in other countries (through platforms such as Radio Free Europe); attempting to assassinate foreign leaders (such as Fidel Castro); selling arms to countries friendly with terrorists (Iran) so that American hostages can be released; and training rebel armies (for instance, the Contras in Nicaragua).11 Some of these covert

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actions got the CIA into trouble. Its efforts against Salvador Allende in Chile and its involvement in the Iran-Contra scandal are two prominent examples. The CIA’s trouble, or the “blowback,” from covert action is one reason the old guard at the CIA shy away from it, convinced that the CIA should stay within its traditional role of gathering foreign intelligence. But President George W. Bush, who is reported to have authorized a comprehensive covert action plan against al-Qaeda after September 11,12 was not too troubled by the CIA’s past. The CIA is not, of course, the only gatherer of intelligence for the United States. In the global struggle against terrorism, the CIA competes with the Defense Department to be the most important gatherer of intelligence. This stands true even though Michael Hayden has replaced Porter Goss at the CIA and Robert Gates has replaced Donald Rumsfeld at the Pentagon. Yet no doubt some of the CIA’s covert actions may overlap with the Defense Department’s military functions, and today many of the old lines between the intelligence function and the military function have blurred. Having hinted at some of the complications that stem from covert action, I will leave it aside for purposes of this essay. In that sense, I accept the recommendation of the old guard at the CIA that I focus on “collection,” or the gathering of foreign intelligence. I will adopt the definition of foreign intelligence as “information relating to the capabilities, intentions and activities of foreign powers, organizations or persons, but not including counterintelligence except for information on international terrorist activities.”13 This definition assumes the United States was not in a classic armed conflict during the Cold War and is not in an armed conflict on all fronts in the current war against al-Qaeda. Sometimes the CIA does simply gather intelligence during military operations. The intelligence that was gathered during the two Gulf wars under the two Bushes—the locations of Iraqi tanks, missiles, and troops—is a classic example. Most of the time, however, the CIA’s global operations take it outside areas that fit squarely within the pat definitions of intelligence activities or indeed within the laws of war. As applied to foreign intelligence, there is war, peace, and something between the two. During World War II the Office of Strategic Services, tutored by the British services, carried out many intelligence activities for the United States. In 1947, a few years after World War II, the CIA was established14 as an intelligence agency for a peacetime of sorts. Congress’s establishment and funding of the CIA serve as part of the proof that our two elected branches agree that both covert action (the “fifth function” from the CIA’s original charter) and espionage are necessary against other countries, even during times of “peace.” The Constitution, the National Security Act of 1947, the Central Intelligence Agency Act of 1949,15 and the unending string of congressional appropriations for intelligence activities create a firm foundation, from the

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perspective of U.S. law, for the legality of espionage that the United States commits overseas. In this essay, I am most interested in “intelligence,” defined narrowly to exclude covert action. Further, although foreign intelligence can be gathered through both technical and human sources, I focus on the human relationships, that is, the interactions between case officers and agents that constitute collection. Although I am aware that the CIA also collects information through open sources such as foreign newspapers and the Internet, and that other U.S. agencies, including the Department of State, are involved in collection, my focus is on the gathering of information from human beings through secret means. My definition of espionage, one of trench coats and Fedora hats, corresponds with the CIA’s self-pronounced status as the American master of espionage. My definition, in this way, takes espionage back to its historical and international roots.

THE LITERATURE ON ESPIONAGE AND INTERNATIONAL LAW Most of the literature concerning espionage and international law addresses situations in which the laws of war apply. The rules of espionage in times of war, whether based on the Hague Regulations of 1907, the Geneva Conventions, the Protocol Additional to the Geneva Conventions, or other sources, are straightforward. A “scout,” someone who stays in military uniform or sufficiently designates himself as a combatant, risks being caught behind enemy lines.16 If caught, this person should be dealt with as a prisoner of war because there is nothing treacherous or deceitful about his scouting or reconnaissance mission. But a spy, someone who does not wear a military uniform or a clear military designation, is not entitled to protection as a prisoner of war. His deceit can lead to severe punishment from his captors. Despite the potentially harsh penalties, the trial itself for the charge of espionage should follow standard procedures. Note, by the way, that if the spy returns to his military organization after his mission and is then captured in battle wearing a soldier’s uniform or designation, he cannot be punished for his prior act of spying. A spy therefore has a strong incentive to succeed in his spying mission and to return quickly to his military organization. The literature concerning espionage and international law outside the laws of war is much less developed. As Richard Falk noted the year I was born, “Traditional international law is remarkably oblivious to the peacetime practice of espionage. Leading treatises overlook espionage altogether or contain a perfunctory paragraph that defines a spy and describes his hapless fate upon capture.”17 Those words remain a fair assessment of the state of the literature today.

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The literature that does exist on peacetime espionage can be split into three groups. One group suggests peacetime espionage is legal (or not illegal) under international law. Another group suggests peacetime espionage is illegal under international law.18 A third group, straddling the other two, maintains that peacetime espionage is neither legal nor illegal—perhaps, as Friedrich Nietzsche would say, it is beyond good and evil. In any event, the uncertainty in the literature supports my thesis that espionage is beyond international consensus. Espionage Is Not Illegal Geoffrey Demarest agrees with this symposium that there is an interesting lacuna between espionage and international law.19 But, like me, he is also careful to distinguish between espionage during wartime and espionage during peacetime. To Demarest, attention in the law to “peacetime espionage has lagged behind” the development of other international norms concerning intelligence gathering.20 What there is in law is “virtually unstated.”21 Demarest’s conclusion is that although espionage is “an unfriendly act,” it does not violate international law.22 In identifying a trend whereby international organizations such as the United Nations have increased their intelligence-gathering capabilities, he is in favor of espionage. In fact, Demarest seeks to ensure that rules against espionage will not apply to the gathering of intelligence through technical means such as satellites. Further, he considers another categorical protection: “Others who are clearly intelligence gatherers (e.g., scholars, students, news reporters, or members of nongovernmental organizations) should not be considered spies if collecting within the scope of their express identities.”23 His concern is to ensure that people not be labeled spies with a broad brush, but his proposal does not address the possibility that a news reporter, for example, could be both covering her story and passing information to her home intelligence service. Demarest’s proposal also does not address how to avoid the exploitation of such per se exclusions from the spy label by intelligence services, which could use those excluded categories aggressively as a form of cover for their intelligence officers. Another of Demarest’s proposals is more modest and less subject to disagreement. He argues that captured spies, even when convicted, should not receive the death penalty for peacetime espionage.24 Only war, it seems, should lead to ultimate punishments. While concluding that peacetime espionage is not illegal, Demarest also makes arguments that could place him among those who maintain that peacetime espionage in reality is neither legal nor illegal. In particular, his mention of “preserving the paradox of espionage”25 is consonant with many of my conclusions. Demarest finds support from another military colleague, Roger Scott. Scott asserts that “[e]

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spionage is not prohibited by international law as a fundamentally wrongful activity.”26 He may seem to be hedging by adding the adverb “fundamentally,” such that one is left to wonder whether espionage is wrongful at least in some way. The rest of his sentence, however, is less of a hedge: “[I]t does not violate a principle of jus cogens.”27 To give espionage some legal support, Scott ties it to the “right of anticipatory or peremptory” self-defense under the UN Charter and international law.28 But that right, as Scott recognizes, is subject to much debate itself. The U.S. invasion of Iraq in 2003—when the United States decided not to wait any longer for Saddam Hussein to confirm his compliance with UN resolutions concerning weapons of mass destruction—heightened the debate about the nature and existence of the right to anticipatory action. The foundation for peacetime espionage, to be sure, is not as firm as it could be. Despite that fact, Scott asserts on his own authority that “the surreptitious collection of intelligence in the territory of other nations that present clear, articulable threats based on their past behavior, capabilities, and expressions of intent, may be justified as a practice essential to the right of self-defense.”29 In other words, according to Scott, espionage is “okay.” Like Demarest, however, Scott might also be better placed in the third group, those who believe espionage is neither illegal nor legal. Scott, identifying a “classic double-standard,”30 argues that most states, while they conduct espionage and expect that it will be conducted against them, reserve the right to prosecute people who commit espionage within their territory. Demarest and Scott are right to hedge. Under international law, if something were truly legal (or at least not illegal), no state should prosecute those who do it. Neither Demarest nor Scott is willing to go that far in defending espionage, and rightly so. Espionage Is Illegal In the opposing camp, Professor Manuel Garcia-Mora believes that “peacetime espionage is regarded as an international delinquency and a violation of international law.”31 Professor Quincy Wright, for another, believes peacetime espionage violates a duty states have under international law “to respect the territorial integrity and political independence of other states.”32 Ingrid Delupis comes out even more strongly against the legality of espionage. According to Delupis, “espionage appears to be illegal under international law in time of peace if it involves the presence of agents sent clandestinely by a foreign power into the territory of another state.”33 Her definition of espionage, however, turns on the nature of the clandestine activity. What is not clear in Delupis’s account is whether “clandestine”

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includes intelligence officers who enter a country under the false pretense of being diplomats (using diplomatic passports with the local immigration authorities) or whether she would limit the definition to those who, unknown to the local authorities, sneak into the country. Either way, Delupis makes the further qualification that espionage is not by itself an international crime.34 Here she draws a fine distinction between behavior that is contrary to international norms and behavior that constitutes a crime. International crimes are acts that can be prosecuted before an international tribunal: genocide, torture, or other war crimes. To her knowledge, international tribunals, whether in Nuremberg, The Hague, or elsewhere, have not indicted or convicted anyone for the simple wrong of espionage.35 So it seems that even those who take a hard line against espionage add qualifications to their views. Between the apparent chasm separating the first and second groups, there is much room for subtlety and nuance. Espionage Is Neither Legal nor Illegal Two former CIA officials, Daniel Silver and Frederick Hitz, state that “there is something almost oxymoronic about addressing the legality of espionage under international law.”36 That is an authoritative view, packed into one page in a national security casebook, from a former General Counsel and a former Inspector General at the CIA. Speaking of the “ambiguous state of espionage under international law,”37 they conclude that espionage is neither clearly condoned nor condemned under international law. The rules and the ethics are situational. Countries are much less tolerant when espionage is committed against them than when they are committing it against friends and foes. Whether espionage is legal or illegal under international law, they are realistic about the fact that countries, for reasons of self-defense and for their own interests, are going to commit espionage in other countries. According to Silver and Hitz, that may explain why no treaties or conventions specifically prohibit espionage. Another commentator, Christopher Baker, places his view of espionage in the third, in-between category. As he argues, “[I]nternational law neither endorses nor prohibits espionage, but rather preserves the practice as a tool by which to facilitate international cooperation.”38 Harking back to another era when the Americans and Soviets negotiated over the size of their nuclear stockpiles, Baker demonstrates that shared intelligence can be very useful in monitoring and enforcing agreements on arms control. “Without espionage,” Baker claims, “countries could be required simply to accept the information provided by other treaty partners as accurate.”39 Clearly, that will not suffice. President John F. Kennedy, so Baker hints, had a broader range of policy options during the Cuban Missile Crisis because of good human and tech-

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nical penetrations into developments in Cuba. Further, Baker argues that this “functional” approach to espionage will assist international cooperation in dealing with many other problems. Today those include terrorism, pollution, international trafficking of narcotics, the spread of diseases such as AIDS and SARS, ethnic conflicts, and illegal migration. Professor Simon Chesterman, a contributor to this symposium, agrees that espionage creates functional benefits for the international community, and he further suggests that the benefits of sharing intelligence with multilateral organizations could lead the international community to develop new international norms.40 In particular, Chesterman points to the beneficial use of shared intelligence in presenting the case for preemptive military action,41 justifying targeted financial sanctions against persons and groups,42 and supporting international criminal prosecutions.43 While Chesterman is modest in his suggestions, he should be more modest in his conclusions. These examples simply show that a state will cooperate in sharing intelligence when doing so serves a particular interest. On-off deals, however, are a very slow and indirect way to achieve international consensus on the legality of espionage. The gap is still there.

A STRING OF DUALITIES Those who are inclined to let things be can stop here. Or, if they continue to be drawn to espionage, they can bounce back and forth along a string of dualities with me. The dualities go way back in history, and they apply to intelligence practices in many countries. My discussion of the U.S. example is just one string within the themes and variations from international practice. Contrary to an idealistic agenda, the dualities do not lend themselves to an overarching synthesis of the legality and morality of espionage. Heroes and Traitors People become spies in one of three basic ways. Some volunteer, some are recruited, and some join through a practice in between. Case officers, who measure themselves by how many “scalps” they have taken, tend to exaggerate how much they did to bring a spy into the fold. For instance, they may claim recruitments where more objective observers would see volunteers. In any event, handling spies once they have crossed the Rubicon to the other side requires great skill. Case officers must conduct countersurveillance to ensure their meetings with the new spies in safe houses or other locations are not monitored through technical or human means. Mistakes are costly. If the countersurveillance fails, the spy or agent will be “rolled up,” meaning arrested, tortured, or executed.

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All intelligence services perform surveillance and countersurveillance. These are related skills in the sense that the rabbit and the fox are all part of the same hunt. If a case officer cannot master these skills, she will be of little use to her service. Intelligence services may speak different languages around the world, but the language of surveillance and countersurveillance is uniform, a sort of espionage Esperanto.44 Usually the case officers who handle spies do more countersurveillance than surveillance; their colleagues in counterintelligence might specialize in surveillance. Case officers around the world must also be adept at various secret means of communication. These range from chalk marks to dead drops to highly sophisticated transmitters. If opposing services intercept these communications, consequences for the spies and their handlers can be as grave as countersurveillance gone bad. Lives are lost and reputations ruined. The United States may be more advanced in the technology it uses for espionage, but the skills of espionage are generic and international. Foreign services can use their ingenuity to compensate for what they lack in technology. For example, some foreign services without polygraph machines use other means to determine whether candidates, employees, or sources are telling them the truth. Services in other countries are said to be better than the CIA at recruiting and handling human sources.45 Espionage, like medicine or engineering, transcends the political constructs of international borders. The skills are certainly adjusted for local differences, but repairing a broken leg or building a bridge over a river— like assessing, developing, recruiting, and handling human sources of information—is very much the same all over the world. Espionage, as a professional pursuit, speaks an international language. For this reason, it does make some sense to speak of international standards of espionage. CIA officers and KGB officers had more in common with each other than they did with lawyers and accountants in their own countries. Intelligence officers are part of the same guild. The existence of implied espionage standards, however, does not automatically produce uniformity in international law concerning espionage. Trade practices and the laws of trade are not the same concepts. Though the skills associated with espionage appear to transcend political boundaries, the morality of espionage stays local. Moral relativism is inherent in espionage. If an American officer, an Aldrich Ames or a Robert Hanssen, goes over to the other side, we call him a traitor. We prosecute him to the fullest extent possible.46 But if someone from the other side, a Dusko Popov or an Oleg Penkovsky, comes to our side, we admire him. If he comes for ideological reasons rather than for money, we might even call him a hero. The memoirs of CIA officers speak with respect and admiration of Soviet intelligence officers, whether from the KGB or GRU, who came to

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the Western side.47 But the same memoirs vilify the Americans who helped the other side: from the Rosenbergs selling atomic secrets all the way to the John Walker family ring selling cryptographic machines and codes. This doublespeak may simply be for public consumption. In private, sophisticated case officers must be aware of the paradoxes of their trade. This may explain why many case officers keep a personal distance from their sources, withholding their home phone numbers and using cover names. Their volunteers and their recruitments, after all, are somebody else’s traitors, a paradox not easily ignored. Aldrich Ames, for example, did not express any remorse about the Soviet citizens who were executed after he revealed their identities to the Soviet services as CIA-FBI assets.48 Ames considered them all players, like him, who knew the risks and the benefits of their game. The FBI turncoat Robert Hanssen walked in Ames’s footsteps. Both Ames and Hanssen understood the rules. Living in two layers of shadows, they became rich and received encouragement from their Russian handlers as long as their true affiliations were not revealed to U.S. law enforcement. Once exposed, they would have found protection in Russia had they gotten out of the United States. Like Kim Philby, the British master of deceit, they would have been provided dachas and given access to the extra money that had been set aside for them in local accounts. Once revealed and arrested within American control, however, they faced execution and long terms of imprisonment. In the end, there was little the Russians could do for them. The same fate awaited the Russians who joined Team America. Although the skills of espionage transcend borders, the spy’s physical location when he is revealed, compromised, or “outed” makes a huge difference. In his original home, he will face severe consequences. In his new home, he will be treated well. For a spy, sometimes one international flight makes all the difference in the world. The moral relativism inherent in international espionage creates a sort of moral equivalence among the intelligence services. Their activities are neither fully good nor fully bad. Any chance of moral advantage depends on the superiority of their political system. During World War II, for example, not much separated the German intelligence services from the Soviet services in the way they conducted their business. Both were professional, ruthless, and effective. Both services recruited spies in the other country. Good intelligence created slight advantages, but the war was won and lost based on economic and military might. For such reasons, the Soviet services ended up with the winners, the German services with the losers. The amorality of espionage may have been part of the reason that after the war the Americans and the Soviets, without much compunction or hesitation, bid for the services of German intelligence officers and networks. They were hiring free agents who went beyond political systems.

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Inner Doubts Even successful recruitment creates its own doubts. Nothing is as simple as it seems. To make sure the spy is not a double agent, penetrating operations and planting disinformation, the recruiting service will spend months checking the spy’s “bona fides.” This is standard practice. If the spy came over easily, that is a sign. If the spy came over despite great resistance, that is another sign. If the spy gives “chicken feed,” or information that is already known, that is a sign. If the spy gives over “the crown jewels,” or very useful information, that too is a sign. What these signs mean in the total equation is subject to endless debate, revision, and controversy. It is a form of espionage semiotics, and it is one of the reasons James Angleton, a former head of the CIA’s counterintelligence branch, described espionage as a journey through a wilderness of mirrors.49 It takes people, in a test of their sanity, into stranger universes than Alice’s Wonderland. To this day, people will debate whether Yuri Nosenko was a true defector from the Soviet Union or a double agent sent to the United States to take us off the trail of supposed Soviet involvement in the Kennedy assassination. Angleton, to his grave, stuck with the double agent theory,50 while most of his brethren went with the true defection. In my opinion, John le Carré is masterful in displaying the moral ambivalence inherent in espionage. As the reader makes her way through Tinker, Tailor, Soldier, Spy to The Honourable Schoolboy, to Smiley’s People, she realizes that not much separates the British spymaster George Smiley from his Soviet counterpart, Karla. Their methods and temperament are similar. They are alter egos, the dual faces to the paradoxical craft of intelligence. As a guild within a guild, they have more in common with each other than they do with the lesser members of their organizations. They are lonely. Le Carré may not be popular with case officers because he holds up a mirror to their duplicitous profession. Consider Alec Leamas’s self-reflection at the end of The Spy Who Came in from the Cold: “What do you think spies are: priests, saints and martyrs? They’re a squalid procession of vain fools, traitors too, yes; pansies, sadists and drunkards, people who play cowboys and Indians to brighten their rotten lives. Do you think they sit like monks in London balancing the rights and wrongs?”51 By contrast, some case officers may prefer the tidiness of a James Bond movie. There, in a glamorous setting, with women in various stages of undress, it is obvious to all who the good guys are and who the bad guys are. But for the rest of us, that clear casting of black and white from the movies does not convey the dull gray of what intelligence officers do in the shadows. For that, le Carré has penetrated deeper into the soul of the spymaster than Ian Fleming has. For espionage, the truth is multifaceted and contradictory, and it is not susceptible to straight rules and regulations.

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If the spymaster has a soul, it must be a mystical one, a balancing of dualities and contradictions that goes beyond the conventional formulas of ordinary faith. His morality goes beyond good and evil. One might attempt a regulation that states that our case officers are good and that theirs are bad, but that would be risible to case officers and citizens with any selfawareness. Further, that would not lend itself to anything close to a loose international consensus, which, at a bare minimum, is necessary for the regulation to become international law. Slavery is wrong—on that there is an international consensus.52 The only consensus that exists concerning espionage is that sometimes it is right and sometimes it is wrong; it all depends on the circumstances. While paradox is acceptable in poetry, it is not a solid foundation for international conventions and treaties.

Domestic Activities and Foreign Activities The U.S. system separates domestic intelligence and foreign intelligence. Since September 11, in both the domestic and foreign spheres, countering terrorism has been our top priority. Threats to U.S. national security exist outside the United States in the form of radical Islamic groups and possibly inside the United States in the form of sleeper cells and sympathizers. Outside the United States, the CIA takes the lead. The CIA, however, by its charter and executive orders, is prevented from taking on an “internal security” function.53 This prohibition was supposed to allay fears of an allencompassing security institution. Inside the United States, therefore, the FBI and the relatively new Department of Homeland Security are the lead agencies. Yet the lines between the domestic front and the foreign front are not always clear. The CIA is permitted, for example, to gather information that relates to threats to its domestic facilities. Such an exception, if interpreted too expansively, could erode the rule against the CIA operating on U.S. soil. Further, as the FBI expands the number of its overseas offices— through legal attachés in various U.S. embassies—the lines between the CIA and the FBI will blur even more. The U.S. system seeks both competition and cooperation from its intelligence agencies. Two prominent areas of overlap and turf battles54 are counterintelligence and the debriefing of Americans who have traveled overseas. The trend since September 11 has been to attempt to break down the wall between the CIA and the FBI so that the agencies share more information and personnel. This breaking down of walls, aided by the Patriot Act55 and a decision from the Foreign Intelligence Surveillance Court of Review,56 while good for operations, may well create imbalances in the protection of civil liberties.

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Democracies are reluctant to concentrate too much of the intelligence function within one agency. Such concentration, even if it leads to more effective intelligence gathering, creates too much temptation for political leaders to use the security services against their political opponents. What we fear is something far worse than Richard Nixon’s “enemies list” of those who were to receive extra attention from the Internal Revenue Service. We fear the dirtiest tricks. A concentrated or consolidated intelligence function is, after all, a hallmark of oppression, more in line with the Cheka or the KGB than with the checks and balances of limited government. This reluctance to concentrate the intelligence function manifests itself in the United States in a split between domestic and foreign intelligence activities. Of course, even countries that do have a consolidated service (for instance, the former Soviet Union) usually separate their divisions for domestic security (more a police function) and foreign operations (the stuff of classic espionage). But the divisions in consolidated services occur within one agency, while the divisions in the intelligence services of democracies result in separate agencies that have their own leaders and different charters. Most developed countries attempt to gather foreign intelligence, whether they do so through a consolidated service or a separate foreign service. Almost every developed country participates in the great intelligence game. From the perspective of each state’s interest, it would be irresponsible to opt out of the game. The world is simply too dangerous for national leaders to turn a blind eye to external threats. The need for intelligence about one’s neighbors and their political, military, and economic developments is paramount. In a faster and more integrated world, states can lose their competitive edge very quickly. As one country achieves a breakthrough in technology, another country closes the technological gap through statesponsored theft. In a dog-eat-dog competition, even friends and allies spy on each other. Loyalty, if there is any, is to national interests, not to the international interest. Until the system of nation-states is replaced, until regional and international integration really take hold, intelligence services will be around to do their states’ bidding. National intelligence services are far from being integrated into regional command, such as with NATO’s military model, or into an international peacekeeping function under, for instance, the auspices of the United Nations. Intelligence, along with the military, the economy, culture, and sports, remains just one more arena for national competition. In the world’s intelligence community, foreign intelligence services are most affected by the laws of other countries, and foreign intelligence services would be most affected by any international law or convention on intelligence activities. While domestic services fish in home waters, foreign services travel across boundaries and obstacles to fish in foreign waters. The CIA, like the foreign services of other countries, operates on every continent.

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To do their jobs, the CIA and the FBI cannot limit themselves to domestic sources of information about foreign threats. When they seek accurate information about Iran’s nuclear programs, sources in Tehran will be more useful than those in San Diego. A general rule of espionage is that the nearer the source is to the information it provides, the more valuable the information. On-site human sources can reveal the intentions of a country’s leaders in a way that distant satellites cannot; those sources can get into the very minds of the officials. During the Cold War, the CIA sought sources in the Politburo. In the run-up to the Second Gulf War, the CIA scrambled for sources in Saddam Hussein’s inner circle. Now, most potential Iranian assets with access to valuable information live in Iran, but the lack of a U.S. diplomatic presence in Iran makes recruiting assets there difficult. Fortunately, some Iranians—scientists and engineers and others—travel to the United States, a more promising place for the CIA or the FBI to pitch them. Allowing Iranian scientists and engineers into the United States exposes another duality of espionage. From a counterintelligence perspective, it is a risk to let these people into the country because they could conduct terrorist acts here or gather information they could use against us when they return home. From an intelligence perspective, however, having them here makes it easier for the FBI and the CIA to assess, develop, and pitch them as spies. Similarly, if the FBI and the CIA identify a traitor in their ranks, law enforcement officers might push for the traitor to be prosecuted in the interests of deterrence and retribution, while intelligence officers might try to use the traitor against the service that recruited him, feeding disinformation in a triple-agent operation. In the final analysis, nothing is clear-cut in espionage. Sometimes white seems like black and black seems like white. Sometimes white is white and black is black. Returning to the Iranian example, the CIA cannot be binary in its activities. Some Iranians may travel to third countries, never setting foot in the United States. Wherever the potential sources wander, the case officers must follow, carrying the necessary bait, lures, and rods to hook and reel them in. Espionage is thus the ultimate form of fishing. To twist this metaphor, one must always remember that while CIA case officers are trying to hook sources, fishermen from other services are trying to hook our case officers. In the sea of possible sources, a case officer is a big catch because she usually has a bellyful of sources and smaller fish. An even bigger fish than a case officer would be the head of another service or another state.57 Although the languages and home ports for the world’s intelligence services are different, the principles of espionage are shared in common. Tradecraft—whether practiced by Americans, Britons, Israelis, Russians, Italians, or others—is much the same. At bottom, each service is trying to obtain access to other countries’ secrets. The more sensitive the secret,

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the more highly placed the “catch,” the more valuable it is to the service. “Friendly services” trade information they have gathered in “liaison operations.”58 Sometimes even enemies make deals.59 To paraphrase John le Carré, the international intelligence community is a trading pit for secrets, open twenty-four hours a day, every day of the year, on every continent.60 Within that global market, nothing is barred. Nothing prevents us from spying on our enemies and nothing prevents friendly services from spying on each other. The Israeli recruitment of Jonathan Pollard when he was with the U.S. military is a case in point. Almost all is fair game in espionage. The Israelis may forthrightly “declare” their intelligence officers to U.S. authorities in the Washington embassy—and then sneak in additional officers under deeper cover. Sometimes services are split beyond the traditional divide between domestic and foreign intelligence functions. The United Kingdom and the United States, for example, both further divide the domestic function, though they do so differently. While the American FBI houses law enforcement and intelligence activities, the British separate law enforcement (namely, Scotland Yard) from the gathering of domestic intelligence (through MI5). This separation, which is not uncommon in the rest of western Europe, has inspired many calls for reform in the United States, especially from those who believe the FBI will never adapt to its new role of preventing terrorist attacks.61 Inner Divisions The CIA gathers foreign intelligence primarily from operations outside the United States. So for the CIA, the “spy-versus-spy” aspect of espionage occurs when officers in the Directorate of Operations operate on foreign soil against the counterintelligence branches of other countries. In this regard, some cities have been recognized as international centers for spying: Berlin, Vienna, London, Lisbon, and others. Spy novels and movies, for this reason, are accurate on a basic point: Wherever influential people go, case officers will follow. Wherever case officers go, other case officers will follow. Outside the United States, the CIA is mainly on offense, prowling for information. Back at headquarters in McLean, Virginia, the CIA is often on the defense. There the many CIA employees and other government officials with access to classified information work together to coordinate and assist their colleagues in the field on foreign operations. Meanwhile, opposing intelligence officers in the American field might be searching for secrets under the cloak of diplomatic immunity or, even more dangerously, lurking well outside diplomatic circles. Wherever the threat originates, the CIA must keep house.

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Because foreign intelligence takes espionage across international borders, it might seem to open up space for customary international law. Although I remain skeptical that international law can reasonably apply to intelligence activities, domestic or foreign, I do recognize that intelligence conventions and treaties might turn their attention to the regulation of foreign activities. One strong draw is that foreign services are more uniform in their conduct than are domestic services. As a parallel, think of the uniformity of Hilton hotels around the world as compared to the diversity of local inns, guesthouses, and bed-and-breakfasts. Scholars other than myself may note this uniformity and feel compelled to impose it even more rigidly on intelligence activities. No matter—for all services, the rules of the game are quite simple: We spy on them while they try to keep us out, and they spy on us while we try to keep them out. In other words, each side plays both offense and defense. The Limits of Law U.S. law is more comprehensive concerning domestic intelligence activities than foreign intelligence activities. In response to the Supreme Court’s decision in Keith,62 which stated that warrantless surveillance of a CIA facility in Ann Arbor, Michigan, violated the Fourth Amendment, Congress passed the Foreign Intelligence Surveillance Act (FISA)63 to regulate the gathering of foreign intelligence within the United States. Under this statute, the executive branch must obtain authorization for searches and electronic surveillance for national security purposes via secret court proceedings. For years, FISA was the exclusive means by which the FBI, CIA, and other U.S. agencies could gather foreign intelligence through searches and electronic surveillance within the United States, until then-president George W. Bush ordered the National Security Agency after September 11 to conduct surveillance of phone calls, e-mails, and other communications suspected to be connected to al-Qaeda without first obtaining warrants through FISA. Note, however, that FISA does not apply to searches and surveillance conducted outside the United States. So although some constitutional protections may accompany U.S. citizens overseas, U.S. law gives its intelligence services a much freer rein when they conduct activities away from the homeland. In short, as one more duality, we tolerate some behavior only so long as it does not occur at home. The CIA, learning from the excesses that were revealed in the Church Committee and other congressional hearings in the mid-1970s, makes great efforts to comply with U.S. law. The CIA’s Office of Inspector General is now active, and the Office of General Counsel has expanded. Even so, the CIA, as a stealer of secrets, is not overly concerned with the laws of other

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countries. In fact, American case officers routinely encourage other people to break the laws of those countries. As a lawyer at the CIA, I helped the agency and its officers to keep their operations, abroad and at home, consistent with the U.S. Constitution, relevant executive orders, and internal regulations. Many of these regulations are classified annexes to public executive orders, only to be seen by those with security clearances. But the CIA cannot snap its fingers and make all the paperwork go away. The statutes and classified regulations, like much else in U.S. law, do not have carve-outs for the CIA; its lawyers work with lawyers in other agencies, who are usually cleared for limited purposes, to accomplish both important and mundane tasks. The CIA, though viewed as a “rogue elephant” by its detractors, is not above all law. To remain in compliance with U.S. law, CIA lawyers must master various legal subfields: ethics, federal contracting rules, and environmental regulations, among others. These lawyers, however, do not need to develop any expertise in the domestic laws of other countries; the CIA takes for granted that its operations will violate an array of foreign laws. Since the CIA conducts global operations, it probably violates the laws of most countries in the UN General Assembly. Similarly, many countries in the General Assembly are currently violating U.S. law, trying to pry our secrets from the public and private sectors. The split between domestic and foreign operations for U.S. intelligence agencies parallels a split in the legal advice the CIA receives: The CIA’s lawyers make great efforts to keep the CIA in compliance with domestic laws, but the same lawyers are blissfully indifferent to foreign laws. Unlike corporate lawyers in New York and Washington, CIA lawyers do not need to retain or consult local counsel to make their international deals happen. Intelligence officers often enter other countries with false documents and under false pretenses. They do not reveal their missions to foreign authorities. If they did, depending on the circumstances, they would be denied entry, returned as personae non gratae, or prosecuted. Intelligence personnel go overseas to assist those who are committing espionage or to convince others to “conspire” against their own countries. It would be difficult, if not impossible, for the CIA to accomplish its mission if it were required to comply with foreign countries’ laws. As necessary, CIA officers overseas break into premises; they lie and steal. That is what we train them to do. They are promoted for conduct that would put them in prison if done in the United States. The hope for the U.S intelligence community is that the beast can be contained. That is, we hope the lawlessness will remain outside U.S. jurisdiction. The CIA’s “black bag” jobs, which it conducts in capitals around the world, are supposed to be off-limits in our own capital. Outside the United States, the CIA prowls the alleys without a leash. Inside the United States,

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the CIA is supposed to behave as a domesticated animal. As we learned during Watergate, however, sometimes CIA officers stray from the leash. Among the Watergate burglars was a former CIA officer, E. Howard Hunt. And since September 11, many fear the CIA has strayed even further. Espionage Statutes U.S. statutes reflect the domestic/foreign duality of espionage. If an employee is caught carelessly walking out of CIA headquarters with a top-secret document, he may lose his security clearance and his job. If an employee walks out of Langley, not out of carelessness, but with the intent to sell the document to a foreign intelligence service, he will have stepped into the purview of treason and the espionage statutes.64 Because traitors are treated harshly, he will be risking his life. On the other hand, if an American case officer can enter FSB65 headquarters in Moscow and walk out with secret Russian documents, he will receive enthusiastic praise and a medal from his colleagues. The act of walking out with a document is the same, but depending on the intent and on the location, the consequences can be quite different. It is possible for U.S. espionage statutes to be amended to have full extraterritorial effect; the United States could make it a crime for its citizens to steal military, diplomatic, and intelligence secrets from other countries. But the reward for such self-righteousness would be mockery and disbelief. Other states would not then preclude their intelligence services from stealing secrets from foreigners and foreign governments. Even if they took that step, they would not enforce the preclusion. U.S. espionage statutes could be extended in a more limited fashion to private citizens, keeping personal frolics separate from authorized missions. Accordingly, a private citizen who did not have authorization from the U.S. government could be prosecuted for stealing a document from the FSB. Yet, again, I doubt that other countries would reciprocate by extending their espionage statutes to cover the stealing of American secrets by their private citizens. As the United States is not likely to constrain itself in ways that others will not, I doubt that even this limited extension of the espionage statutes has a chance of reaching international consensus. Extraditable and Nonextraditable Offenses The transfer of suspects and convicts from one country to another can be undertaken formally, through the courts and foreign ministries of the sending and receiving states (extradition), or informally, without the courts (irregular or extraordinary rendition). Under customary international law, states may have some duty to cooperate on extraditions.66 Extraditions

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are usually conducted according to bilateral or multilateral treaties. These treaties spell out the great discretion sending states have in turning down a request for extradition. The treaties usually require that the criminal offense that serves as the basis for the request be a crime in the sending country as well. Thus, states may refuse to extradite a suspect to the United States if the only charge is a violation of the Foreign Corrupt Practices Act,67 a statute that does not exist in comparable form in many other jurisdictions. Further, the treaties usually provide that a suspect will not be extradited for a “political offense.” The United States has, for example, refused to extradite Irish suspects accused of taking part in IRA activities back to the United Kingdom.68 Extradition treaties therefore provide some evidence of crimes that have reached the level of international consensus. For the purpose of this essay, we might ask whether suspects accused of espionage are readily extradited from one country to another. If they are, that would suggest an international consensus on the criminality of espionage. If they are not—and espionage is treated more like a political offense—that would suggest international disagreement or a contradiction between domestic norms and international norms. That contradiction would help prove this essay’s thesis. By now, it should come as no surprise that some proof is already there.69 In the case of Abu Omar, for example, the Italians are seeking the extradition of CIA officers not for committing espionage in Italy, but for allegedly kidnapping the radical Muslim cleric from the streets of Milan.70 Kidnapping, but not espionage, is an international crime. Legals and Illegals International law does affect one aspect of international espionage. Some case officers, pretending to be employed by some agency other than their intelligence service, travel overseas under diplomatic immunity. They are declared as diplomats to the receiving country’s foreign ministry and placed on the diplomatic roster. If diplomats are caught performing espionage (which is not, of course, on the Vienna Convention’s list of permitted diplomatic activities), the worst that can happen to them, pursuant to the Vienna Convention, is that the receiving country can declare them personae non gratae and expel them from the country.71 During the Cold War, expulsion of Soviet case officers from the United States often led to Soviet reprisals. In the practice of international espionage, this is a common practice of tit for tat.72 Diplomatic immunity therefore protects both legitimate diplomats and case officers posing as diplomats from being ensnared by the domestic laws of the receiving country. Separate from espionage, think of a legitimate diplomat who, in a drunken state, kills a pedestrian on the streets of Wash-

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ington, D.C. Unless his home country waives his immunity, the United States could not prosecute him. Even so, diplomatic immunity does not legalize what he has done; on his return home, he might be prosecuted for what most people would recognize as a wrong. Espionage has a different nuance. Diplomatic immunity does not legalize the case officer’s practice of espionage. But if a case officer is caught and returned home, at most he will be punished in an administrative setting for professional incompetence. He will not be criminally charged for doing his job. Affording a case officer diplomatic protection has disadvantages, however. To have diplomatic immunity, he must be on the receiving country’s diplomatic roster. The receiving country’s intelligence and security services routinely assume, unless confirmed otherwise, that everyone on the list, no matter the formal designation, is an intelligence officer. As a part of standard tradecraft, they will check his background and conduct surveillance. The FBI, which has primary counterintelligence responsibility within the United States, does this with diplomats who are declared to the State Department. The scrutiny and surveillance obviously make it difficult for the case officer to conduct his espionage business. Diplomatic immunity therefore limits his effectiveness. For this reason, many intelligence services place case officers into foreign countries without diplomatic immunity. Those officers do not stand out as diplomats, making it easier for them to maintain some cover for their intelligence activities. Far away from their embassies, they can pretend to be business consultants, members of nongovernmental organizations, or tourists.73 In the parlance of international espionage, those without diplomatic immunity are often labeled “illegals.” Properly understood, this labeling should not create any confusion about the effects of domestic or international law on espionage. Any case officer’s activities, whether done under diplomatic immunity or not, are illegal in the receiving country. The simple difference between the “illegal” and the “legal” is that, if caught, the former may be prosecuted abroad while the latter may not. Even so, some states acknowledge at a later date illegals who have been caught and prosecuted in other states, and their returns are negotiated. Not all illegals are left to rot, disavowed as intelligence officers or facilitators. For example, after the Soviets shot down a U-2 aircraft in 1960, President Dwight D. Eisenhower put aside a CIA cover story about weather problems and eventually acknowledged that the pilot, Francis Gary Powers, was performing a surveillance mission. In 1962 the United States negotiated Powers’s release to the United States in a trade for the Soviet illegal Rudolf Abel, who had been captured by U.S. authorities. Like Powers, a captured illegal case officer can become a bargaining chip in negotiations between states. The two states, as occurred more than once between the United States and the Soviet Union during the Cold War,

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can trade illegals and dissidents, and those trades can lead to dramatic exchanges in places like Berlin. Those trades are, at a minimum, a tacit acknowledgment that the traded person was an intelligence officer or someone important enough to justify the home country’s interest in participating in the trade.

FINAL VERSES Around and around we go with the second-oldest profession. What we do to them is “gathering intelligence”—something positive, worthy of praise. What they do to us is “performing espionage”—something negative, worthy of punishment. But without the negative sign that depends on the circumstances, X equals X. Gathering intelligence is just the flip side of performing espionage, and performing espionage is just one part of a country’s broader effort for survival. Beyond any international consensus, countries will continue to perform espionage to serve their national interests. Negative or positive, it all depends on who does what to whom. International law does not change the reality of espionage. *** I thank Josh Bobich, Janine Luhtala, and Erin Sindberg Porter for taking care of the footnotes.

NOTES 1. Mowlana Jalaluddin Rumi, “The Reed Flute’s Song,” in The Essential Rumi, trans. Coleman Barks (San Francisco: HarperCollins, 1997), 19. 2. Werner Heisenberg, “The Physical Content of Quantum Kinematics and Mechanics,”in Quantum Theory and Measurement, ed. John Archibald Wheeler and Wojciech Hubert Zurek (1927; Princeton, NJ: Princeton University Press, 1984), 62, passim. 3. “State Intelligence Gathering and International Law,” Michigan Journal of International Law, http://students.law.umich.edulmjillbrochure.pdf. 4. G. W. F. Hegel, Philosophy of History, trans. J. Sibree (1837; Mineola, NY: Dover, 2004), 19. 5. Hegel’s supporters might incorporate my antithesis as part of his process so that I would be proving him at the same time I attempt to refute him. I would then define myself by what I negate. 6. See “Conversation Between M. O’C. Drury and Ludwig Wittgenstein (Autumn 1948),” in Recollections of Wittgenstein, ed. Rush Rhees (New York: Oxford University Press, 1984), 97, 157, in which Drury recounts a conversation with the grand Austrian: “We talked for a time about the history of philosophy. WITTGENSTEIN:

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Kant and Berkeley seem to me to be very deep thinkers. DRURY: What about Hegel? WITTGENSTEIN: No, I don’t think I would get on with Hegel. Hegel seems to me to be always wanting to say that things which look different are really the same. Whereas my interest is in showing that things which look the same are really different. I was thinking of using as a motto for my book a quotation from King Lear: ‘I’ll teach you differences.’ [Then laughing:] The remark ‘You’d be surprised’ wouldn’t be a bad motto either.” 7. Ludwig Wittgenstein, Tractatus Logico-Philosophicus, trans. C. K. Ogden (1921; New York: Routledge, 1998), § 7. 8. One would be left to wonder whether the nobility of the trade is tied to its danger. 9. The National Security Act of 1947, 50 U.S.C. § 413b(e) (2000). 10. Ibid. 11. In the future, covert action may take the form of “information warfare,” that is, attempting to disrupt or shut down an enemy through attacks on its computer networks. 12. Dana Priest, “Covert CIA Program Withstands New Furor: Anti-Terror Effort Continues to Grow,” Washington Post, 30 December 2005. 13. Exec. Order No. 12,333, pt. 3 § 3.4, 3 C.F.R. 200 (1982), reprinted as amended in 50 U.S.C. § 40 I note (2000 & Supp. ill 2003). 14. National Security Act of 1947, Pub. L. No. 80–253, ch. 343, § 102(a), 61 Stat. 497 (1947) (current version at 50 U.S.C. § 403 [2000 & Supp. Ill 2003]). 15. 50 U.S.C. §§ 403a-s (2000). 16. The Hague Regulations call this the “zone of operations.” Convention Respecting the Laws and Customs of War on Land, Annex: Regulations Concerning the Laws and Customs of War on Land art. 29, Oct. 18, 1907, 36 Stat. 2277. The Additional Protocol calls this the “territory controlled by an adverse party.” Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts art. 46(2), June 8, 1977, 1125 U.N.T.S. 3. The distinctions between these notions of “enemy lines” are not significant to the conclusions of this essay. Suffice it to say that the scout or spy has been caught on the wrong side of the lines. 17. Richard A. Falk, foreword to Essays on Espionage and International Law, ed. Roland J. Stanger (Columbus: Ohio State University Press, 1962), v. 18. In my article about the Totten doctrine, by which courts refuse to reach the merits of disputes that relate to secret agreements for secret services, I have already expressed a view about the legality of espionage. A. John Radsan, “Second-Guessing the Spymasters with a Judicial Role in Espionage Deals,” Iowa Law Review 91 (2006): 1259, 1277–78 (“A particular embarrassment to the government from confirming or revealing the details of an espionage relationship, as opposed to other categories of classified information, is that espionage is illegal and has no status under international law.”) As noted in this essay, the actual spy has definitely committed crimes in the country where he operates, and, in that sense, espionage is illegal. To say that espionage “has no status under international law” is a less artful expression than what I have said in the text that accompanies this footnote. And even if I got something wrong as a passing reference in another article, it would be silly and stupid of me not to admit my mistake, to correct it, and to move on.

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19. See Geoffrey B. Demarest, “Espionage in International Law,” Denver Journal of International Law and Policy 24 (1996): 321. 20. Ibid. 21. Ibid. 22. Ibid., 347. 23. Ibid. 24. Ibid., 348. 25. Ibid., 347–48. 26. Roger D. Scott, “Territorially Intrusive Intelligence Collection and International Law,” Air Force Law Review 46 (1999): 217, 218. 27. Ibid. 28. Ibid., 224. 29. Ibid., 225. 30. Ibid., 226. 31. Manuel R. Garcia-Mora, “Treason, Sedition and Espionage as Political Offenses under the Law of Extradition,” University of Pittsburgh Law Review 26 (1964): 65, 79–80. 32. Demarest, “Espionage in International Law,” 338 (citing Quincy Wright, “Espionage and the Doctrine of Non-Intervention in Internal Affairs,” in Essays on Espionage and International Law). 33. Ingrid Delupis, “Foreign Warships and Immunity for Espionage,” American Journal of International Law 78 (1984): 53, 67. 34. Ibid., 68. 35. See ibid. 36. Daniel B. Silver, “Intelligence and Counterintelligence,” in National Security Law, 2nd ed., ed. John Norton Moore and Robert F. Turner, rev. and updated by Frederick P. Hitz and J. E. Shreve Ariail (Durham, NC: Carolina Academic Press, 2005), 935, 965. 37. Ibid. 38. Christopher D. Baker, “Tolerance of International Espionage: A Functional Approach,” American University International Law Review 19 (2004): 1091, 1092. 39. Ibid., 1105. 40. Simon Chesterman, “The Spy Who Came in from the Cold War: Intelligence and International Law,” Michigan Journal of International Law 27 (2006): 1099–1100. 41. Ibid., 1101–8. 42. Ibid., 1109–20. 43. Ibid., 1120–26. 44. Law enforcement officers must also master these skills to the extent they run undercover operations (for instance, penetrating organized crime groups). 45. See Joseph E. Persico, Roosevelt’s Secret War (New York: Random House, 2001), 203, describing how MI5 turned its captured German spies during World War II, a thought that “never entered [President Roosevelt]’s head” when eight Germans were captured on American soil in 1942. 46. Both Ames and Hanssen, after accepting plea bargains, are serving life sentences. See, e.g., Eric Lichtblau, “Former Air Force Analyst Convicted in Spy Case,” New York Times, February 21, 2003 (discussing the plea bargaining and sentencing

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of Robert P. Hanssen); David Johnston, “How the F.B.I. Finally Caught Aldrich Ames,” New York Times, 27 January 1995 (discussing the capture and fate of Aldrich Ames). 47. See, e.g., Richard Helms and William Hood, A Look over My Shoulder: A Life in the Central Intelligence Agency (New York: Random House, 2003), 131–32. 48. Pete Earley, Confessions of a Spy: The Real Story of Aldrich Ames (New York: Putnam, 1998), 203–5, 347–50. 49. Jim Hoagland, “Spooking the CIA,” Washington Post, 21 November 2004. It is widely believed that Angleton borrowed this phrase from the T. S. Eliot poem “Gerontion,” even though he claimed to have coined it. David C. Martin, “The Origin of Quotes” [letter to the editor], New York Times Book Review, 6 July 1980. 50. Joseph J. Trento, The Secret History of the CIA (Roseville, CA: Prima, 2001), 283–86. 51. John le Carré, The Spy Who Came in from the Cold (New York: CowardMcCann, 1963), 246. 52. E.g., U.S. Constitution, amendment XIII, § 1; Universal Declaration of Human Rights art. 4, G.A. Res. 217A (III) [line 2], U.N. GAOR, 3d Sess., 1st plen. mtg., UN. Doc A810 [line 3] (10 December 1948); see also Vienna Convention on the Law of Treaties art. 53, May 23, 1969, 1155 U.N.T.S. 331, 344 (explaining that “[a] treaty is void if at the time of its conclusion, it conflicts with a peremptory norm of international law”); ibid. art. 64 (explaining that the principle of jus cogens, or peremptory norms, places increasing limitations on state behavior in regards to human rights); Restatement (Third) of Foreign Relations Law § 702 (1987). (“[A] state violates international law [jus cogens] if, as a matter of state policy, it practices, encourages. or condones (a) genocide; (b) slavery or slave trade; (c) the murder or . . . disappearance of individuals; (d) torture . . . ; (e) prolonged arbitrary detention; [or] (f) systematic racial discrimination.”) 53. 50 U.S.C.A. § 403–4a(d)(1) (West Supp. 2006) (“The . . . Agency shall have no police, subpoena, or law enforcement powers or internal security functions”), emphasis mine; see also Exec. Order No. 12,333, 46 Fed. Reg. 59941, 59945 (1981) (“[T]he CIA shall: [c]onduct counterintelligence activities outside the United States and, without assuming or performing any internal security functions. . . .”), emphasis mine. 54. For a description of the CIA-FBI rivalry, see generally Mark Riebling, Wedge: From Pearl Harbor to 9/11—How the Secret War between the FBI and CIA Has Endangered National Security (New York: Simon & Schuster, 2002). 55. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, Pub. L. No. 107–56, 115 Stat. 272, §§ 201–25 (2001). 56. In re Sealed Case No. 01–002, 310 F.3d 717, 734–36 (FISA Ct. Rev. 2002). 57. Many in the Middle East have speculated that some of their leaders are on the CIA payroll. 58. The United States and the United Kingdom have a special relationship that dates from the British role in establishing the U.S. Office of Strategic Services during World War II. See generally Christopher Andrew, For the President’s Eyes Only: Secret Intelligence and the American Presidency from Washington to Bush (New York: HarperCollins, 1996), 1–2, 131–35, discussing the admiration President Franklin Delano Roosevelt had for British intelligence operations. “Roosevelt’s most important

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personal contribution to the development of the wartime intelligence community, apart from the creation of the OSS, was to approve intelligence collaboration with Britain on an unprecedented scale” (135). 59. For example, although Syria causes the United States much trouble in the Middle East, it has been reported that the Syrian services, in a program of extraordinary rendition, have cooperated with the CIA in the aggressive interrogation of suspected terrorists. See Jane Mayer, “Outsourcing Torture: The Secret History of America’s ‘Extraordinary Rendition’ Program,” New Yorker, 14 Febuary 2005, 106–7, describing the plight of Maher Arar, a Canadian national, who was rendered to Syria for interrogation because the U.S. government suspected him of being a terrorist. 60. Trailer interview with John le Carré, Tinker, Tailor, Soldier, Spy (Acorn Media, 2004). 61. See Richard A. Posner, Preventing Surprise Attacks (Lanham, MD: Rowman & Littlefield, 2005), 169–97, discussing hurdles to the FBI becoming a proficient domestic intelligence service. See also William E. Odom, Fixing Intelligence: For a More Secure America, 2nd ed. (New Haven, CT: Yale University Press, 2003), 180–82, suggesting the creation of a U.S. domestic intelligence service similar to the United Kingdom’s MI5. 62. United States v. U.S. Dist. Court (Keith), 407 U.S. 297 (1972) (referred to as Keith case after the first judge to hear it, Damon J. Keith). 63. Pub. L. No. 95–511, 92 Stat. 1783 (1978) (codified at 50 U.S.C.A. §§ 1801– 62 (West 2006)). 64. E.g., 18 U.S.C. §§ 793–98 (prohibiting the collection, transfer, sale, or loss of “defense information” for the purpose of using the information either to injure the United States or benefit a foreign nation); Economic Espionage Act, Pub. L. No. 104–294, no 110 Stat. 3488 (codified as amended at 18 U.S.C. §§ 1831–39) (2006) (prohibiting the collection, duplication, possession, transfer, or sale of trade secrets for the purpose of using the trade secret to benefit a foreign nation or anyone other than the United States); 50 U.S.C. § 783(b) (2006) (prohibiting the receipt or attempted receipt by a foreign agent of classified information from any U.S. government officer or employee). 65. The Federal Security Service (FSB) of the Russian Federation is a successor to the KGB. 66. See Hernan de J. Ruiz-Bravo, “Monstrous Decision: Kidnapping Is Legal,” Hastings Constitutional Law Quarterly 20 (1993): 833, 853, stating that customary rules of international law pertaining to extradition have emerged through the execution of hundreds of extradition treaties between countries; even if certain provisions common to such treaties are not included in a particular treaty, “they still exist as rules of international customary law.” 67. Pub. L. No. 95–213, 91 Stat. 1494 (1977), as amended by the Foreign Corrupt Practices Act Amendments of 1988, Pub. L. No. 100–418, 102 Stat. 1415 (1988). 68. See, e.g., United States v. Duggan, 743 F.2d 59 (2d Cir. 1984). 69. See Garcia-Mora, “Treason, Sedition and Espionage,” 83 (“[T]he point is generally accepted that treason, sedition and espionage fall in the category of purely political offenses . . . since they affect the peace and security of the State without in any way violating the private rights of individuals”).

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70. “Former CIA Operative Refuses to Cooperate in Rendition Case,” Chigago Tribune, 10 January 2007, reporting that an Italian prosecutor has requested extradition of CIA suspects, but the Italian government has not yet ruled on the request. 71. Vienna Convention on Diplomatic Relations art. 9(1), Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95. There is some indication that a few state authorities have prosecuted foreign “diplomats” for espionage, not considering the spy activities to fall within the scope of “official functions” protected by diplomatic immunity. Swiss authorities, according to Joan Donoghue, prosecuted “a former diplomat who had allegedly committed espionage while accredited to Switzerland.” Joan E. Donoghue, “Perpetual Immunity for Former Diplomats? A Response to ‘The Abisinito Affair: A Restrictive Theory of Diplomatic Immunity?’” Columbia Journal of Transnational Law 27 (1989): 615, 627. This Swiss example is the exception, not the rule. Such prosecution invites retaliatory prosecution by other countries, something that goes against broad protection for diplomats for real or trumped-up charges. 72. See Chesterman, “The Spy Who Came in from the Cold War,” 1089; Christopher Marquis, “Striving to Punish Cuba, U.S. Expels 14 of Its Diplomats,” New York Times, 14 May 2003; David Rohde, “Indian Diplomats Expelled,” New York Times, 24 January 2003; Paul Lewis, “France Ousts 3 Soviet Diplomats It Calls Spies,” New York Times, 3 April 1987; Seth Mydans, “Moscow Expels an American Diplomat as Spy,” New York Times, 15 June 1985; Bernard Gwertzman, “Afghans Expel 2 U.S. Diplomats,” New York Times, 16 September 1983; and Serge Schmemann, “Soviet Orders a U.S. Diplomat Expelled on Charge of Spying,” New York Times, 5 June 1983. 73. Michael T. Clark, “Economic Espionage: The Role of the United States Intelligence Community” [comment], Journal of International Legal Studies 3 (1997): 253, 267–68, discussing potential advantages of using intelligence sources not connected to official cover.

11 Torture and the Medical Profession Steven Miles

In November 2003 an Iraqi guard smuggled a Chinese pistol into Abu Ghraib and gave it to a prisoner, Ameen Saeed al-Sheikh. An informant promptly told MPs, who locked down the cell block and began a cell-tocell search. When they got to his cell, al-Sheikh went for the pistol hidden in his bedding. Gunfire was exchanged. Sergeant William Cathcart was hit, but not injured, by a ricochet. The soldiers wrestled al-Sheikh to the floor and sent him to the hospital with a dislocated shoulder and shotgun wounds to his legs.1 When al-Sheikh returned to the cell block after several days in the hospital, Specialist MP Charles Graner beat his wounded leg with a baton while demanding that the prisoner renounce Islam. He then suspended al-Sheikh by his injured shoulder even though the prisoner’s wounded legs could not bear weight to protect the shoulder from further injury.2,3 Staff Sergeant-Medic Reuben Layton and another medic saw the beating while providing health care in the cell block.4,5 On three occasions, Layton found al-Sheikh handcuffed with his arms over his head, putting stress on his injured shoulder and leg. Each time, he says, he told Graner to remove the handcuffs. Layton considered that to be the extent of his responsibility; he stated, “I feel I did the right thing when I told Graner to get the detainee uncuffed from the bed.” Under oath, Layton said that he examined al-Sheikh in his cell with two officers, a Captain Williams and a physician named Ackerson who held the rank of lieutenant colonel, to confirm that al-Sheikh had a dislocated shoulder from having his arms handcuffed over his head in his cell. Investigators do not record looking at, or for, the medical record of this examination. There is no evidence that any of these persons reported or tried to stop the abuse, either.6,7 Months later, an Abu Ghraib investigation recommended that Layton be disciplined for 172

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failing to stop or report the ongoing abuse.8 The released file says nothing about any scrutiny of Ackerson. On a cold night, another medic, Sergeant Theresa Adams, saw al-Sheikh naked and without a mattress or a blanket. The prisoner was bleeding from a drain that should have been connected to a bag to prevent an infection. Adams took al-Sheikh to see the physician on call, who held the rank of colonel. The physician agreed that the hospital had erred in leaving the catheter open but refused to remove the catheter or to transfer al-Sheikh to the adjoining hospital. Sergeant Adams asked him whether he had ever heard of the Geneva Convention, the physician answered, “Fine, Sergeant, you do what you have to do; I am going back to bed.”9,10 Later, the physician told investigators that he remembered al-Sheikh’s dislocated shoulder but not the catheter incident, although he agreed that such a catheter should have been removed. That physician also claimed that during four months at Abu Ghraib at the peak of the abusive incidents, he never observed or heard of any abuse, although he did recall the Red Cross complaining about the treatment of the prisoners.11 “Torture” comes from the Latin word for “twist,” an origin that conveys both a common technique of bending a victim’s body or the contortion of a person in agony. The torsion and stretching applied by the medieval “strappado,” a ladder-like device that stretched extremities and joints into abnormal and extreme directions, or the shackled “stress positions” widely used in the prisons of the war on terror, epitomize the ancient sense of the word. Torture acquired its present meaning of pain inflicted by government officials in France about eight hundred years ago, when the church or governments applied “the torture” to extract confessions or testimony. The English adopted the French noun in about 1550. In 1591 William Shakespeare is credited with first using “torture” as a verb, in Henry VI: “Alas, master, I am not able to stand alone: You go about to torture me in vain. [Enter a Beadle with whips].”12 However, the many appearances of the verb in the years immediately after the play suggest that the Bard simply recorded an existing colloquial use, rather than originating one. Definitions of torture bear close reading. The UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by, or at the instigation of, or with the consent or acquiescence of a public official or other person acting in all official capacity.”

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Similarly, the World Medical Association’s Guide for Medical Doctors concerning Torture and Other Cruel, Inhuman or Degrading Treating or Punishment in Relation to Detention and Imprisonment defines torture as the “deliberate, systematic, or wanton infliction of physical or mental suffering by one or more persons acting alone or on the orders of any authority, to force another person to yield information, to make a confession, or for any other reason.” Both of the preceding documents and the Geneva Conventions define torture as a government practice rather than as suffering that is inflicted by a criminal sadist. By defining torture in relation to the reasons nations use it (for example, to secure information), they emphasize that torture is not justified by any purpose or rationale. Torture is a crime against humanity, but its occurrence is not confined to war: Many of the 130 governments that practice torture do so while they are at peace. Although it is customary to think of torture as a set of techniques, torture is better understood as a social institution. Torturing societies create laws, policies, and regulations to authorize the practice. They establish, empower, and protect specialized practitioners and places. With fear, incentives, and propaganda, they secure the assent or acquiescence of the press, the judiciary, the professions, and the citizenry. This view of torture as an institution means that moral blame may not be simply laid on the individual soldiers or police who employ horrific techniques. Those officials are agents, acting on behalf of national leaders, public policies, and a social and political consensus. Condemning, convicting, or sacrificing low-ranking soldiers as rogues or bad apples neither eradicates nor expiates the crime. Moral responsibility in a torturing society is broadly shared. Reforms and prevention must look up the chain of command and out into the society at large.

THE CASE FOR TORTURE Governments rationalize torture in various ways. Josef Stalin, Saddam Hussein, and the generals of Argentina’s Dirty War used terror to suppress dissent and maintain political control. Adolf Hitler used anti-Semitism and the eugenic ideology of “race hygiene” to mobilize a political base and justify genocidal policies. Nigeria amputates the hands of thieves to punish (and putatively deter) crime. Submerging women in water to see whether they floated (guilty of witchcraft) or sank (innocent) is perhaps the most notorious use of torture to answer a question independent of a victim’s testimony. The present war on terror rationalizes torture and harsh treatment to facilitate interrogation. In his novel Waiting for the Barbarians, the South African writer J. M. Coetzee has a magistrate define faith in interrogational torture this way: “Pain is truth”13

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There are two general types of coercive interrogation.14 Pain interrogation supposes that a person will tell the truth in order to escape pain. Here, a physician may be asked for advice to prevent a prisoner from dying or to ensure the prisoner remains conscious during questioning. Or a physician might advise on how to decrease the risk of evidential scars or physical disability (the long-term psychiatric consequences of torture, such as posttraumatic stress syndrome, are rarely taken into account). Toward a similar goal of concealing torture, a physician might ensure that medical records or death certificates do not note evidence of trauma. Psychiatric stress interrogation endeavors to cause a prisoner to regress and become psychologically dependent on the interrogator. Such captives supposedly become submissive to the interrogator and thereby less resistant to questioning or less inclined to be deceptive. Here, behavioral scientists, psychiatrists, or psychologists devise plans to psychologically “break” a prisoner without impairing his or her ability to speak the truth. For example, the dose of a barbiturate “truth serum” must be sufficient to relax a prisoner but not so large as to cause an exhausted prisoner to fall asleep or a malnourished prisoner to stop breathing. Alternatively, sensory deprivation must not make a prisoner so psychotic or disoriented that he or she cannot respond to questions. The techniques encompassed by these two incompletely distinguishable approaches vary according to the torturer’s technology and imagination. All are psychologically stressful. Some deprive a prisoner of basic needs. Some cause pain and injury. Most have been used in prisons in the war on terror. In the “Ethical Issues” section of his investigation of the Abu Ghraib abuses, former secretary of defense James Schlesinger wrote, “For the U.S., most cases for permitting harsh treatment of detainees on moral grounds begin with some variant of the ‘ticking time bomb’ scenario. The ingredients of such scenarios usually include an impending loss of life, a suspect who knows how to prevent it—and in most versions is responsible for it— and a third party who has no humane alternative to obtain the information in order to save lives.” Schlesinger continues, An excellent example [of a ticking time bomb scenario] is the case of a 4th Infantry Division battalion commander who permitted his men to beat a detainee whom he had good reason to believe had information about future attacks against his unit. Then the beating failed to produce the desired results, the commander fired his weapon near the detainee’s head. The technique was successful and the lives of U.S. servicemen were likely saved. . . . He was punished in moderation and allowed to retire.15

Schlesinger’s anecdote is incomplete and misleading—disingenuously so in light of the records of an army investigation of this incident completed six months before Schlesinger wrote his report. Those records include an

Table 1. Torture Practices.16,17

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investigative report supported by eight concurring statements by participating soldiers, among them a sworn statement by Lieutenant Colonel Allen West, clearly describing what happened.18,19 West was never trained to interrogate. He had never even witnessed an interrogation. In August 2003 an Iraqi informant said that Yehiya Hamoodi, a Shiite police officer working with West’s unit, was plotting to ambush West and some of his soldiers, At that time, many Iraqis were giving false tips to the U.S. Army to curry favor or to use the army to settle their personal gripes. As a military intelligence training slide show used in Iraq at that time put it, Personal vendettas against different ethnic groups have caused an influx of bogus reporting from interrogators. Recommendation: Tactical patience is critical when taking action to detain host nation personnel during Stability and Support Operation, It is more of an Art than a Science, and usually learned after the unit makes mistakes.20

West promptly sent his soldiers to arrest Hamoodi. They beat and shackled him and loaded him into their vehicle; when they arrived at the base in Taji, Iraq, they threw him off the Humvee. A medic cleared Hamoodi for questioning even though his ribs had been hurt by the beating.21,22 Soldiers took Hamoodi to an interrogation room. West told the interrogators they had one hour to obtain information or he would come down and do it himself. Hamoodi was kicked and beaten by four soldiers for forty minutes. During the latter part of this interrogation, West sat facing the prisoner with a cocked pistol on his lap that he would occasionally point at Hamoodi. West tells how he became increasingly angry and threatened Hamoodi’s life. In a sworn statement, a soldier reported that West told the prisoner, “I have come here for one of two reasons: one, to get the information I need or two,

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to kill you.” A soldier displayed a knife and the translator told Hamoodi that his toes or fingernails would be cut off if he did not tell the truth. An appalled soldier left the room after reminding West of the Geneva Conventions, an appeal West rejected. Finally, West had his soldiers blindfold Hamoodi and escort him outside, where six soldiers surrounded him with guns as the interrogation continued for another fifteen minutes. A translator told Hamoodi, “If you don’t talk, they will kill you.” West counted down from ten and shot into the air. Two soldiers forced Hamoodi’s head into a barrel. West did another countdown and, angling his gun close to the prisoner’s head, fired into the barrel. Hamoodi became hysterical and “admitted there would be attacks and called out names.” A physician’s assistant then examined him and found bruises but no serious injuries or bleeding.23–25 West’s violation of U.S. Army interrogation regulations was investigated and charges were filed against him; West then asked to retire.26,27 Ultimately, he was removed from command, fined $5,000, and allowed to retire with benefits.28,29 Ninety-five congressional representatives wrote a letter on his behalf. He is feted with dinners in the United States.30 Mr. Schlesinger did not report that no plot was found and that the men whom Hamoodi named were released without being charged.31 Hamoodi later told investigators that there was no plot and that he gave untrue information.32 Schlesinger also omitted a troubling epilogue to his story. Three months before the Hamoodi incident and in the same area, Master Sergeant Lisa Girman and several soldiers beat and kicked several prisoners at Camp Bucca. At least one detainee was pinned to the ground while soldiers spread his legs and kicked him in the groin.33,34 Battalion and brigade commanders as well as army lawyers strongly recommended that the soldiers be courtmartialed. A rationale for excusing West and punishing the Camp Bucca soldiers was that West acted to obtain information for the purpose of “force protection,” whereas Girman and her colleagues were simply abusive,35,36 However, the army chose not to prosecute some participants in the Girman matter, and it nonjudicially discharged three soldiers. Why did the Camp Bucca abusers get off with such light sanctions? A company commander told Brigadier General Janis Karpinski, who at that time was in charge of Abu Ghraib, “Ma’am, everybody knows that the reason it didn’t go to court martial was because they were protecting that Lieutenant Colonel” (of whom Schlesinger wrote so approvingly).37 Soldiers from that same unit were not retrained in the rules for treating prisoners, Their unit was transferred to Abu Ghraib.38,39 Five months later, soldiers from that unit were involved in the photographed abuses at Abu Ghraib.40 As Major Michael Sheridan, the commanding officer of the 800th Military Police Brigade at Abu Ghraib, later put it, if those soldiers had “been court martial[ed] . . . you never would have had

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another incident after that. [It] . . . was a crime and [the involved soldiers] should have been made to pay for it.”41 Schlesinger cut and polished the story of West to create a “ticking time bomb” fable for torture. But in his “excellent example,” torture alienated an Iraqi who had been working with U.S. forces, and it arguably contributed to tolerance of torture in the unit that became responsible for the photographed abuses at Abu Ghraib. A similar disregard for the facts shapes accounts of the interrogation of the terrorist Abdul Hakim Murad, who reportedly disclosed a plot to blow up eleven transpacific airliners after being successfully tortured.42 Investigators actually learned of the plot from his computer files, not by torturing him.43 Fictional dramas of the Mission: Impossible and 24 genre present a seductive case for “ticking time bomb” scenarios, with syncopated music, countdown digital clocks, and flashing cutaways to innocent victims, their loved ones, the tense rescuers, and a prettified harsh interrogation. Real interrogations rarely, if ever, contain the combination of elements that must come together for the “ticking time bomb” scenario to be realized. Interrogators rarely know whether a given prisoner has foreknowledge of a specific and imminent crime. Even if a prisoner knows about a future crime, that information is rarely of immediate utility to interrogators. Analysts must fit the prisoner’s knowledge into a larger puzzle, a process that usually takes a considerable amount of time. The “ticking time bomb” scenario resembles an anecdote in Fyodor Dostoyevsky’s novel The Brothers Karamazov. Ivan poses this question to his brother, the young priest Alyosha: Imagine that you are creating a fabric of human destiny with the object of making men happy in the end, giving them peace and rest at last, but that it was essential and inevitable to torture to death only one tiny creature—that baby beating its breast with its fist, for instance—and to found that edifice on its unavenged tears, would you consent to be the architect on those conditions?44

Ivan’s fanciful question is cynically crafted to compel Alyosha to accept the utilitarian conclusion that a baby could be tortured for the sake of social good. The “ticking time bomb” scenario is similarly constructed to justify torture, not to illuminate the moral issues of legalizing torture. Charles Krauthammer, who is a political commentator, a psychiatrist, and a former member of President George W. Bush’s Council on Bioethics, writes, “If you have the slightest belief that hanging this man by his thumbs will get you the information to save a million people, [not] only is it permissible to hang this miscreant by his thumbs, it is a moral duty. . . . And even if the example I gave were entirely hypothetical, the conclusion [that] in this case even torture is permissible . . . establishes the principle. . . . [To] paraphrase George Bernard Shaw, all that’s left to haggle about is the price.”45 Krauthammer smoothly glides from his justification for torture to prevent a

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nuclear attack, to using torture to identify a suicide bomber who plans to go into a coffee shop, to torturing an accomplice who may have information about the whereabouts of a single uniformed soldier. His “slightest belief” standard is the political rhetoric that has often been used to rationalize the murder, torture, and disappearance of millions of innocent or ignorant people. An honest inquiry into the wisdom of legalizing torture would build from realistic moral questions for policy makers. Is it justifiable to torture one person to save a thousand innocent lives? Ten? Two? Is it ethical to torture any person allegedly “affiliated” with a criminal group on the assumption that he or she possesses knowledge that can be used to thwart a crime? Should interrogational torture be limited to situations where strong evidence points to an imminent attack, or may it be applied to an inchoate or long-range fear of possible attack? Is it moral to use interrogational torture knowing that most of those questioned will be innocent or ignorant? If so, how should society balance the harms to those people against the good that allegedly comes from torture? Should society compensate or provide therapy to the innocent victims of legal torture? Is it moral to torture a culpable person who is unlikely to give useful information despite being tortured? Is it smart to torture when torture procures false information that swamps the limited resources available for intelligence analysis? Is it wise to employ torture when torture is likely to make our enemies more numerous and harden them against us? Advocates for legal torture have grappled with some of these questions,46 They argue that since the “ticking time bomb” scenario is plausible, however rare, it would be naive, idealistic, and irresponsible to ban the use of torture.47,48 Some propose procedural safeguards (such as torture warrants) by which courts would weigh the gravity or probability of the crime that interrogational torture would endeavor to prevent.49 Some suggest that torture should remain illegal but that courts should allow an after-the-fact “necessity” defense, somewhat like allowing a person to claim the necessity of homicide in self-defense. History does not justify confidence in such measures. Twentieth-century torture has always spread far beyond “ticking time bomb” scenarios to result in the abuse of many innocent or ignorant persons. Societies that torture light the fuse on a real time bomb. It is naive, idealistic, and irresponsible to claim otherwise.

THE CASE AGAINST INTERROGATIONAL TORTURE Torture Harms Intelligence Collection and Analysis The U.S. Central Intelligence Agency’s Clandestine Services Department sponsored eleven years of research on interrogation in Project MK-ULTRA

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during the Cold War.50–52 When MK-ULTRA ended in 1964, the CIA continued the research under Project MK-SEARCH for another decade. The primary aims of this research were (1) to develop ways to train American personnel to resist coercive interrogation and (2) to determine whether the Soviets, Koreans, or Chinese could brainwash prisoners along the lines of Richard Condon’s 1959 potboiler The Manchurian Candidate, in which a POW is programmed to assassinate a U.S. presidential candidate. CIA-funded researchers studied Korean, Chinese, and Soviet interrogation. They conducted about two hundred studies examining the use of hypnosis, stress, electric shock, coma, sensory deprivation, sedatives, hallucinogens (including LSD), drugs that induced symptoms to mimic diseases or disabilities, and sensory deprivation to improve interrogation. The agency destroyed the individual project reports, but Richard Helms, who oversaw the research, testified to Congress that it had been unproductive. A declassified CIA Counterintelligence Interrogation Manual from 1963 refers to MKULTRA’s findings: The threat of death has often been found to be worse than useless. . . . No report of scientific investigation on the effect of debility upon the interrogatee’s power of resistance has been discovered. For centuries, interrogators have employed various methods of inducing physical weakness: prolonged constraint; prolonged exertion, extremes of heat, cold or moisture; and deprivation or drastic reduction of food or sleep. Apparently, the assumption is that lowering the source’s physical resistance will lower his psychological capacity for opposition. . . . Prolonged exertion, loss of sleep, etc., themselves become patterns to which the subject adjusts through apathy. . . . Interrogates who are withholding but who feel qualms of guilt and a secret desire to yield are likely to become intractable if made to endure pain.53

The CIA’s Human Resource Exploitation Manual of 1983 came to the same conclusion: “Use of force is a poor technique. . . . However, the use of force is not to be confused with psychological ploys, verbal trickery, or other nonviolent and non-coercive ruses.” The Army Interrogation Field Manual of 1987 reiterated these same conclusions.54 The governments of Nazi Germany, China, North Vietnam, Great Britain, and Israel also found pain to be an unreliable interrogation technique. As prisoners disintegrate, harden, or dissociate under pain, they tend to give inaccurate, useless, or misleading information. Although American POWs subjected to psychiatric stress by Korean, Chinese, or Soviet captors seemed to be more willing to make anti-American statements while in captivity than those who were tortured with pain, there is no evidence that psychological torture improved the ability to get the truth from a prisoner.55 Advisers to Secretary of Defense Donald Rumsfeld informed him of the research showing the inefficacy of harsh interrogation.56 The secretary then authorized the same harsh techniques that had been discredited by

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the research and experience of the United States. From 2003 to 2004, as poorly trained and inexperienced army interrogators were brutally applying Rumsfeld’s “counterresistance” techniques, experienced interrogators were complaining about the abuses and citing the conclusion of the CIA’s 1983 Human Resource Exploitation Manual (“Use of force . . . can induce the source to say what he thinks the interrogator wants to hear”) as they complained about the army interrogators. FBI interrogation instructor Joe Navarro said that threats “taint information gained from sessions. . . . The only thing that torture guarantees is pain, it never guarantees the truth.”57 Roger Bokroas, a retired military interrogator, tried to stop harsh treatment at Abu Ghraib and later testified, “Whenever you use harsh treatments you are more likely to get false information just to stop the treatment.”58,59 In their Guantanamo interrogation debriefing memos, many FBI agents expressed skepticism of the truth of statements prisoners made under duress.60–65 One FBI interrogator wrote, “He was taken to the ‘dark place.’ At the ‘dark place,’ a hood was placed over his head and he was yelled at and beaten. [Name redacted] stated that because of this treatment at the hands of his captor, he provided the interrogators with whatever information that they wanted to hear.”66 Craig Murray, then the British ambassador to Uzbekistan, sent a diplomatic cable protesting harsh interrogations conducted for the United States: We receive intelligence obtained under torture from Uzbek intelligence services via the U.S. We should stop. It is bad information anyway. Tortured dupes are forced to sign up to confessions showing what the Uzbek government wants the U.S. and UK to believe. . . . I repeat that this material is useless—we are selling our souls for dross.67

False information elicited by pain floods the limited analytic capacity of intelligence agencies. As the CIA’s KUBARK interrogation manual put it, “[P]ain is quite likely to produce false confessions, concocted as a means of escaping from distress. Time-consuming delay results, while investigation is conducted and the admissions are proven untrue.” In this way, harsh interrogation can make it more, not less, difficult for analysts to find “ticking time bornbs.” Torture seeks and tends to elicit information that exaggerates the size and nature of the threat. Such false information can lead to misguided government policies. The CIA illegally flew the al-Qaeda operative Ibn al-Shaykh al-Libi to Cairo. Under torture, he became an authoritative source for what Secretary of State Colin Powell, President Bush, and Vice President Dick Cheney claimed as “credible” evidence that Iraq was training al-Qaeda members in the use of explosives, poisons, and gases. Al-Libi later recanted his inaccurate confessions.68 Torture alienates persons who might otherwise be recruited as informants. As the CIA’s 1983 Human Resource Exploitation Manual put it, “Use

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of force . . . may damage subsequent collection efforts.” Many FBI reports of interrogations with prisoners in the war on terror tell of prisoners who refused to cooperate with interrogators because of harsh, abusive, or degrading treatment meted out to fellow prisoners or themselves.69–79 Some prisoners even experience torture as validating their sense of importance, the rightness of their cause, or, conversely, the evil of their torturer. For example, some Palestinian prisoners tortured by Israelis experienced torture as a rite of passage that bonded them to their cause, confirmed the evil of Israel, and proved their trustworthiness to comrades.80–82 Abusive interrogation fosters an “arms race” between interrogators and prisoners. As targeted groups learn the techniques that will be used against their members, they prepare their colleagues for what to expect. They take measures to limit the amount of damaging information any individual can disclose. As interrogators change in reaction to the strategic moves of prisoners, the targeted organizations adapt again. Effective interrogation seeks to build rapport, articulate common interests, exploit a subject’s jealousy of comrades, or offer in exchange for information something the prisoner sees as being in his or her interest. Torture destroys the possibility of this kind of interview. The abuse hardens the prisoner’s political commitment and perception of the interrogating authority. An interrogator who abuses a prisoner forfeits the emotional self-control that is necessary for effective interrogational interviewing.83 Torture Is Strategically Counterproductive Coercive interrogation is especially ineffective in asymmetrical warfare between a regular army and guerrillas living among an indigenous population of sympathizers who are familiar with the insurgents’ factions and social organizations. Terrorist profiling cannot identify the key persons in such communities.84 Hundreds of citizens have mere bits of knowledge. Dragnets for coercive interrogation are expensive and ineffective. Military intelligence personnel estimate that from 70 to 90 percent of the tens of thousands of Iraqi prisoners were either innocent or ignorant.85–88 Proponents of interrogational torture cite the occasional tactical success of French soldiers who used torture to learn of terrorist attacks during Algeria’s war for independence from France.89 However, those same abuses alienated the Algerian population and fueled the resistance; France lost the war. A similar pattern is unfolding in Iraq. The revelations of abuses in U.S. prisons were followed by a dramatic decline in international respect for the United States and a sharp increase in anti-American sentiment, especially in the international Muslim community.90,91 U.S. government polls found that Iraqi support for U.S. forces fell from 63 percent to 9 percent upon the release of the Abu Ghraib photographs.92 It seems probable that interrogational

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torture in Iraq boosted insurgency recruitment and resulted in far more attacks than it could have prevented. Torture Harms the Society That Employs It Torturing societies harm their courts, their militias, and the officials who torture on their behalf. The Defense Department and the FBI knew that evidence obtained by coercive interrogation could not be used in prosecuting either the person who gave the information or those implicated by that interrogation.93 The inadmissibility of that evidence is part of why the FBI dissociated itself from harsh interrogations.94 The 1983 CIA Human Resource Exploitation Manual asserts: “Torture lowers the moral caliber of the organization that uses it and corrupts those that rely on it as the quick and easy way out.” In 2003 Rumsfeld’s Working Group on Detainee Interrogations warned him that “[p]articipation by U.S. military personnel in interrogations which use techniques that are more aggressive than those appropriate for POWs would constitute a significant departure from traditional U.S. military norms and could have an adverse impact on the cultural self-image of U.S. military forces.”95 Torture psychologically traumatizes the soldiers who perform it. Soldiers who passively witness atrocities, as well as those who commit them, suffer more severe post-traumatic stress disorder than those who kill during combat.96,97 Abu Ghraib medics were providing Prozac and starting Alcoholics Anonymous groups for soldiers in the abusive units.98 It is reasonable to expect painful scars in the soldiers who participated in prisoner abuse. Those wounds will burden their lives, their families, our neighbors, our society, and the Veterans Administration for years to come.

TORTURE AND AMERICAN CULTURE In Regarding the Pain of Others, Susan Sontag wrote that powerful images of violence, pain, or suffering are “like a quotation, a maxim, or a proverb.”99 She noted that the terse captions supplied with such photographs seem to expect the viewer to supply the interpretation a visceral reaction demands. “Prisoners and Guards at Abu Ghraib” was a typical news caption of a photograph of a pyramid of bruised, naked men with their heads in sandbags. Other captions are possible. For a book on medical complicity with torture, the caption might read, “What the nurse saw while working at Abu Ghraib.” Americans are fascinated with images of torture even though we carefully keep its frightful reality at a distance. Our favorite form of voyeurism is fictional torture. Astonishing numbers of American films, television shows, video games, and books are built with the elements of torture. A torturer

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has a twisted sense of entitlement. A victim is isolated and controlled. The techniques are sadistic, violent, terror inducing, and often sexually stimulating to torturer and voyeur alike. The urbane Hannibal Lecter walks with the outlandish Freddy Krueger, the buffoonish Goldfinger, and the executive sociopath Patrick Bateman of American Psycho. This phenomenon is not recent. Exquisite Renaissance paintings depict Christian martyrs posed in orgiastic death throes. Who can forget the terrified monologue that is Edgar Allan Poe’s “The Pit and the Pendulum”? Children’s television is a kindergarten of torture-themed cartoons that, it might be charitably said, recapitulate the plots of trapped and endangered children in the European fairy tales collected by the Brothers Grimm. Madame Tussaud’s Wax Museum, amusement park horror rides, and Halloween houses all offer torture as 3-D entertainment. Fiction is one way to keep torture at a distance; the censorship of images of real torture is another. Movies may show graphic degradation because they are fiction. However, the same corporations that produce those movies primly sanitize torture for their news shows. The Abu Ghraib photographs show brutally beaten bodies, even the faces of corpses, with tastefully pixilated buttocks and genitals. The U.S. government would not release photographs showing the degradation of Iraqi women and children; news organizations that obtained leaked versions declined to show them.100 Only elected officials were allowed to see the Abu Ghraib videos. Given our fascination with torture, it is surprising that no image of torture has acquired the stature of other iconic images of human violence, degradation, and despair. Until Abu Ghraib, no photograph of torture is as instantly recognized as that of the naked, napalm-scared Vietnamese girl Phan Thi Kim Phuc running toward the camera—toward us, who had sent that napalm to her village. That image came to symbolize the cruelty of that war—of war itself. It is not that photographers have been barred from places of torture. The Nazis and the Khmer Rouge kept large photographic archives. Photographs of South American torture victims have been used to humiliate or blackmail victims, extort money from families, or intimidate others. The guards of Abu Ghraib are not the only soldiers to stage “photo opportunities” for personal gratification.101 Even an American medic paused during his work to be photographed pointing an M-16 rifle at a wounded prisoner’s head while making an obscene gesture: He intended to “keep the photo as a souvenir of what I did here in Iraq.”102 The absence of iconic images of real torture is another sign of how carefully we maintain a distance between real torture and our daily life. The Abu Ghraib photographs annihilated that gap with a thunderclap of horror that echoed throughout the citizenry and government. Americans looked at the photographs to see American soldiers looking back at them through the camera lens—not as victims, not as rescuers, but as smiling tormentors.

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Real torture challenges the moral passivity of armchair voyeurs of fictional torture. It does not provide the comforting certainty that the halfhour cartoon, the one-hour police drama, or the two-hour movie will end by uncovering a reason for torture and bringing the perpetrator to justice (usually after some innocent secondary characters are disposed of along the way). Real torture forces the viewer to make a political judgment rather than an artistic evaluation such as “That was a gripping movie.” Although every civilized person at some level condemns torture, each person’s reaction to real torture that penetrates the careful distancing of fictional and foreign torture will vary according to historical perspective and experience. It is ironic that when 60 Minutes televised soldiers’ amateur photographs from Abu Ghraib it forced elected officials, citizens, and the news media to confront the truth of authoritative written reports they had ignored for two years. Even then, some Americans dismissed the photographs. Conservative commentator Rush Limbaugh told his “dittoheads” that the events were like “anything you’d see Madonna or Britney Spears do on stage.”103 Some Americans responded with hostility. People spat on and assaulted a California gallery owner who exhibited Guy Colwell’s paintings depicting scenes from Abu Ghraib prison. Other artists, such as Andres Serrano and Fernando Botero, have incorporated images from Abu Ghraib into their work.104,105 The artist Jenny Holzer projected excerpts from the government’s torture memos on the exterior walls of New York University’s Bobst Library, less than two miles from the site of the fallen World Trade Center towers. An immense, insubstantial pall of dissembling words reflects off an institution epitomizing respect for language and civil society.106 In the Arab world, the images from Abu Ghraib have also provoked powerful responses. In Jordan, Muhammad Shawaqfa’s popular play A New Middle East is staged with prison bars between the audience and the actors. The dialogue contrasts sardonically amused soldiers with anguished victims as the action moves from tableau to tableau, reenacting the Abu Ghraib photographs. A lavishly made Turkish movie, Valley of the Wolves—Iraq, shows American soldiers crashing a wedding and killing the groom along with dozens of guests. A child is shot in front of his mother. The surviving guests are taken to Abu Ghraib, where their organs are taken for rich people in New York, London, and Tel Aviv.107 In Iraq the photographs have inspired street and gallery art. The Muslim cleric Sheikh Mohammed Bashir said of the photographs, It was discovered that freedom in this land . . . is the freedom of the occupying soldiers to do what they like. . . . No one can ask them what they are doing, because they are protected by their freedom. . . . No one can punish them, within our country or their country. They express the freedom of rape, the freedom of nudity and the freedom of humiliation.108

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These diverse reactions to images and text from Abu Ghraib reveal a common revulsion to the abuses even as they show how viewers’ cultural and psychological perspective profoundly shapes their conclusions about the meaning and significance of the images. The American consciousness has been traumatized by these photographs. Like all peoples, we minimize or deny our atrocities: lynching, Jim Crow, the genocide of Native Americans, or the violence that is allowed to occur within our prisons. A century of support for torturing societies in Europe (for example, Great Britain in Northern Ireland), Africa (for example, apartheid-era South Africa), South and Central America (for example, Argentina, Chile, El Salvador, and Guatemala), the Middle East (for example, Israel, Egypt, and Turkey), and Southeast Asia (for example, Vietnam and Indonesia) should temper any American claim to the moral high ground with regard to torture. Even so, the fact that it was allies and proxies who committed such acts allowed the people of the United States to deny or minimize their national complicity. Comforting rationalizations, such as the notion of Realpolitik, essentially said, “Those (brutal, uncivilized) people in (corrupt, unstable, or potentially Communist) countries (always or must) torture; is it not so?” Such distancing left Americans unprepared for how easily the plague could infect the homeland. The Abu Ghraib photographs showed that the United States had become infected. Americans recoiled with new denials. Torture by American soldiers must be a different kind of torture: “torture lite.” It must be an isolated event, the work of a “few bad apples” or a local command breakdown. It surely was a response to unusual provocation; the world changed with 9/11. The prisoners are terrorists by definition; they deserved what they got. None of these denials is true. The United States is a torturing society.

NOTES 1. S. Jordon, sworn testimony, 24 February 2004, Taguba Annex 53: 48–53. 2. J. C. Sivits, sworn statement, 14 January 2004, Taguba Annex 25/26. 3. A. S. Al-Sheikh, sworn statement, 16 January 2004, in Karen J. Greenberg and Joshua L. Dratel, The Torture Papers: The Road to Abu Ghraib (New York: Cambridge University Press, 2005), 522 (partial); entire statement in Taguba Annex 25/26. 4. R. Layton, sworn statement, 14 January 2004, Taguba Annex 25/26. 5. Sivits, sworn statement. 6. Layton, sworn statement. 7. George Fay. Investigation of the Abu Ghraib Detention Facility and 205th Military Inteligence Brigade, Aug. 2004, in Greenberg and Dratel, 1051. 8. Fay, in Greenberg and Dratel, 1081, 1102, 1121–22. 9. [Name redacted, of 470th Military Intelligence Group], Sworn statement, 18 May 2004, DOD 000340–46.

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10. Army Surgeon General, Final Report: Assessment of Detainee Medical Operations for OEF, 20–15 (Operation Enduring Freedom posted at http://armymedicine .army.mil/news/detmedopsrprt/detmedopsrpt.pdf.) 11. [Name redacted]. CJTF-TFF-1: Memorandum for the Record of Interview, 29 June 2004, DOD 000347. 12. W. Shakespeare, Henry VI, part 2, act 2, scene 1. 13. J. M. Coetzee, Waiting for the Barbarians (New York: Penguin, 1982), 5. 14. J. M. Arrigo, “A Utilitarian Argument against Torture Interrogation of Terrorists,” Science & Engineering Ethics 10 (2004): 543–72. 15. James Schlesinger, Final Report of the Independent Panel to Review DoD Detention Operations. Aug. 2004, in Greenberg and Dratel, 974–75. 16. G. R. Randall, L. Lutz, J. Quiroga, et al. “Physical and Psychiatric Effects of Torture: Two Medical Studies,” In Eric Stover and Elena Nightingale, The Breaking of Bodies and Minds. Washington, DC: American Assocation for the Advancements of Science, 1985, 62–63. 17. J. L. Thomsen, “The Role of the Pathologist in Human Rights Abuses,” Journal of Clinical Pathology 53 (2000): 569–72. 18. [Name redacted], sworn statement, 20 September 2003, DODDOACID 000113–16. 19. US Army: 43rd Military Police Detachment, 10th Military Police Battalion, Criminal Investigation Division Report-Final-152–03-CID469-60212, 6 February 2004, DODDOACID 000105–66. 20. Military Intelligence Slide Show, TIPs [Tactics, Techniques, and Procedures] & lessons learned [Undated], Taguba Annex 40:0001781. 21. [Name redacted, of A Battalion, 4th Infantry], sworn statement, 27 September 2003, DODDOACID 000119–16. 22. [Name redacted, of D Battalion, 104th Military Intelligence], sworn statement, 27 September 2003, DODDOACID 000142–45. 23. [Name redacted, of 4th Infantry Division], sworn statement, 27 September 2003, DODDOACID 000134–36. 24. US Army: 43rd Military Police Detachment, 10th Military Police Battalion, Criminal Investigation Division Report-Final-152–03-CID469-60212. 25. [Name redacted, of 4th Infantry Division], sworn statement, 27 September 2003, DODDOACID 000119–21. 26. D. Sontag, “How Colonel Risked His Career by Menacing Detainee and Lost,” New York Times, 27 May 2004. 27. [Name redacted], information paper: status of charges pending against LTC [Lieutenant Colonel]—, 4 December 2003, 8093–94. 28. T. Wright, LTC [Lieutenant Colonel]—, 15 September 2003, 8089–90. 29. [Unsigned Military Memo], information paper: status of charges pending against LTC [Lieutenant Colonel]—, 4 December 2003, 8089–90. 30. Sontag, “How Colonel Risked His Career.” 31. Sontag, “How Colonel Risked His Career.” 32. U.S. Army: 43rd Military Police Detachment, 10th Military Police Battalion, Criminal Investigation Division Report-Final-152–03-CID469-60212. 33. U.S. Army, 10th Military Police Detachment, 3rd Military Police Group, CID Report of Investigation-Final (C)0031–03-CID519–621479j/5CIN 15Xh5Y2D/ 5Y2G, 8 June 2003, Taguba Annex 34.

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34. T. Wright, 320th MP soldiers and allegations of maltreatment of EPWs [Enemy Prisoners of War], 15 September 2003, 8090–92. 35. M. Marchand, information paper: charges pending for abuse of Iraqi detainees, 4 December 2003, 8087–88. 36. R. Sabatino, deposition, 10 February 2004, Taguba Annex 47: 22–24. 37. J. Karpinski, sworn interview, 10 February 2004, in Greenberg and Dratel, 546. 38. Sabatino, deposition. 39. G. Maddocks, sworn interview, 14 February 2004, Taguba Annex 48. 40. Maddocks, sworn interview. 41. M. Sheridan, sworn statement, 14 February 2004, Taguba Annex 60: 9. 42. D. Struck, H. Schneider, K. Vick, and P. Baker, “Borderless Network of Terror,” Washington Post, 23 September 2001. 43. Agence France-Presse, “Western Intel Knew Bin Laden’s Plan since 1995,” 8 December 2001. 44. F. M. Dostoyevsky, The Brothers Karamazov, trans. C. Garnett (1879; New York: Barnes & Noble Classics, 2003) 227. 45. C. Krauthammer, “The Truth about Torture,” Weekly Standard 11 (2005): 12. 46. Sanford Levinson, ed., Torture: A Collection (New York: Oxford University Press, 2004) (throughout: contains essays from various points of view). 47. C. A. Pfaff, “Toward an Ethics of Detention and Interrogation: Consent and Limits,” Philosophy and Public Policy Quarterly 3 (2005): 18–21. 48. F. Allhoff, “Terrorism and Torture,” International Journal of Applied Philosophy 17 (2003): 121–34. 49. A. Dershowitz, “Tortured Reasoning,” in Levinson 257–80. 50. A. W. McCoy, “Cruel Science: CIA Torture and US Foreign Policy,” New England Journal of Public Policy 19 (2005): 209–62. 51. Final Report of the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities [“Church Committee”], 94th Cong. 2d Sess., 1976. 52. Central Intelligence Agency et al. v. Sims et al. 471 U.S. Supreme Court 159 (1985). 53. CIA. KUBARK Counterintelligence Interrogation Manual, July 1963. 54. U.S. Army, FM 34–52 Intelligence Interrogation, Washington, D.C., May– August 1987. 55. J. Segal, “Correlates of Collaboration and Resistance Behavior among U.S. Army POWs in Korea,” Journal of Social Issues 133 (1957): 31–40. 56. Working Group Report on Detainee Interrogations in the Global War on Terrorism, 4 April 2003, in Greenfield and Dratel 331–32, 335–37, 344–46. 57. CBS News, “Memo Cites Captive Abuse Cover-up,” 8 December 2004. 58. K. Zernike, “Soldiers Testify on Orders to Soften Prisoners in Iraq,” New York Times, 13 January 2005. 59. C. Mackey and G. Miller, The Interrogators (New York: Little, Brown, 2004), 32. 60. FBI, transcription, 10 December 2004, Detainees-3930–31. 61. FBI, interview memo, 16 April 16, 2003, Detainees-4001–03. 62. FBI, interview memo, 7 March 2003, Detainees-3970–71.

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63. FBI, interview memo, 17 March 2003, Detainees-3972–77. 64. FBI, interview memo, 3 December 2004, Detainees-3998. 65. [Sender’s name redacted], investigation of abuse, 20 May 2004, DOD 045195–6. 66. FBI, interview memo, 6 March 2003, Detainees-3968–69. 67. C. Murray, Foreign and Commonwealth Office e-mail, receipt of intelligence obtained under torture, July 2004. 68. D. Jehl, “Al-Qaeda-Iraq Link U.S. Cited Is Tied to Coercion Claim,” New York Times, 9 December 2005. 69. FBI, interview memo, n.d., Detainees-4015–16. 70. FBI, interview memo, 19 March 2003, Detainees-3978–81. 71. FBI, interview memo, 28 March 2003, Detainees-3982–84. 72. FBI, interview memo, 19 March 2003, Detainees-3985–86. 73. FBI, interview memo, 8 April 2003, Detainees-3988–89. 74. FBI, interview memo, 8 April 2003, Detainees-3989–91. 75. FBI, interview memo, 8 April 2003, Detainees-3992–95. 76. FBI, interview memo, 9 April 2003, Detainees-3996–97. 77. FBI, interview memo, 18 April 2003, Detainees-4004–86. 78. FBI, interview memo, 21 April 2003, Detainees-4008–10. 79. FBI, interview memo, 23 April 2003, Detainees-4013–15. 80. S. Qouta, R. L. Punamaki, and E. E. Sarraj, “Prison Experiences and Coping Styles among Palestinian Men,” Peace and Conflict: Journal of Peace Psychology (1997): 9–36. 81. R. Afshari, “Tortured Confessions,” Human Rights Quarterly 23 (2001): 290–97. 82. Human Rights Watch Middle East, Torture and Ill-Treatment: Israel’s Interrogation of Palestinians from the Occupied Territories (New York: Rights Watch, 1994). 83. Mackey and Miller, The Interrogators. 84. R. A. Hudson, “The Sociology and Psychology of Terrorism: Who Becomes a Terrorist and Why?” Federal Research Division, Library of Congress, http://www.loc .gov/rr/frd/pdf-files/SocPsych_oLTerrorism.pdf (accessed 18 December 2004). 85. [Name redacted, of the 470th Military Intelligence Group], sworn statement, 18 May 2004, DOD 000859–63. 86. J. Karpinski, deposition, 18 July 2004, DOD 000089–329. 87. [Name redacted, of the 304th Military Intelligence Battalion], sworn statement, 21 May 2004, DOD 000598–605. 88. Fay, in Greenberg and Dratel, 1042. 89. P. Aussaresses, The Battle of the Casbah: Terrorism and Counter-Terrorism in Algeria, 1955–1957 (New York: Enigma Books, 2002). 90. International Institute for Strategic Studies (London: Strategic Survey 2003, 2004). 91. Pew Research Center, “A Year after Iraq War: Mistrust of America in Europe Ever Higher, Muslim Anger Persists,” Pew Charitable Trusts, Washington, D.C., 16 March 2004. 92. F. Zakaria, “Pssst . . . Nobody Loves a Torturer,” Newsweek, 14 November 2005.

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93. Working Group Report on Detainee Interrogations in the Global War on Terrorism, 4 April 2003, in Greenfield and Dratel 335–36, 346. 94. D. Priest, “CIA Puts Harsh Tactics on Hold,” Washington Post, 27 June 27, 2004. 95. Working Group Report on Detainee Interrogations in the Global War on Terrorism, 346. 96. R. M. MacNair, “Perpetration-Induced Traumatic Stress in Combat Veterans,” Peace and Conflict: Journal of Peace Psychology 8 (2002): 63–67. 97. Robert Jay Lifton, Home from the War. (New York: Other Press, 1973), 41–71. 98. J. Simerman, “Soldier: Leadership Did Little to Reduce Iraqi Inmate Abuse,” Knight Ridder, 10 May 2004. 99. S. Sontag, Regarding the Pain of Others (New York: Farrar, Straus & Giroux, 2003), 22, 45, 90. 100. K. McNutt, “Sexualized Violence against Iraqi Women by U.S. Occupying Forces,” Briefing Paper of International Educational Development, 2005, http:// psychoanalystsopposewar.org/resources_files/SVIW-I. doc. 101. T. Pappas, sworn statement, 12 February 2004, Taguba Annex 46: 29. 102. [Name redacted], personal statement to Navy Criminal Investigation Service, Camp Al Taqaddum, Iraq, 17 August 2004, DODD ON [Department of Defense, Department of the Navy] 000343–48. 103. Rush Limbaugh Show, “It’s Not About Us: This Is War,” 4 May 2004, archived at Media Matters for America. 104. J. Lelyveld, “Interrogating Ourselves,” New York Times Magazine, 12 June 2005, cover, 36–43, 60, 66–69. 105. D. Molinski, “Colombian Artist Depicts Abu Ghraib Abuse,” Associated Press, 12 April 2005. 106. A. Wallach, “New ‘Truisms’ in Words and Light,” New York Times, 28 September 2005. 107. B. Harvey, “In Turkish Movie, Americans Kill Innocents,” Associated Press, 3 February 2006. 108. E. Cody, “Iraqis Put Contempt for Troops on Display,” Washington Post, 12 June 2004.

12 U.S. Army Interrogator Survey on Ethics Rebecca Bolton

In July 2005 Rebecca Bolton submitted to the faculty of the Joint Military Intelligence College the thesis “Professional Ethics Training for Army HUMINT: More Than Just ‘Checking the Block.’” The survey below formed the basis of evidence for that thesis. All the survey respondents were U.S. Army noncommissioned officers (i.e., enlisted personnel) between the rank of sergeant (typically with about five years or more of military service) and master sergeant (typically with about eighteen years or more of military service) with the military occupational specialty responsible for human intelligence collection (HIC). Two hundred soldiers were sent a survey in which seventy-three respondents completed and returned their forms (a 36.5 percent success rate). The questions for this survey were developed in order to determine the demographic composition of the personnel in this job, what ethical dilemmas were they likely to encounter, and was it possible for these individuals to identify an ethical dilemma and differentiate between ethical and legal conduct. That survey is reprinted, unedited, to provide in both quantifiable and qualitative terms a possible “snapshot of understanding” of the military personnel that do this type of work in the intelligence community. Readers are invited to analyze and interpret the results (quotes are unedited) for what they may or may not say about this population in the intelligence community. It also goes without saying that the views express in this article do not necessarily reflect that of the U.S. government. [Ed.] Men who take up arms against one another in public war do not cease on this account to be moral beings, responsible to one another and to God. —General Orders No. 100 (the Lieber Code), 24 April 1863

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SURVEY RESULTS AND ANSWERS Population: U.S. Army noncommissioned officers between the rank of Sergeant (E-5) to Master Sergeant (E-9) with the military occupational specialty responsible for human intelligence collection (HIC). 1. Age group: 17 to 25: 26 to 34: 35 to 44: 45 and older: No response:

25% 56% 15% 3% 1%

2. Sex: Male: Female:

70% 30%

3. Are you a native-born U.S. citizen? Yes: No: No response:

89% 10% 1%

4. Were your parents born in the United States? Yes: No: No response:

74% 23% 3%

5. What is your race or ethnicity? African American: Asian: Caucasian: Hispanic: Other: No response:

5% 5% 50% 10% 25% 5%

6. Do you consider yourself a religious person? Yes: No: No response:

71% 25% 4%

7. What is your religious orientation? Catholic: Jewish:

25% 3%

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Mormon: Muslim: Protestant: Other: No Affiliation: No response:

7% 4% 29% 4% 5% 23%

8. From what source do you draw your “moral compass”? Family only: 25% Education only: 4% Church only: 9% Family and Church: 21% Church and Education: 3% All of the above: 7% Other: 8% No answer: 23% 9. In your opinion, is it ever ethical to hurt one person in order to help many people? Yes: No: No answer:

67% 26% 7%

Comments added by respondents: • Yes, but it truly depends on the context. I don’t believe it is ever necessary to hurt a person during an interrogation or interview. • Yes (only in extreme instances, like imminent I&W of Nuclear or radiological bombs, CONUS [contiguous United States]-based chemical-weapons attack, etc.) The situation must dictate the severity of the actions. • Yes, but not when the person is in a controlled environment wherein he/she has no ability to harm others. • Yes, isn’t that what war is? 10. In how many conflicts or wars have you performed your duties as a Human Intelligence Collector (HIC)/Interrogator? 0: 1: 2: 3: 4 or more:

30% 40% 16% 11% 3%

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11. Total number of months serving as an HIC in a combat theater: 0: 1–5: 6–10: 11–15: 16–20: 20–25: 25 or more:

33% 15% 13% 27% 4% 8% 0%

12. What issues have you or your HIC comrades faced that involved decisions based at least in part on ethics? 51% never faced any ethical issues in their job; 4% decline to answer; 45% agreed to answer, some of the responses are listed below. Comments added by respondents: • Is it ethical to lie and make false promises in order to gain information? Segregation, isolation, and the use of dogs for intimidation are all ethical questions. Is it ok to punish and imprison an otherwise good person because they fought for their country or God? • Every decision of every interrogation is influenced by individual ethics. • Every time a detainee enters into your facility there is an ethical decision to treat the person in accordance with the regulations and your own personal sense of morality. There is a certain amount of irony to give medical treatment to the same man who moments ago tried to blow you up, but ultimately it is a delicate balance of maintaining your own humanity and achieving your mission. • None in actually performing the mission. Our guidance is pretty clear-cut. The issues come from the chain of command. When the chain of command doesn’t understand the process, and how we function (and most do not), then issues arise with some of the weaker personality-type soldiers. They are put into losing situations, where they are wrong no matter what they do. HICs are trained very well in doing our job. HICs are not trained in telling senior commanders, “no.” Worse, senior commanders do not fully comprehend our job. They don’t need to fully understand it, they do however, need to accept the fact that we provide “X” to them. That is all. When they want “Y,” they need to understand that they are not going to get it. Only “X.”

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• Holding a detainee in order to gain cooperation of another in his family, stress positions, and sleep depravation. • The disposition of nonthreat detainees, the treatment of detainees, and the disposition of detainees that have intelligence value, but have done nothing against U.S. or Coalition forces. • Confrontational detainees, warnings of pending attacks with detainees who refuse to talk, staying clear of political or religious conversations with sources, use of family as an emotional approach and overall how to maintain composure and professionalism while being frustrated or even teased by a source to over react. • Unqualified individuals (mainly officers) at least in part, allowed to perform HUMINT activities without any training or guidance. • How we question people. What are appropriate questions and what are considered disrespectful. • Questioning detainees in a nonthreatening situation, questioning detainees in a threatening situation, working with human sources, raids, eliciting information from the general populace usually evoked cries for assistance. Almost every combat/intelligence patrol involves at least some decisions based on ethics. • We have to lie in our jobs. • It depends on the area of HUMINT that you are questioning about. In detention and interrogation operations, it is sometimes necessary to recommend detainees be detained for further exploitation solely based on who or what they know, not what they have done. Many times, the detainee was completely innocent, but has secondhand information. It is incumbent upon the interrogator to recommend continued detention, for further exploitation. This creates a multitude of problems. When comparing this to the ethics that Americans are taught as it pertains to civil liberties. Contact me if you require further information. • Being unable to protect a source. • Ensuring that unit commanders treat detainees appropriately. • Dealing/working with local nationals with low/no ethics and morals. • The mistreatment of prisoners and others who step outside the lines to achieve goals. • When those you are working with are in violation of our regulations. • Collection requirements and methods of collecting information form sources. Peer pressure on methods of collecting information from sources. Conscience vs. lying to or threatening detainees to get required information.

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• I have had no issues at this time. But a lot people think that just because we detained some of these people here in Iraq all are guilty. I do not know if the answer helps. • None. Strictly abiding by the Geneva Conventions, Law of Land Warfare, and each commander’s additional restrictions did not allow much room for personal ethical beliefs to have much of an impact on how we conducted operations. • The issue of how important is the information really needed. The different agencies not providing support and sharing information with one another. Lack of adequate equipment. • Whether or not to interrogate/detain minors or women; acceptable levels of stress or duress placed on detained persons; interpretation of Geneva Conventions and how they apply to detainees. • ALL decisions, to some degree have an ethical basis. • HIC Comrades: Our training (Cold War Doctrine—Conventional Combatant EPW) did nothing to prepare us for dealing with criminals and terrorists. The enemy knows how to counter our techniques. A senior warrant officer said that really the only thing to do now is to “line them up against a wall and shoot them.” • I served during and after the Abu Ghraib incident. Due to the climate generated by this extreme caution was used to ensure humane treatment. In fact often if there was time prior to the release of detainees we would approach them and ask them IO related questions and give them extra food and tea. • I’m not sure that I understand this question. • We face ethical decisions on a daily basis. For the most part it’s interpretation of truth by the receiver. • Very upset that we let known criminals go. • What is the boundary between doing your job and going too far when using aggressive methods in interrogation? Interrogation by nature is coercive, and there are some techniques that, though effective, are currently viewed as inappropriate due to the fiasco at Abu Ghraib prison. Is it ethical to make someone uncomfortable or unhappy in order to get information? Or is it unethical to stop questioning someone and to let information go that could save the lives of civilians and U.S. soldiers? • I was deployed to Iraq for about one year and was a HIC there. I dealt daily with detainees there, and I never personally ran into problems that required me to rely in part on ethics. • The change to stricter interrogation guidelines gave us reason to consider if the interrogation methods we used conformed to new regulations. Also whether it was worth adhering to the new

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regulations at the risk of not gaining valuable information that may have been attained by using the more severe previously acceptable methods of interrogation. 15. Have you ever been asked to perform a duty that you considered at the time unethical? If yes, please describe the incident in general terms. Yes: No: No Answer:

14% 85% 1%

Comments added by respondents: • No. All of my superiors were understanding of the laws of land warfare and at no time was I asked to participate in acts that I believed to be unethical. • No. Legal was very specific about what we could or couldn’t do, we followed it to the letter of their guidance. • Not as such, but I find the use of sleep modification practices to be in a gray area, though these practices were handled fairly. • No one has ever asked me to perform any unethical duties, nor have I ever been witness to any situation over the past seven years where someone has been asked to do something like that. That just becomes the excuse when someone gets caught doing something they decided to do on their own, and don’t want to accept the responsibilities for their actions. It’s a cop-out that for some reason, people accept. And it’s always so vague. “They told me to do it.” Well who’s they? Military intelligence officials. Give me a name! MPs [military police] and MI [military intelligence] work together. Everybody knows everyone else’s name in a facility. I don’t care who you are, or what agency you work for, someone knows who you are. • I’ve been pressured to recommend persons for continued detention based solely on their religious views. I’ve also been pressured to “make the unit look good” even if they retain innocent persons with no intel value. • Leave a twenty-year-old specialist with a unit commander that did not listen to the young HUMINTERer’s advice and allowed the abuse of prisoners under his command. • No I haven’t and if I was asked to do so I would refuse. • No, none at all. Actually my supervisors where very strict when it came to ethics and ensured that we and all our troops abide by the Geneva Convention.

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• I was asked to apply what I considered to be an unacceptable level of stress and duress upon detainees in order to obtain critical intelligence. I refused. I was not punished, nor was I ostracized. The environment I worked in was such that no one was required to do anything they were uncomfortable with. • No, but if I did I wouldn’t do it. It’s not to anyone’s advantage if we did unethical things. • I was asked by my senior drill SGT to change PT scores of soldiers in my platoon so we would be the lead platoon while I was in Basic Training. I was told recently by my supervisor that I couldn’t go around saying that if I saw someone doing something wrong on my upcoming deployment that I would report it as high as it had to go to get resolved. He stated that what happens down range stays down range . . . apparently everyone but myself thinks this is ok. 16. Have you ever been asked to perform a duty that upon hindsight, you would now consider unethical? If yes, please describe the incident in general terms. Yes: No: No Answer:

8% 89% 3%

Comments added by respondents: • I believe that there were many cases in which the level of intelligence value for a particular detainee was questionable and yet we were required to keep the detainee because higher-ranking officers did not trust our evaluation. In those cases there were detainees without intel value that stayed too long and also those with intel value that were released too quickly due to politics. I consider both cases to be unethical. • No. I’ve always tried to do the right things. If I ever did something like that, that would have been probably actions from my ignorance or misunderstanding. • I have worked in an S2 [military intelligence] shop at HQ company for two years and I was asked by two officers to write them a clearance verification stating they had TS [Top Secret] so they could go to a TS conference. I didn’t do it but I was told not to make an issue of it when they obtained courier orders from a subordinate unit. 17. If the United States amended the laws and allowed torture in some instances in order to gain intelligence information, would

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you be willing to participate in such an activity, provided it was completely legal? Yes: No: Decline to Answer:

33% 64% 3%

Comments added by respondents: • Never. I would leave the army and spend my life protesting the hypocrisy of a nation that preaches freedom and liberty but legalizes the most vile aspect of humanity. • No. Every human, guilty or not, has certain rights. Certainly some detainees have given up those rights by their own actions, however, if we were to allow torture then how are we to advocate justice? Interrogations for intelligence value are not trials of guilt or innocence . . . they are a search for valuable information. The Islamic extremist mindset presents very difficult and specific challenges for interrogations but I maintain my stance that torture is not the only, nor the best way to break them down. From discussions with other more seasoned interrogators from other agencies I believe that the best methods are those for which they have not been trained. If someone is prepared to give up their life for a cause then what good does torture do? • It is not a question of being willing to participate. Would I use it? No. Torture is not an effective method in gathering intelligence. Torture is effective in getting people to tell you what they think you want to hear. Torture is effective in getting people to admit they are a witch, or that they don’t support the Catholic Church. If that is what the policy makers want, another Spanish inquisition, then I suppose they should adopt torture as a technique. If they are looking for true, actionable information that MAY be of intelligence value, then they should allow us to refine some of our psychology, and better train the soldiers to understand the mind. In addition, our soldiers do need to attend training at DLI, not just for the language, but also for the insight into foreign cultures that is taught there. I would not use torture because it is not effective. I have conducted quite a few interrogations, and debriefings, and have been very successful using what I have been taught, and relying on my ability to think clearly during a session. • I prefer to use the guidance from the article “The Dark Art of Interrogation.” Coercion is necessary; torture is wrong. Torture is anything that leaves a permanent scar, mark, or disability, coercion is anything that doesn’t. By that definition, I would not torture anyone, but I believe in coercion.

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• I respect your effort to further your knowledge, and to provide what you think will be a valuable tool to the MI community by asking these questions; however, I choose not to answer in light of the recent scandals surrounding our MOS as of late and the continuing 15–6 and other investigations which will no doubt be coming in the near future. Please understand that I wish I could help you and I am not trying to be smart or disrespectful but I decline to answer. Good luck with your master’s thesis. • Absolutely not. I would have to discontinue my service as an interrogator. • I would be strongly against using torture, however, if the intelligence information gained would be of immediate use to save many lives, then yes I would have to consider torture or the threat of torture. • Overall, no, the information gained under torture is tainted to the point of not being reliable. A source who is tortured to obtain information will tell you just about anything you want to hear in order to make the pain stop. This knowledge is based on the training I have received. Additionally, any HIC that must resort to torture in order to obtain information from a source would only have to do so if his/her questioning skills are so weak as to require physical punishment of the source. I am a better HIC than that and would see this not a moral issue but one of competence. • No, torture is not conducive to effective interrogation nor does it produce quality and reliable information. I do think the term “torture” is overused in describing some activities. Just because something is not comfortable for another person doesn’t mean it is torture. Torture to me is an action that either permanently or temporally affects the physical condition of source, actions that result in death of a source or action that cause long-term mental problems that are not treatable. • Torture does not give you the right answer. A person will say anything they think you want to hear in order to get you to stop. Truth or fiction. It gets you nowhere. The fear of the unknown however, is something that could be used to psychologically break someone down, like if an Iraqi heard that the U.S. was allowed to beat and shame, torture, ridicule, and dishonor it’s prisoners, they might think a little longer before they commit a crime against us/ coalition forces. Or once in the booth, the idea of it might make a few crack easier. The hard part would be to find an experienced interrogator that would even follow through with torture. That’s something that kids and ignorant people think work because they see it on 24 or in the movies. I see it all the time when MPs or

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visiting officers want to sit in on an interrogation (well the MPs have to because it’s their job); they come in with a preconcluded idea that it’s going to be a show, but interrogations are very dry, slow, meticulous, boring, last several hours, and generally uninteresting. Everyone who doesn’t have to be there walks out after the first forty-five minutes or so. The questions are all repetitive, calm, and predetermined by the interrogator, his senior interrogator, and in some cases, whatever General Sanchez craps out and says he wants to hear because he wants to play HUMINT that day. People unqualified to do interrogations are the problem. MPs [military police] playing grab-ass in the holding area. Col. so and so who shoots off nine mil rounds into the burm next to a guys head right after an IED [incendiary explosive device] attack. These people are the problem. Officers can’t and are not qualified to do interrogations, nor should they ever be allowed to question any sources. Col. XXXXX was allowed to do such in XXXX, and look what happened there. Just follow the pattern. Ignorant people using their rank to do what they want leads to problems. And for some reason, because they do things that average people consider “interrogations,” real interrogators are raked over the coals for it. • U.S. laws allow for the army to engage in combat operations. Combat operations—killing people—to gain intelligence is allowed. The line is when human beings are placed in our custody, it is then that we do not condone or allow inhumane treatment. Torture taints the source of any information to such a degree, in my opinion, that the information gained is useless. The problem then is how people define torture. What I don’t consider torture, someone else might. In that light, I’d be willing to engage in handling of prisoners in situations upon controlling them where physical handling approaches what would be considered normal for good order and discipline in that culture. While extracting information, the person being interrogated may become undisciplined and emotively combative. I would be willing to engage in measures to discipline them in order to maintain good order. If he yells at me, that he’ll never talk, and it’s normal in their culture that someone in a superior position would smack a subordinate across the face for such an affront, then so be it. Torture that is applied as extreme physical or mental pain done in order to coerce information from an individual, I would not do, legal or not. In the end, it’s just not going to help us. • I would do what I was ordered to do within legal boundaries, but I would never make the decision myself, to harm, or to order any subordinate to harm an individual for intelligence collection

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purposes. Again I state that physical torture is completely unnecessary in any interrogation or interview. An interrogation is (based on the root of the word) an interrogative session, or simply put, a question-and-answer session. There are many different methods of conducting interrogative interviews. Causing physical pain on a detainee never works, where another method would not if used properly. Define torture. I don’t consider leashed, barking dogs, loud strong language, occasionally throwing a chair (not at the detainee), or uncomfortable (too hot/cold) surroundings “torture.” I don’t consider what soldiers understand as “PT” as torture. I don’t consider temporary (less than fifteen minutes) in uncomfortable positions “torture.” I don’t consider sleep deprivation (for 24–48 maximum hours) as torture. Maiming, disfiguring, pain, sawing someone’s head off with a Bowie knife, or making someone believe his life is in imminent danger is certainly torture. Faking drowning is torture. Hours in “stress positions” is certainly torture. And to culturally embarrass, ridicule, sexual depravity, and making detainees live in their own filth is torture. Understanding this definition of torture (maiming, pain, disfigurement, faked executions, etc.), I would not take part in these activities, nor allow colleagues to take part in these activities. I would report it under “Procedure 14” to the IG, or other suitable authority. It is taught in our military schools that “torture” is not an effective way to get reliable information, because the detainee will do or say anything to get the pain to stop. This is my experience, too. However, the people that I have interrogated are religious ideologues. Physical pain and torture might seem to be the only alternative, but that is erroneous. I would not participate or condone any torture. Possibly, too many things that would depend on it; I’d prefer to not be involved with it. Hell no. Depending on the severity, yes. Only if it was within control reason and not made public knowledge to non-HUMINT specialist otherwise everybody and their brother would think it was ok for their uneducated untrained ignorant ass to do it also. In some cases, yes. First, I don’t think the U.S. will approve torture in any circumstances. America was founded on Christianity and Christianity is the ground of America’s current society in general and spread out throughout the country. America is America because it fears God and respects people and the lives of people. If America legalizes

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•

• • • • •

•

•

•

torture, it betrays American people and the people around the world. Second, we uphold the highest ethical standards. If we start imitating insurgent tactics and exercise “this for that” we are not far different from them. It will only worsen the relationship between countries engaged in conflicts. Third, if torture is legalized and accepted in the entire world, then it should not be a problem any longer. Even if it gets legalized and accepted universally, I will not participate in it personally but professionally and try to get away from that kind of duty and even leave the military as soon as possible because of personal religious belief system. No, because it has been known that if the interrogator started to torture people in order to collect intelligence the information that could be gained through the use of torture is not very reliable and the individual would tell you anything just to make the torture stop. Unless you have a real hard-core individual that the only way you can make him talk is through the use of torture than I think I would. Yes, absolutely. No, and there is no evidence that torturing methods are productive or that they elicit truthful responses. Only if it was a last resort and the situation deemed that method necessary to obtain time-sensitive information. I would not do the actual torture, but I would still interrogate. If you define torture like the ACLU [American Civil Liberties Union], then probably—it would depend on the form. If you define torture like the other 6 billion people in the world, then absolutely not. We must not reduce ourselves to the level of those who kill and maim our citizens, but we should not be required to treat them better than we treat our own soldiers. No. However, this is not for ethical reasons. I personally ascribe to the opinion that torture only gets the answers that you want. Having said this, if I encountered a situation where I felt that torture would, in fact, break a source and not result in false information I would not hesitate to use whatever legal tactics I had at my disposal. No, I would not be willing to torture anyone, regardless of legality. I don’t mean certain coercive techniques which if allowed by regulation I might use as appropriate; but when it comes to actual torture, i.e., causing serious physical pain and damage, then no. The word torture, I believe is overstretched. If you’re asking me whether I would do the things we were allowed to do before the Abu prison scandal, maybe. It all depends on the situation. That’s why we were allowed to do some things before that we are no

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•

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longer allowed to do now. It really depends on a person’s training. I think we should make an advanced level-two course for NCOs [noncommissioned officers] and above. No, I have not interrogated yet but I do not think that torture is an effective method of interrogation. If I had to do it because the president ordered it through my superiors and it was legal I would have no choice but to obey, but I wouldn’t because I wanted to. I am opposed to physical torture, i.e., beating, electrocution, bindings/restraints intended to harm/create extreme discomfort. I do not think I would ever be able to do those things to another person. Up to that point though, I have no qualms. Yes, under extenuating circumstances, but it doesn’t always provide correct information. If the definition of “torture” was not brutal and was less torture but more physical discomfort, yes. Depending on the person/subject in question, the circumstances, intelligence to be gained, and the type of torture to be used. Tickling a person’s feet can be considered a form of torture, but does not truly harm the person. If American lives are at stake, then the situation is changed. Intel may be gained in many ways that are effective and do not involve or need torture. No, information that is beaten/tortured out of a detainee is never reliable. No, you can get better intel from treating the person like a human. Yes, do what it takes to get the job done as long as it is considered legal by the U.S. government.

13 U.S. Intelligence Reform Proposals Made by Commissions and Major Legislative Initiatives Related to Professionalism, Accountability, and Ethics The following information comes from Proposals for Intelligence Reorganization, 1949–2004, by Richard Best (Congressional Research Service: The Library of Congress, RL 32500). This is not the entire report; rather, it is an abridged version focusing on relevant items pertaining to intelligence professionalism (such as individual accountability and ethics). Nevertheless, when seeking such a narrow scope, it is at times difficult to separate what might be considered “extraneous items” (such as organizational structure, funding, and the influence of foreign or domestic politics). To assist the reader, those items directly related to professionalism are in bold and should be of specific interest related to ethical conduct. This list is only a guide, and readers are encouraged to read the actual documents, which, with a few exceptions, are unclassified and available to the public. [Ed.]

THE TRUMAN ADMINISTRATION, 1945–1953 1947 The National Security Act, signed 26 July 1947, established the statutory framework for the managerial structure of the United States Intelligence Community, including the Central Intelligence Agency (CIA). The intent of this legislation was to coordinate U.S. national defense efforts and intelligence activities in response to the communist threat. 1949: Hoover Commission Under the chairmanship of former President Herbert Hoover, the twelvemember bipartisan commission conducted a comprehensive review of the 206

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federal bureaucracy, including the intelligence agencies. Ferdinand Eberstadt, a strong advocate of a centralized intelligence capability who had been instrumental in drafting the National Security Act of 1947, headed the commission’s Task Force on National Security Organization. Known as the Eberstadt Report, it found the “National Security Organization, established by the National Security Act of 1947, [to be] soundly constructed, but not yet working well.” The report identified fundamental organizational and qualitative shortcomings in the national intelligence effort and the newly created CIA. A principal concern of the task force was the adversarial relationship and lack of coordination between the CIA, the military, and the State Department. It suggested that this resulted in unnecessary duplication and the issuance of departmental intelligence estimates that “have often been subjective and biased.”1 In large measure, the military and State Department were blamed for their failure to consult and share pertinent information with the CIA. The task force recommended “that positive efforts be made to foster relations of mutual confidence between the [CIA] and the several departments and agencies that it serves.”2 In short, the report stressed that the CIA “must be the central organization of the national intelligence system.” To facilitate community coordination in the production of national estimates, a founding intent of the CIA, the task force recommended the creation within the CIA “at the top echelon an evaluation board or section composed of competent and experienced personnel who would have no administrative responsibilities and whose duties would be confined solely to intelligence evaluation.”3 To foster professionalism and continuity of service, the report also favored a civilian director of central intelligence (DCI) with a long term in office.4 In the arena of covert operations and clandestine intelligence, the Eberstadt Report supported the integration of all clandestine operations into one office within the CIA, under NSC supervision. To alleviate concerns expressed by the military, which viewed this proposal as encroaching upon their prerogatives, the report stated that clandestine operations should be the responsibility of the Joint Chiefs of Staff (JCS) in time of war.

1949: Intelligence Survey Group (Dulles-Jackson-Correa Report) On 8 January 1948 the National Security Council established the Intelligence Survey Group (ISG) to “evaluate the CIA’s effort and its relationship with other agencies.”5 Commissioned at the request of President Harry Truman, the group was composed of Allen W. Dulles, who had served in the Office of Strategic Services (OSS) during the Second World War and would become DCI in 1953; William Jackson, a future Deputy DCI; and Matthias Correa, a former assistant to Secretary of Defense James V. Forrestal when the latter had served as Secretary of the Navy during the war. Under the

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chairmanship of Dulles, the ISG presented its findings, known as the DullesJackson-Correa Report, to the National Security Council on 1 January 1949. The 193-page report, partially declassified in 1976, contained fifty-six recommendations, many highly critical of the CIA and DCI. In particular, the report revealed problems in the agency’s execution of both its intelligence and operational missions. It also criticized the quality of national intelligence estimates by highlighting the CIA’s—and, by implication, the DCI’s—“failure to take charge of the production of coordinated national estimates.” The report went on to argue that the CIA’s current trend in secret intelligence activities should be reversed in favor of its mandated role as coordinator of intelligence.6 The Dulles-Jackson-Correa Report was particularly concerned about the personnel situation at CIA, including internal security, the high turnover of employees, and the excessive number of military personnel assigned to the agency. To add “continuity of service” and the “greatest assurance of independence of action,” the report argued that the DCI should be a civilian and that military appointees be required to resign their commissions.7

THE EISENHOWER ADMINISTRATION, 1953–1961 The Eisenhower administration witnessed the Soviet Union solidification of its hold over Eastern Europe, crushing the Hungarian revolution, and the rise of Communist insurgencies in Southeast Asia and Africa. This was a period in which extensive covert psychological, political, and paramilitary operations were initiated in the context of the threat posed by Soviet-led Communist expansion. However, between 1948, when a covert action program was first authorized through NSC Directive 10/2, and 1955 there was no formally established procedure for approval. Between 1954 and 1956, this prompted three investigations into U.S. intelligence activities, including the CIA. The first, the Task Force on Intelligence Activities of the Second Hoover Commission on Organization of the Executive Branch of the Government, was sponsored by Congress. The second, the Doolittle Report, was commissioned at the request of President Dwight D. Eisenhower in response to the Second Hoover Commission. The third, the Bruce-Lovett Report was initiated by the President’s Board of Consultants on Foreign Intelligence Activities (PBCFIA), and reported to Eisenhower. 1955: Second Hoover Commission The Commission on Organization of the Executive Branch of the Government, also chaired by Hoover, of 10 July 1953. Known as the Second

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Hoover Commission, it contained a Task Force on Intelligence Activities under the chairmanship of General Mark W. Clark. In May 1955, the task force submitted both classified and unclassified reports. The classified version was sent directly to Eisenhower, and has not been declassified according to available information. The unclassified version was sent to Congress. The unclassified report’s seventy-six pages contained nine recommendations and briefly described the evolution of the intelligence community and its then-current functioning. The report initiated the official use of the term “intelligence community.”8 Until that time, the U.S. had sought to apply increasing coordination to departmental intelligence efforts, without the concept of a “community” of departments and agencies. The task force expressed the need to reform the CIA’s internal organization, including the recommendation that the DCI concentrate on intelligence issues facing the entire community by leaving the day-to-day administration of the CIA to an executive officer or chief of staff.9 It foresaw the need for better oversight of intelligence activities and proposed a small, permanent, bipartisan commission, including members of Congress and other “public-spirited citizens,” to provide independent oversight of intelligence activities that were normally kept secret from other parts of the government. The full commission’s report elaborated on this by recommending the establishment of both a congressional oversight committee and a presidential advisory panel. The task force also expressed concern about counterintelligence and recommended systematic rechecking of all personnel every five years “to make sure that the passage of time has not altered the trustworthiness of any employee, and to make certain that none has succumbed to some weakness of intoxicants or sexual perversion.”10

1954: The Doolittle Report In response to the establishment of the Second Hoover Commission’s Task Force on Intelligence Activities, Eisenhower sought and secured an agreement for a separate report to be presented to him personally on the CIA’s Directorate of Plans, that now had responsibility for both clandestine intelligence collection and covert operations. Accordingly, in July 1954 Eisenhower commissioned Lieutenant General James Doolittle (USAF) to report on the CIA’s covert activities and to “make any recommendations calculated to improve the conduct of these operations.”11 On 30 September 1954 Doolittle submitted his sixty-nine-page classified report directly to Eisenhower. Declassified in 1976, the Doolittle Report contained forty-two recommendations. The report began by

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summarizing contemporary American Cold War attitudes following the Korean War: 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. . . . If the United States is to survive, long-standing American concepts of “fair play” must be reconsidered. We must develop effective espionage and counterespionage services and 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 be made acquainted with, understand and support this fundamentally repugnant philosophy.12

The report went on to recommend that “every possible scientific and technical approach to the intelligence problem” be explored since the closed society of the Eastern Bloc made human espionage “prohibitive” in terms of “dollars and human lives.”13 In examining the CIA, Doolittle found it to be properly placed in the organization of the government. Furthermore, the report found the laws relating to the CIA’s functions were sufficient for the agency to meet its operational needs, i.e., penetration of the Soviet Bloc.14 The report went on to issue several recommendations calling for more efficient internal administration, including recruitment and training procedures, background checks of personnel, and the need to “correct the natural tendency to over classify documents originating in the agency.”15 It also called for increased cooperation between the clandestine and analytical sides of the agency, and recommended that the “Inspector General . . . operate on an Agency-wide basis with authority and responsibility to investigate and report on all activities of the Agency.”16 Finally, the report mentioned the need to provide the CIA with accommodations tailored to its specific needs, and to exercise better control (accountability) of expenditures in covert projects. Shortly after submitting the written report, Doolittle voiced his concern to Eisenhower over the potential difficulties that could arise from the fact that DCI Allen Dulles and Secretary of State John Foster Dulles were brothers and might implement policies without adequate consultation with other administration officials.17 1956: Bruce-Lovett Report In 1956 David Bruce, a widely experienced diplomat, and Robert Lovett, a prominent attorney, to prepare a report for Eisenhower on the CIA’s covert action programs as implemented by NSC Directive 10/2. The report itself has not been located by either the CIA’s Center for the Study of Intelli-

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gence or by private researchers. Presumably, it remains classified. However, Peter Grose, biographer of Allen Dulles, was able to use notes of the report prepared years earlier by historian Arthur M. Schlesinger Jr.18 According to Grose’s account of the Schlesinger notes, the report criticized the CIA for being too heavily involved in third-world intrigues while neglecting the collection of hard intelligence on the Soviet Union. Reportedly, Bruce and Lovett went on to express concern about the lack of coordination and accountability of the government’s psychological and political warfare program. Stating that “no charge is made for failure,” the report claimed that “[n]o one, other than those in CIA immediately concerned with their day-to-day operation, has any detailed knowledge of what is going on.”19 These operations, asserted Bruce and Lovett, were in the hands of a “horde of CIA representatives (largely under State or Defense cover), . . . bright, highly graded young men who must be doing something all the time to justify their reason for being.”20 As had Doolittle, Bruce and Lovett criticized the close relationship between Secretary of State John Foster Dulles and his brother, DCI Allen W. Dulles. Due to the unique position of each brother, the report apparently expressed concern that they could unduly influence U.S. foreign policy according to their own perceptions.21 The report concluded by suggesting that the U.S. reassess its approach to covert action programs and that a permanent authoritative position be created to assess the viability and impact of covert action programs.22 Eisenhower Administration Intelligence Investigations As a result of the Second Hoover Commission’s Report and Doolittle’s findings, two new NSC Directives, 5412/1 and 5412/2, were issued pertaining to covert activities in March and November 1955, respectively. Together, these directives instituted control procedures for covert action and clandestine activities. They remained in effect until 1970, providing basic policy guidelines for the CIA’s covert action operations.

THE KENNEDY ADMINISTRATION, 1961–1963 In the 1950s the Eisenhower administration had supported covert CIA initiatives in Iran (1953) and Guatemala (1954) to overthrow governments unfriendly to the United States. These operations were planned to provide the United States with a reasonable degree of plausible deniability. During the last Eisenhower years, revolution in Cuba resulted in a communist government under Fidel Castro. In the context of the Cold War, a communist Cuba appeared to justify covert U.S. action to secure a change in that nation’s

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government. In April 1961 an ill-fated U.S.-backed invasion of Cuba led to a new chapter in the history of the intelligence community. On 17 April 1961 some fourteen hundred Cuban exiles of the Cuban Expeditionary Force (CEF), trained and supported by the CIA, landed at the Bay of Pigs in Cuba with the hope of overthrowing the communist regime of Castro. Known as Operation Zapata, the invasion was a complete disaster. Over the first two days, Castro succeeded in defeating the invasion force and exposing direct U.S. involvement. The fiasco led to two official examinations of U.S. involvement and conduct in Operation Zapata. The first, the Taylor Commission, was initiated by President John F. Kennedy in an attempt to ascertain the overall cause of the operation’s failure. The second, the Kirkpatrick Report, was an internal CIA investigation to determine what had been done wrong. 1961: The Taylor Commission On 22 April, Kennedy asked General Maxwell Taylor, former U.S. Army Chief of Staff, to chair a high-level body composed of Attorney General Robert Kennedy, former Chief of Naval Operations Admiral Arleigh Burke, and DCI Allen Dulles to ascertain the reasons for the invasion’s failure. Known as the Taylor Commission, the study group’s fifty-three-page classified report was submitted to Kennedy on 13 June 1961. Declassified in 1977, the report examined the conception, development, and implementation of Operation Zapata. The commission’s final report focused on administrative rather than operational matters, and evenly leveled criticism at the White House, the CIA, the State Department, and the Joint Chiefs of Staff.23 The report found that the CIA, at White House direction, had organized and trained Cuban exiles to enter Cuba, foment anti-Castro sentiment, and ultimately overthrow the Cuban government. Originally intended by the Eisenhower administration as a guerrilla operation, Zapata was supposed to operate within the parameters of NSC Directive 5412/2, which called in part for plausible U.S. deniability. However, in the Kennedy administration, the operation grew in size and scope to include a full-scale military invasion involving “sheep-dipped” B-26 bombers, supply ships, and landing craft.24 The report found that “the magnitude of Zapata could not be prepared and conducted in such a way that all U.S. support of it and connection with it could be plausibly disclaimed.”25 In large measure, the report blamed the operation’s planners at the CIA’s Directorate of Plans for not keeping the president fully informed as to the exact nature of the operation. However, the report also criticized the State Department, the JCS, and the White House for acquiescing in

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the Zapata plan, which “gave the impression to others of approving it,” and for reviewing “successive changes of the plan piecemeal and only within a limited context, a procedure that was inadequate for a proper examination of all the military ramifications.”26 The Taylor Commission found the operation to be ill-conceived, with little chance for ultimate success. Once underway, however, the report cited Kennedy’s decision to limit overt U.S. air support as a factor in the CEF’s defeat.27 This decision was apparently reached in order to protect the covert character of the operation. The report criticized this decision by stating that when an operation had been approved, “restrictions designed to protect its covert character should have been accepted only if they did not impair the chance of success.” The failure in communication, breakdown in coordination, and lack of overall planning led the Taylor Commission to conclude that [t]he Executive Branch of government was not organizationally prepared to cope with this kind of paramilitary operation. There was no single authority short of the President capable of coordinating the actions of CIA, State, Defense and USIA [U.S. Information Agency]. Top level direction was given through ad hoc meetings of senior officials without consideration of operational plans in writing and with no arrangement for recording conclusions reached.28

1961: The Kirkpatrick Report Concurrent with the Taylor Commission, DCI Dulles instructed CIA Inspector General Lyman B. Kirkpatrick Jr. to conduct an internal investigation to determine what the CIA had done wrong in the Cuban operation. Completed in five months, the report was viewed by the few within CIA who read it as professionally shabby. Whereas the Taylor Report had more of the detached perspective of a management-consultant, the Kirkpatrick Report was viewed as a personal attack against the CIA and DCI Dulles. The 170-page report remains classified. However, in 1972 Kirkpatrick published an article in the Naval War College Review that apparently reflected the findings of his report.29 In particular, Kirkpatrick criticized the Zapata planners at the Directorate of Plans for not having fully consulted the CIA’s Cuban analysts before the invasion. The article also criticized the operation’s internal security, which Kirkpatrick claimed was virtually nonexistent. Calling the operation frenzied, Kirkpatrick accused the CIA of “playing it by ear” and misleading the president by failing to inform him that “success had become dubious.”30 In Kirkpatrick’s view, the CIA bore most of the blame, and the Kennedy administration could be forgiven for having trusted the advice of the operation’s planners at the agency.

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1961: President’s Foreign Intelligence Advisory Board On 4 May 1961, following the Bay of Pigs, Kennedy reconstituted the PBCFIA as the President’s Foreign Intelligence Advisory Board (PFIAB). Although little is known of the Kirkpatrick Report’s impact, the Taylor Report influenced Kennedy’s desire to improve the overall management of the intelligence process. In 1962 this prompted the president to instruct the new DCI, John McCone, to concentrate on his community-wide coordination role.

THE NIXON ADMINISTRATION, 1969–1974 1971: The Schlesinger Report In December 1970 President Richard Nixon commissioned the Office of Management and Budget (OMB) to examine the intelligence community’s organization and recommend improvements, short of legislation. In March 1971 the report, “A Review of the Intelligence Community,” was submitted by Deputy OMB Director James R. Schlesinger, a future DCI. Known as the Schlesinger Report, the study’s forty-seven pages noted the community’s “impressive rise in . . . size and cost” with the “apparent inability to achieve a commensurate improvement in the scope and overall quality of intelligence products.”31 The report sought to uncover the causes of this problem and identify areas in which constructive change could take place. In examining the intelligence community, Schlesinger criticized “unproductively duplicative” collection systems and the failure in forward planning to coordinate the allocation of resources.32 In part, the report cited the failure of policy makers to specify their product needs to the intelligence producers. However, the report identified the primary cause of these problems as the lack of a strong, central intelligence community leadership that could “consider the relationship between cost and substantive output from a national perspective.”33 Schlesinger found that this had engendered a fragmented, departmental intelligence effort. To correct these problems, Schlesinger considered the creation of a director of national intelligence (DNI), enhancing the DCI’s authority, and establishing a coordinator of national intelligence (CNI) who would act as the White House–level overseer of the intelligence community to provide more direct representation of presidential interest in intelligence issues. In the end, the report recommended “a strong DCI who could bring intelligence costs under control and intelligence production to an adequate level of quality and responsiveness.”34

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1974–1981: THE ERA OF PUBLIC INVESTIGATIONS In the late 1940s and throughout the 1950s, there had been widespread public agreement on the need for an effective national security structure to confront Soviet-led communist expansion. However, by the late 1960s the war in Vietnam had begun to erode public consensus and support for U.S. foreign policy. The controversy surrounding the Watergate investigations after 1972, and subsequent revelations of questionable CIA activities involving domestic surveillance, provided a backdrop for increasing scrutiny of government policies, particularly in such fields as national security and intelligence. Between 1975 and 1976, this led the Ford administration and Congress to conduct three separate investigations that examined the propriety of intelligence operations, assessed the adequacy of intelligence organizations and functions, and recommended corrective measures. A fourth panel, convened earlier to look more broadly at foreign policy, also submitted recommendations for intelligence reform. 1975: Murphy Commission The Commission on the Organization of the Government for the Conduct of Foreign Policy provided for other oversight mechanisms, viz., a strengthened PFIAB and more extensive review (prior to their initiation and on a continuing basis thereafter) of covert actions by a high-level interagency committee. It argued that although Congress should be notified of covert actions, the president should not sign such notifications, since it is harmful to associate “the head of State so formally with such activities.”35 It was further recommended that intelligence requirements and capabilities be established at the NSC-level to remedy a situation in which “the work of the intelligence community becomes largely responsive to its own perceptions of what is important, and irrelevant information is collected, sometimes drowning out the important.”36 It also recommended that this process be formalized in an officially approved five-year plan. A consolidated foreign intelligence budget should also be prepared, approved by an interagency committee and the OMB, and submitted to Congress. 1975: Rockefeller Commission Prior to the mid-1960s, the organization and activities of the intelligence community were primarily the concern of specialists in national security and governmental organization. The Murphy Commission, although working during a subsequent and more politically turbulent period, approached

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intelligence reorganization from this perspective as well. The political terrain had, however, been shifting dramatically and the intelligence community would not escape searching criticism. During the era of the Vietnam War and Watergate, disputes over national security policy focused attention on intelligence activities. In 1975, media accounts of alleged intelligence abuses, some stretching back over decades, led to a series of highly publicized congressional hearings. Revelations of assassination plots and other alleged abuses spurred three separate investigations and sets of recommendations. The first was undertaken within the Executive Branch and was headed by Vice President Nelson A. Rockefeller. Other investigations were conducted by select committees in both houses of Congress. The Senate effort was led by Senator Frank Church and the House committee was chaired by Representative Otis Pike. These investigations led to the creation of the two permanent intelligence committees and much closer oversight by the Congress. In addition, they also produced a number of recommendations for reorganization and realignment within the intelligence community. Established by Executive Order 11828 on 4 January 1975, the Commission on CIA activities within the United States was chaired by Rockefeller and included seven others appointed by President Gerald Ford (including then-former governor Ronald Reagan). The commission’s mandate was to investigate whether the CIA had violated provisions of the National Security Act of 1947, precluding the CIA from exercising internal security functions. Of the Rockefeller Commission’s thirty recommendations, seventy-six included a number of proposals designed to delimit the CIA’s authority to collect foreign intelligence within the United States (from “willing sources”) and proscribe collection of information about the domestic activities of U.S. citizens, to strengthen PFIAB, to establish a congressional joint intelligence committee, and to establish guidelines for cooperation with the Justice Department regarding the prosecution of criminal violations by CIA employees. There was another recommendation to consider the question of whether the CIA budget should be made public, if not in full at least in part. The commission recommended that consideration should be given to appointing DCIs from outside the career service of the CIA and that no DCI serve longer than ten years. Two deputies should be appointed: one to serve as an administrative officer to free the DCI from day-to-day management duties, the other a military officer to foster relations with the military and provide technical expertise on military intelligence requirements. The CIA position of inspector general should be upgraded and his responsibilities expanded along with those of the general counsel. Guidelines should be developed to advise agency personnel as to what activities are permitted and what are forbidden by law and executive orders.

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The president should instruct the DCI that domestic mail openings should not be undertaken except in time of war and that mail cover operations (examining and copying of envelopes only) are to be undertaken only on a limited basis “clearly involving matters of national security.” The commission was specifically concerned with CIA infiltration of domestic organizations and submitted a number of recommendations in this area. Presidents should refrain from directing the CIA to perform what are essentially internal security tasks and the CIA should resist any effort to involve itself in improper activities. The CIA “should guard against allowing any component . . . to become so self-contained and isolated from top leadership that regular supervision and review are lost.” Files of previous improper investigations should be destroyed. The agency should not infiltrate American organizations without a written determination by the DCI that there is a threat to agency operations, facilities, or personnel that cannot be met by law enforcement agencies. Other recommendations were directed at CIA investigations of its personnel or former personnel, including provisions relating to physical surveillance, wire or oral communications, and access to income tax information. As a result of efforts by some White House staff during the Nixon administration to use CIA resources improperly, a number of recommendations dealt with the need to establish appropriate channels between the agency and the Executive Office of the president. Reacting to evidence that drugs had been tested on unsuspecting persons, the commission recommended that the practice should not be renewed. Also, equipment for monitoring communications should not be tested on unsuspecting persons within the United States. An independent agency should be established to oversee civilian uses of aerial photography to avoid any concerns over the improper domestic use of a CIA-developed system. Concerned with distinguishing the separate responsibilities of the CIA and the Federal Bureau of Investigation (FBI), the commission urged that the DCI and the director of the FBI prepare and submit to the National Security Council a detailed agreement setting forth the jurisdictions of each agency and providing for effective liaison between them. The commission also recommended that all intelligence agencies review their holdings of classified information and declassify as much as possible. 1976: Church Committee Established in the wake of sensational revelations about assassination plots organized by the CIA, the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities had a much wider mandate than the Rockefeller Commission, extending beyond the CIA to

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all intelligence agencies.37 It too, however, concentrated on illegalities and improprieties rather than organizational or managerial questions per se. After extensive and highly publicized hearings, the committee made some 183 recommendations in its final report, issued 26 April 1976.38 The principal recommendation was that omnibus legislation be enacted to set forth the basic purposes of national intelligence activities and defining the relationship between intelligence activities and the Congress. Criticizing vagueness in the National Security Act of 1947, the committee urged charters for the several intelligence agencies to set forth general organizational structures and procedures, and delineate roles and responsibilities. There should also be specific and clearly defined prohibitions or limitations on intelligence activities. The effort to pass such legislation would consume considerable attention over a number of years following the completion of the work of the Church Committee. A number of recommendations reflected the committee’s views on the appropriate role of the National Security Council in directing and monitoring the work of the intelligence agencies. The apparent goal was to encourage a more formal process, with accountability assigned to cabinet-level officials. The committee concluded that covert actions should be conducted only upon presidential authorization with notification to appropriate congressional committees. Attention was given to the role of the DCI within the entire intelligence community. The committee recommended that the DCI be recognized by statute as the president’s principal foreign intelligence adviser and that he should be responsible for establishing national intelligence requirements, preparing the national intelligence budget, and for providing guidance for intelligence operations. The DCI should have specific responsibility for choosing among the programs of the different collection and production agencies and departments and to insure against waste and unnecessary duplication. The DCI should also have responsibility for issuing fiscal guidance for the allocation of all national intelligence resources. The authority of the DCI to reprogram funds within the intelligence budget should be defined by statute.39 Monies for the national intelligence budget would be appropriated to the DCI rather than to the directors of the various agencies. The committee also recommended that the DCI be authorized to establish an intelligence community staff to assist him in carrying out his managerial responsibilities. The staff should be drawn “from the best available talent within and outside the intelligence community.”40 Further, the position of deputy DCI for the intelligence community should be established by statute (in addition to the existing DDCI, who would have responsibility primarily for the CIA itself). It also urged consideration of separating the DCI from direct responsibility over the CIA.

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The DCI, it was urged, should serve at the pleasure of the president, but for no more than ten years. The committee also looked at intelligence analysis. It recommended a more flexible and less hierarchical personnel system with more established analysts being brought in at middle and upper grades. Senior positions should be established on the basis of analytical ability rather than administrative responsibilities. Analysts should be encouraged to accept temporary assignments at other agencies or on the NSC staff to give them an appreciation for policy makers’ use of intelligence information. A system should be in place to ensure that analysts are more promptly informed about U.S. policies and programs affecting their areas of responsibility. In addressing covert actions, the committee recommended barring political assassinations, efforts to subvert democratic governments, and support for police and other internal security forces engaged in systematic violations of human rights. The committee addressed the questions of separating CIA’s analysis and production functions from clandestine collection and covert action functions. It listed the pros and cons of this approach, but ultimately recommended only that the intelligence committees should give it consideration. Reflecting concerns about abuses of the rights of U.S. citizens, the committee made a series of recommendations regarding CIA involvement with the academic community, members of religious organizations, journalists, recipients of government grants, and the covert use of books and publishing houses. A particular concern was limiting any influence on domestic politics of materials published by the CIA overseas. Attention was also given to proprietary organizations the CIA creates to conduct operations abroad; the committee believed them necessary, but advocated stricter regulation and congressional oversight. Tests by intelligence agencies on human subjects of drugs or devices that could cause physical or mental harm should not occur except under stringent conditions. The committee recommended enhanced positions for CIA’s inspector general (IG) and general counsel (GC), urging that the latter be made a presidential appointee requiring Senate confirmation. 1976: Pike Committee The House Select Committee on Intelligence, chaired by Representative Otis G. Pike, also conducted a wide-ranging survey of intelligence activities. In the conduct of its hearings, the Pike Committee was far more adversarial than the Church Committee to the intelligence agencies. Publication of its final report was not authorized by the House, although a version was published in a New York tabloid. The Pike Committee’s recommendations, however, were published on 11 February 1976.41 There were some twenty

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recommendations, some dealing with congressional oversight, with one dealing, anomalously, with the status of the assistant to the president for national security affairs. The Pike Committee recommended that covert actions not include, except in time of war, any activities involving direct or indirect attempts to assassinate any individual. The prohibition was extended to all paramilitary operations. A National Security Council subcommittee would review all proposals for covert actions and copies of each subcommittee member’s comments would be provided to congressional committees. The committee further recommended that congressional oversight committees be notified of presidential approval of covert actions within forty-eight hours. According to the proposal, all covert actions would have to be terminated no later than twelve months from the date of approval or reconsidered. The committee recommended that specific legislation be enacted to establish the NSA and define its role in monitoring communications of Americans and placed under civilian control. The Pike Committee further recommended that all “intelligence related items” be included as intelligence expenditures in the president’s budget and that the total sum budgeted for intelligence be disclosed. The Pike Committee also looked at the role of the DCI. Like many others who have studied the question, it recommended that the DCI should be separate from managing any agency and should focus on coordinating and overseeing the entire intelligence effort with a view toward eliminating duplication of effort and promoting competition in analysis. It advocated that he should be a member of the National Security Council. Under this proposal the DCI would have a separate staff and would prepare national intelligence estimates and daily briefings for the president. He would receive budget proposals from agencies involved in intelligence activities. (The recommendations did not indicate the extent of his authority to approve or disapprove these proposals.) The DCI would be charged with coordinating intelligence agencies under his jurisdiction, eliminating duplication, and evaluating performance and efficiency. The committee recommended that a permanent foreign operations subcommittee of the NSC, composed of cabinet-rank officials, be established. This subcommittee would have jurisdiction over all authorized activities of intelligence agencies (except those solely related to intelligence gathering) and review all covert actions, clandestine activities, and hazardous collecting activities. It was recommended that DIA be abolished and its functions divided between the Office of the Secretary of Defense and the CIA. The intelligence components of the military services would be prohibited from undertaking covert actions within the U.S. or clandestine activities against U.S. citizens abroad. Relations between intelligence and law enforcement organizations

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were to be limited. Intelligence agencies would be barred from providing funds to religious or educational institutions or to those media with general circulation in the United States. It was also recommended that an inspector general for intelligence be nominated by the president and confirmed by the Senate, with authority to investigate potential misconduct of any intelligence agency or personnel. He would make annual reports to the Congress. The committee also made recommendations regarding the organization and operations of the FBI and its role in investigating domestic groups. In an additional recommendation, Representative Les Aspin, a member of the committee, urged that the CIA be divided into two separate agencies, one for analysis and the other for clandestine collection and covert operations. A similar recommendation was made by Representative Ron Dellums, who also served on the committee. 1976: Clifford and Cline Proposals In 1976 hearings by the Senate Committee on Government Operations,42 Clark Clifford (who had served as President Lyndon Johnson’s final Secretary of Defense and, in an earlier position in the Truman administration, had been involved in legislation creating the CIA) proposed the creation of a post of director general of intelligence to serve as the president’s chief adviser on intelligence matters and as principal point of contact with the congressional intelligence committees. There would be a separate director of the CIA whose duties would be restricted to day-to-day operations.43 In the same year, Ray Cline, a former deputy director of the CIA, made a number of recommendations. He recommended that the DCI exert broad supervisory powers over the entire intelligence community and that the CIA be divided into two agencies, one to undertake analytical work and the other for clandestine services. He also proposed that the DCI be given cabinet rank, a practice that would find support in both the Reagan and Clinton administrations. 1978–1980: Proposed Charter Legislation Subsequent to the establishment of permanent intelligence oversight committees in the Senate in 1976 and the House of Representatives in 1977, attention in Congress shifted to consideration of charter legislation for intelligence agencies.44 It was envisioned that the charter legislation would include many of the recommendations made earlier by the Church and Pike committees. Introduced by Senator Walter Huddleston and Representative Edward Boland, the draft National Intelligence Reorganization and Reform Act of 1978 (S. 2525/H.R. 11245, 95th Congress) would

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have provided statutory charters to all intelligence agencies and created a director of national intelligence to serve as head of the entire intelligence community. Day-to-day leadership of CIA could be delegated to a deputy at presidential discretion. The draft legislation contained numerous reporting requirements (regarding covert actions in particular) to Congress and an extensive list of banned or restricted activities. The draft legislation of more than 170 pages was strongly criticized from all sides in hearings, some arguing that it would legitimize covert actions inconsistent with American ideals and others suggesting that its complex restrictions would unduly hamper the protection of vital American interests. The bills were never reported out of either intelligence committee, although the Foreign Intelligence Surveillance Act of 1978 (P.L. 95–511) provided a statutory base for electronic surveillance within the United States. Charter legislation was also introduced in the 96th Congress. It contained many of the provisions introduced in the earlier version, but also loosened freedom of information regulations for intelligence agencies and the requirements of the Hughes-Ryan amendments of 1974 that some eight committees be notified of covert actions. This legislation (S. 2284, 96th Congress) came under even heavier criticism from all sides than its predecessor. It was not reported by the Senate Intelligence Committee, but other stand-alone legislation did pass, and a shorter bill reducing the number of committees receiving notification of covert actions—and “significant anticipated intelligence activities”—was introduced and eventually became law in October 1980 as part of the FY1981 Intelligence Authorization Act (P.L. 96–450).

THE EXECUTIVE BRANCH RESPONSE, 1976–1981 Concurrent with, and subsequent to, these legislative initiatives, the Executive Branch, in part to head off further congressional action, implemented some of the more limited recommendations contained in their respective proposals. Presidents Gerald Ford, Jimmy Carter, and Ronald Reagan each issued detailed executive orders (E.O.) setting guidelines for the organization and management of the U.S. intelligence community. Issued by Ford on 18 February 1976, prior to the release of the Church and Pike Committee findings, Executive Order 11905 undertook to implement some of the more limited recommendations of the Rockefeller and Murphy commissions. In particular, E.O. 11905 identified the DCI as the president’s primary intelligence adviser and the principal spokesman for the intelligence community and gave him responsibilities for developing the National Foreign Intelligence Program (NFIP). It also delineated

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the responsibilities of each intelligence agency, provided two NSC-level committees for internal review of intelligence operations, and established a separate three-member Intelligence Oversight Board to review the legality and propriety of intelligence activities. It placed restrictions on the physical and electronic surveillance of American citizens by intelligence agencies.45 On 24 January 1978 Carter issued Executive Order 12036, which superseded E.O. 11905.46 Carter’s executive order sought to define more clearly the DCI’s community-wide authority in areas relating to the “budget, tasking, intelligence review, coordination and dissemination, and foreign liaison.”47 In particular, it formally recognized the establishment of the National Foreign Intelligence Program budget and the short-lived National Intelligence Tasking Center (NTIC), which was supposed to assist the DCI in “translating intelligence requirements and priorities into collection objectives.”48 E.O. 11905 also restricted medical experimentation and prohibited political assassinations. Reagan continued the trend toward enhancing the DCI’s communitywide budgetary, tasking, and managerial authority. On 4 December 1981, he issued Executive Order 12333, detailing the roles, responsibilities, missions, and activities of the intelligence community. It supplanted the previous orders issued by Ford and Carter. E.O. 12333 remains the governing executive branch mandate concerning the managerial structure of the intelligence community. E.O. 12333 designates the DCI “as the primary intelligence advisor to the President and NSC on national foreign intelligence.”49 In this capacity, the DCI’s duties include the implementation of special activities (covert actions), liaison to the nation’s foreign intelligence and counterintelligence components, and the overall protection of the community’s sources, methods, and analytical procedures.50 It grants the DCI “full responsibility for [the] production and dissemination of national foreign intelligence,” including the authority to task non-CIA intelligence agencies and the ability to decide on community tasking conflicts. The order also sought to grant the DCI more explicit authority over the development, implementation, and evaluation of NFIP.51 To a certain extent, E.O. 12333 represented a relaxation of the restrictions placed upon the community by Carter. Although it maintained the prohibition on assassination, the focus was on “authorizations” rather than “restrictions.” “Propriety” was removed as a criterion for approving operations. Arguably, the Reagan administration established a presumption in favor of government needs over individual rights.52 However, in the absence of legislation, the DCI continued to lack statutory authority over all aspects of the intelligence community, including budgetary issues.

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1985: The Turner Proposal In 1985 Admiral Stansfield Turner, DCI in the Carter administration, expressed his views on the need for intelligence reform.53 In part, Turner recommended reducing the emphasis on covert action and implementing a charter for the intelligence community. The most important recommendation involved the future of the DCI, of which Turner maintained: “The two jobs, head of the CIA and head of the Intelligence Community, conflict. One person cannot do justice to both and fulfill the DCI’s responsibilities to the President, the Congress, and the public as well.”54 Turner went on to propose the separation of the two jobs of DCI and head of the CIA with the creation of a director of national intelligence, separate from and superior to the CIA. Turner also recommended placing less emphasis on the use of covert action than the Reagan administration. 1987: Iran-Contra Investigation During highly publicized investigations of the Reagan administration’s covert support to Iran and the Nicaraguan Resistance, the role of the intelligence community, the CIA, and DCI William Casey were foci of attention. Much of the involvement of National Security Council staff was undertaken precisely because legislation had been enacted severely limiting the role of intelligence agencies in Central America and because efforts to free the hostages through cooperation with Iranian officials had been strongly opposed by CIA officials. The Executive Branch’s review, chaired by former Senator John Tower, expressed concern that precise procedures be established for restricted consideration of covert actions and that NSC policy officials had been too closely involved in the preparation of intelligence estimates.55 The investigation of the affair by two congressional select committees resulted in a number of recommendations for changes in laws and regulations governing intelligence activities. Specifically, the majority report of the two congressional select committees that investigated the affair made a number of recommendations regarding presidential findings concerning the need to initiative covert actions. Findings should be made prior to the initiation of a covert action, they should be in writing, and they should be made known to appropriate members of Congress in no event later than forty-eight hours after approval. Further, the majority of the committees urged that findings be far more specific than some had been in the Reagan administration. Statutory inspector general and general counsel positions, confirmed by the Senate, for the CIA were also recommended.56 Minority members of the two committees made several recommendations regarding congressional oversight, urging that on extremely sensitive matters that notifications of covert ac-

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tions be made to only four members of Congress instead of the existing requirement for eight to be notified.57 1992: Boren-McCurdy A major legislative initiative, reflecting the changed situation of the post– Cold War world, began in February 1992, when Senator David Boren, the chairman of the Senate Select Committee on Intelligence, and Representative Dave McCurdy, the chairman of the House Permanent Select Committee on Intelligence, announced separate plans for an omnibus restructuring of the U.S. intelligence community, to serve as an intelligence counterpart to the Goldwater-Nichols Department of Defense Reorganization Act of 1986. The two versions of the initiative (S. 2198 and H.R. 4165, 102nd Congress) differed in several respects, but the overall thrust of the two bills was similar. Both proposals called for the following: Creating a Director of National Intelligence (DNI) with authority to program and reprogram intelligence funds throughout the Intelligence Community, including the Defense Department, and to direct their expenditure; and to task intelligence agencies and transfer personnel temporarily from one agency to another to support new requirements; Creating two Deputy Directors of National Intelligence (DDNIs); one of whom would be responsible for analysis and estimates, the other for Intelligence Community affairs; Creating a separate Director of the CIA, subordinate to the new DNI, to manage the agency’s collection and covert action capabilities on a day-to-day basis; Consolidating analytical and estimative efforts of the Intelligence Community (including analysts from CIA, and some from DIA, the Bureau of Intelligence and Research [INR] at the State Department, and other agencies) into a separate office under one of the Deputy DNIs (this aspect of the proposal would effectively separate CIA’s analytical elements from its collection and covert action offices); Creating a National Imagery Agency within the Department of Defense (DOD) to collect, exploit, and analyze imagery (these tasks had been spread among several entities; the House version would divide these efforts into two new separate agencies); and Authorizing the Director of DIA to task defense intelligence agencies (DIA, NSA, the new Imagery Agency) with collection requirements; and to shift functions, funding, and personnel from one DOD intelligence agency to another.

This major restructuring effort would have provided statutory mandates for agencies where operational authority was created by Executive Branch directives. Both statutes and Executive Branch directives provided the DCI authority to task intelligence agencies outside the CIA and to approve budgets

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and reprogramming efforts; in practice, however, this authority had never been fully exercised. This legislation would have provided a statutory basis for the DCI (or DNI) to direct collection and analytical efforts throughout the intelligence community. The Boren-McCurdy legislation was not adopted, although provisions were added to the FY1994 Intelligence Authorization Act (P.L. 102–496) that provided basic charters for intelligence agencies within the National Security Act and set forth in law the DCI’s coordinative responsibilities visà-vis intelligence agencies other than the CIA. Observers credited strong opposition from the Defense Department and concerns of the Armed Services Committees with inhibiting passage of the original legislation. 1995–1996: Commission on the Roles and Capabilities of the U.S. Intelligence Community Established pursuant to the Intelligence Authorization Act for FY1995 (P.L. 103–359) of 27 September 1994, the Commission on the Roles and Capabilities of the U.S. Intelligence Community (Aspin/Brown Commission) was formed to assess the future direction, priorities, and structure of the intelligence community in the post–Cold War environment. Originally under the chairmanship of Les Aspin, the commission was headed by former secretary of defense Harold Brown after Aspin’s sudden death. Nine members were appointed by the president and eight nominated by the congressional leadership. The Report of the Aspin/Brown Commission58 made a number of recommendations regarding the organization of the intelligence community. Structural changes in the NSC staff were proposed to enhance the guidance provided to intelligence agencies. Global crime—terrorism, international drug trafficking, proliferation of weapons of mass destruction, and international organized crime—was given special attention with recommendations for an NSC Committee on Global Crime. The commission also recommended designating the attorney general to coordinate the “nation’s law enforcement response to global crime,” and clarifying the authority of intelligence agencies to collect information concerning foreign persons abroad for law enforcement purposes. It urged that the sharing of relevant information between the law enforcement and intelligence communities be expanded, and their activities overseas be better coordinated.59 The commission noted that it considered many options for dealing with limitations in the DCI’s ability to coordinate the activities of all intelligence agencies. The Aspin/Brown Commission recommended the establishment of two new deputies to the DCI—one for the intelligence community and one for day-to-day management of the CIA. Both would be Senateconfirmed positions, and the latter for a fixed six-year term. The DCI would

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concur in the appointment of the heads of “national” intelligence elements within the DOD and would evaluate their performance in their positions as part of their ratings by the secretary of defense. “In addition, the DCI would be given new tools to carry out his responsibilities with respect to the intelligence budget and new authority over the intelligence personnel systems.” The Aspin/Brown Commission recommended the realignment of intelligence budgeting procedures with “discipline” (i.e. SIGINT, imagery, HUMINT, etc.) managers having responsibilities for managing similar efforts in all intelligence agencies. “The DCI should be provided a sufficient staff capability to enable him to assess tradeoffs between programs or program elements and should establish a uniform, communitywide resource database to serve as the principal information tool for resource management across the Intelligence Community.”60 Responding to a longstanding criticism of intelligence budget processes, the commission recommended that the total amounts appropriated for intelligence activities be disclosed—a recommendation that was implemented by the Clinton administration for fiscal years 1997 and 1998. Subsequently, however, figures were not made public. In regard to congressional oversight, the Aspin/Brown Commission recommended that appointments to intelligence committees not be made for limited numbers of years but treated like appointments to other congressional committees. IC21: Intelligence Community in the 21st Century, 1996. In addition to the Aspin/Brown Commission, in 1995–1996 the House Intelligence Committee undertook its own extensive review of intelligence issues. Many of the conclusions of the resultant IC21 Staff Study were consistent with those of the commission.61 The “overarching concept” was a need for a more “corporate” intelligence community, i.e., a collection of agencies that recognize that they are parts of “a larger coherent process aiming at a single goal: the delivery of timely intelligence to policy makers at various levels.” Accordingly, “central management should be strengthened, core competencies (collection, analysis, operations) should be reinforced and infrastructure should be consolidated wherever possible.”62 Specific IC21 recommendations provided for a radically restructured community and included • The DCI should have a stronger voice in the appointment of the directors of NFIP defense agencies; • the DCI should have greater programmatic control of intelligence budgets and intelligence personnel; • a Committee on Foreign Intelligence should be established within the NSC; • two DDCIs should be established; one to direct the CIA and managing analysis and production throughout the community and the

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other responsible for IC-wide budgeting, requirements and collection management and tasking, infrastructure management and system acquisition; establishment of a Community Management Staff with IC-wide authority over, and coordination of, requirements, resources and collection; there should be a uniformed officer serving as director of military intelligence with authority to manage/coordinate defense intelligence programs (JMIP and TIARA); the Clandestine Service, responsible for all HUMINT, should be separated from the CIA, reporting directly to the DCI; a Technical Collection Agency should be established to create an ICwide management organization responsible for directing all collection tasking by all agencies and ensuring a coherent, multidiscipline approach to all collection issues; there should be common standards and protocols for technical collection systems, from collection through processing, exploitation and dissemination; a Technology Development Office should be established to perform community research and development functions; and congressional oversight should be strengthened by the establishment of a joint intelligence committee; alternatively, the House intelligence committee should be made a standing committee without tenure limits.

1997: The Response to Aspin/Brown and IC21 The recommendations of the Aspin/Brown Commission and the IC21 Study led to extensive congressional consideration of intelligence organization issues. The House Intelligence Committee considered separate legislation on intelligence organization (H.R. 3237, 104th Congress); the Senate included extensive organizational provisions as part of the intelligence authorization bill for FY1997 (S. 1718, 104th Congress). In addition, the Defense Authorization Act for FY1997 (P.L. 104–201) included provisions establishing the National Imagery and Mapping Agency (NIMA) that combined elements from intelligence agencies as well as the Defense Mapping Agency, which had not been part of the intelligence community. The conference version of the FY1997 intelligence authorization legislation, eventually enacted as P.L. 104–293, included as its Title VIII the Intelligence Renewal and Reform Act of 1996. The act established within the NSC two committees, one on foreign intelligence and another on transnational threats. The former was to identify intelligence priorities and establish policies. The latter was to identify transnational threats and develop

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strategies to enable the United States to respond and to “develop policies and procedures to ensure the effective sharing of information about transnational threats among Federal departments and agencies, including law enforcement agencies and the elements of the intelligence community.” Two deputy DCI positions were established, one for deputy DCI and the other for a deputy DCI for community management, both Senateconfirmed positions. While the deputy DCI would have responsibilities coterminous with those of the DCI, the deputy DCI for community management would focus on the coordination of all intelligence agencies. Congress did not attempt to establish a position for a head of the CIA separate from that of the DCI. In addition to the two deputy DCIs, the legislation provided for three assistant DCIs—for collection, for analysis and production of intelligence, and for administration. The statute calls for all three assistant DCI positions to be filled by, and with, the advice and consent of the Senate. The statute is clear that the positions were envisioned as being designed to enhance intelligence capabilities and coordination of the efforts of all intelligence agencies. In addition, the legislation required that the DCI concur in the appointment of three major defense intelligence agencies—NSA, the NRO, and NIMA (later renamed the National Geospatial-Intelligence Agency). If the DCI failed to concur, the nominations could still be forwarded to the president, but the DCI’s nonconcurrence had to be noted. The act required that the DCI be consulted in the appointment of the DIA director, the assistant secretary of state for intelligence and research, and the director of the Office of Nonproliferation and National Security of the Energy Department. The FBI director is required to give the DCI timely notice of an intention to fill the position of assistant director of the FBI’s National Security Division. The act gave the DCI authority to develop and present to the president an annual budget for the National Foreign Intelligence Program and to participate in the development by the secretary of defense of the Joint Military Intelligence Program (JMIP) and the Tactical Intelligence and Related Activities Program (TIARA). Moreover, the DCI gained authority to “approve collection requirements, determine collection priorities, and resolve conflicts in collection priorities levied on national collection assets, except as otherwise agreed with the Secretary of Defense pursuant to the direction of the President.” Presidential Statement President Bill Clinton signed the legislation on 11 October 1996, but in so doing he stated concerns about provisions that “purport to direct” the creation of two new NSC committees. “Such efforts to dictate the President’s

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policy process unduly intrude upon Executive prerogatives and responsibilities. I would note that under my Executive authority, I have already asked the NSC to examine these issues.” Furthermore, he criticized provisions requiring the DCI to concur or be consulted before the appointment of certain intelligence officials. This requirement, he argued, “is constitutionally questionable in two areas: regarding limitations on the President’s ability to receive the advice of cabinet officers; and regarding circumscription of the President’s appointment authority.” The statement also noted the “strong opposition” by DCI John Deutch to provisions establishing three new assistant DCIs, each requiring Senate confirmation. Clinton added: “I share his concerns that these provisions will add another layer of positions requiring Senate confirmation without a corresponding gain in the DCI’s authority or ability to manage the Intelligence Community. I understand that the DCI intends to seek repeal or significant modification of these provisions in the 105th Congress. I will support such efforts.” Implementation George Tenet, nominated to succeed John Deutch, responded to a question from Senator Robert Kerrey during his Senate confirmation hearing in May 1997 that “I may have some changes in the law in my own mind, if I’m confirmed, that allows us to meet your objectives. And I want to come work with you on it.” Tenet also indicated that he believed that the DCI’s statutory responsibilities for coordinating the work of all intelligence agencies was adequate. In May 1998 the Senate Intelligence Committee held a hearing on the nomination of Joan A. Dempsey as the first deputy DCI for community management. In opening remarks, Chairman Richard C. Shelby noted discussions with the executive branch regarding the positions established by P.L. 104–293: [W]e have reached an accommodation with the Director of Central Intelligence on these positions, and we expect the President to put forward a nominee for the position of Assistant Director of Central Intelligence for Administration, or ADCI, soon. We have agreed to allow the DCI to fill the positions of ADCI for Collection and ADCI for Analysis and Production without exercising the Senate’s right for advice and consent for up to one year while we assess the new management structure.

Dempsey in her testimony succinctly set forth the fundamental problem of intelligence organization: It’s somewhat amusing to me—and I’ve spent most of my career in the Department of Defense . . . and when I was in DOD there was always this fear that a

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very powerful DCI with a full-time emphasis on intelligence and managing the community would fail to support the DOD the way it needed to be supported with intelligence. Since I’ve come over to the Central Intelligence Agency side of the intelligence community, I’ve found the same fear, but this time directed at what DOD is going to do to subvert the role of the DCI.

She noted, however, the establishment of coordinative mechanisms such as the Defense Resources Board and the Intelligence Program Review Group and “constant accommodations made by Secretaries of Defense and DCIs to work together to find solutions to problems.” In general, she argued, “the relations have been good.” The following February, the Senate Intelligence Committee met to consider the nomination of James Simon as assistant DCI for administration. At the hearing, Kerrey, the vice chairman, noted that the DCI had taken the interim steps of appointing acting assistant directors for collection and for analysis. He added: “I expect Presidential nominations for these positions will be forthcoming soon.” He noted, however, that “[o]nce the 1997 Authorization Act was passed, the Community resisted mightily the appointment of Assistant Directors of Central Intelligence for collection and analysis.” Simon testified that he would be responsible for “the creation of a process to ensure that the needs of all customers—strategic and tactical, intelligence and battlefield surveillance, traditional and novel—are articulated, validated, and made manifest in our programs.” Simon noted in passing the importance of a highly capable staff to perform coordination missions; he referred to the former intelligence community staff as having had “a certain percentage of people there who, frankly, had retired in place or were considered to be brain dead and wanted a quiet place where they could make it to retirement without being bothered. A greater proportion were those that their agencies either didn’t want or that they felt were not progressing acceptably within their own agency.” Both Dempsey and Simon were confirmed by the Senate and served for several years in their respective positions. In July 2003 Dempsey, having left the DDCI position, was appointed executive director of the President’s Foreign Intelligence Advisory Board; Simon retired in 2003. Only in July 2004 was Larry Kindsvater confirmed by the Senate as DDCI for community management; nominations for assistant DCI positions have not been submitted. The statutory provisions remain in place, however. Despite the effort that went into the FY1997 legislation, the efforts intended to enhance the DCI’s community-wide role have not been fully implemented. The FY1997 Act established four new Senate-confirmed positions having responsibilities that extend across all intelligence agencies. Since enactment, the Senate has received nominations for only two individuals to these positions (both were duly confirmed and sworn in, but

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both left office in 2003 and replacements have not yet been nominated). Some observers also believe that the DCI’s authorities in the preparation of budgets for all intelligence agencies have not been fully exercised. Observers suggest that there is little likelihood that serious efforts will be made, however, to seek repeal of the provisions at a time when intelligence agencies are under scrutiny for their abilities to “connect the dots” on international threats. 2002: Joint Inquiry on the Terrorist Attacks of September 11, 2001 In the aftermath of the September 11, 2001 attacks on the World Trade Center and the Pentagon, the two congressional intelligence committees agreed to conduct a joint inquiry into the activities of the intelligence community in connection with the attacks. The Joint Inquiry undertook an extensive investigation and conducted a number of public and closed hearings. The two committees’ recommendations were published in December 2002, some of which addressed issues of intelligence community organization. The unclassified version of the inquiry’s report was published in mid-2003. Principally, the two committees urged that the National Security Act be amended to create a statutory director of national intelligence, separate from the head of the CIA. This DNI would have the “full range of management, budgetary and personnel responsibilities needed to make the entire U.S. Intelligence Community operate as a coherent whole.” These would include “establishment and enforcement” of collection, analysis, and dissemination priorities; authority to move personnel between intelligence community elements; and “primary management and oversight of the execution of Intelligence Community budgets.” The committees also recommended that Congress consider legislation, similar to the Goldwater-Nichols Act of 1986, which reorganized the Defense Department, to instill a sense of jointness throughout the intelligence community, including joint education, joint career specialties, and more “joint tours” in other agencies that would be designated as “career-enhancing.” Shelby, then vice chairman of the Senate Intelligence Committee, submitted additional views that also advocated organizational changes in the intelligence community. Shelby argued that “[t]he fragmented nature of the DCI’s authority has exacerbated the centrifugal tendencies of bureaucratic politics and has helped ensure that the IC responds too slowly and too disjointedly to shifting threats.” Accordingly, the “office of the DCI should be given more management and budgetary authority over IC organs and be separated from the job of the CIA Director.”63 Further, Shelby argued that the basic structure of the National Security Act needs to be reexamined to separate “central” analytical functions from “resource hungry collection responsibilities that make agencies into self-

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interested bureaucratic ‘players.’” Shelby acknowledged that “[c]reating a true DCI would entail removing dozens of billions of dollars of annual budgets from the Defense Department, and depriving it of ‘ownership’ over ‘its’ ‘combat support organizations.’ In contemporary Washington bureaucratic politics, this would be a daunting challenge; DOD and its congressional allies would make such centralization an uphill battle, to say the least.” Shelby also recalled the Goldwater-Nichols precedent in urging that the intelligence community be restructured, but cautioned that the intelligence community should not be reformed solely to meet the terrorist threat: “[W]e need an Intelligence Community agile enough to evolve as threats evolve, on a continuing basis. Hard-wiring the IC in order to fight terrorists, I should emphasize, is precisely the wrong answer, because such an approach would surely leave us unprepared for the next major threat, whatever it turns out to be.”64 2004: National Commission on Terrorist Attacks upon the United States Established by the Intelligence Authorization Act for FY2003, the 9/11 Commission, chaired by former New Jersey governor Thomas H. Kean, undertook a lengthy investigation of the “facts and circumstances relating to the terrorist attacks of September 11, 2001.” Although the commission’s mandate extended beyond intelligence and law enforcement issues, a number of principal recommendations, made public on 22 July 2004 address the organization of the intelligence community. The commission argues that with current authorities the DCI is: responsible for community performance but lacks the three authorities critical for any agency head or chief executive officer: (1) control over purse strings, (2) the ability to hire or fire senior managers, and (3) the ability to set standards for the information infrastructure and personnel.65

The 9/11 Commission recommends the establishment of a National Counterterrorism Center (NCTC), responsible for both joint operational planning and joint intelligence, and the position of a director of national intelligence. In addition to overseeing various intelligence centers, the DNI would manage the National Foreign Intelligence Program and oversee the agencies that contribute to it. The Community Management Staff would report to the DNI. The DNI would manage the agencies with the help of three deputies, each of whom would also hold a key position in one of the component agencies. A deputy for foreign intelligence would be the now-separate head of the CIA, a deputy for defense intelligence would be the undersecretary of defense for intelligence, and the deputy for homeland intelligence would be either an FBI or Department of Homeland

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Security official. The DNI would not have responsibilities for intelligence programs affecting only Defense Department consumers. The report does not describe how the person serving simultaneously as the DNI’s assistant for defense intelligence and as an undersecretary of defense would resolve any differing guidance from the DNI and the secretary of defense. The 9/11 Commission also recommends a separate intelligence appropriation act, the total of which would be made public.66

NOTES 1. The Commission on Organization of the Executive Branch of the Government, Task Force Report on National Security Organization, Appendix G, January 1949; hereafter cited as the Eberstadt Report. 2. Eberstadt Report, 16, para. d. 3. Eberstadt Report, 16. 4. Arthur B. Darling, The Central Intelligence Agency: An Instrument of Government to 1950 (University Park: Pennsylvania State University Press, 1990), 293. This is a reprint of an official CIA history prepared in the early 1950s. 5. Mark M. Lowenthal, U.S. Intelligence: Evolution and Anatomy (Westport, CT: Praeger, 1992), p. 20. 6. Lowenthal, U.S. Intelligence, 20; Dulles-Jackson-Correa Report, 5, 11. 7. Dulles-Jackson-Correa Report, 138. 8. Commission on Organization of the Executive Branch of the Government, A Report to the Congress, Intelligence Activities, June 1955, 13; hereafter cited as Clark Task Force Report. 9. Clark Task Force Report, 70–71. For a more detailed account of the evolution of the DCI’s roles and responsibilities, see Herbert Andrew Boerstling, “The Establishment of a Director of National Intelligence,” unpublished Master of Arts Policy Paper, Boston University, August 1995. 10. Clark Task Force Report, 74. 11. The Report on the Covert Activities of the Central Intelligence Agency, 30 September 1954, hereafter cited as the Doolittle Report, 6–7. 12. Doolittle Report, 6–7. 13. Doolittle Report, 7–8. 14. Doolittle Report, 10. 15. Doolittle Report, 14. 16. Doolittle Report, 17. 17. John Ranelagh, The Agency: The Rise and Decline of the CIA (New York: Simon & Schuster, 1987), 278. 18. Peter Grose, Gentleman Spy: The Life of Allen Dulles (Boston: Houghton Mifflin, 1994), 445–48; also the CIA’s Center for the Study of Intelligence Newsletter 3 (Spring 1995): 3–4. In writing this book, Grose reported using notes Arthur M. Schlesinger Jr. discovered in the Robert Kennedy Papers before they were deposited at the John F. Kennedy Library, 598, nn. 33 and 34. Reportedly, the JFK Presidential Library has unsuccessfully searched the RFK papers for the report.

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19. Grose, Gentleman Spy, 446; from excerpts of the Schlesinger notes. 20. Grose, Gentleman Spy, 446; this observation is also taken from excerpts of the Schlesinger notes. 21. Grose, Gentleman Spy, 447. 22. Grose Gentleman Spy, 447–48; from excerpts of the Schlesinger notes. 23. Grose, Gentleman Spy, 532. 24. “Sheep-dipped” is a colloquial intelligence term used for administrative arrangements designed to ensure that the origin of a person or object is nontraceable. 25. The report was published as Operation Zapata: The “Ultrasensitive” Report and Testimony of the Board of Inquiry on the Bay of Pigs (Frederick, MD: University Publications of America, 1981), hereafter cited as the Taylor Report, 40. 26. Taylor Report, 43. 27. Taylor Report, 38. 28. Taylor Report, 39–40. 29. Lyman B. Kirkpatrick Jr., “Paramilitary Case Study—Bay of Pigs,” Naval War College Review (November–December 1972). By the same author, see The U.S. Intelligence Community: Foreign Policy and Domestic Activities (New York: Hill and Wang, 1973). 30. Evan Thomas, The Very Best Men, Four Who Dared: The Early Years of the CIA (New York: Simon & Schuster, 1995), 268. Thomas was given special permission to review the report for use in his book even though it remains classified. 31. A Review of the Intelligence Community, 10 March 1971, hereafter cited as the Schlesinger Report, 1. 32. Schlesinger Report, 8–9. 33. Schlesinger Report, 13. 34. Schlesinger Report, 25–33. 35. U.S., Commission on the Organization of the Government for the Conduct of Foreign Policy, Report, June 1975, pp. 100–101. 36. Commission on Organization of the Government, 101. 37. An informed account of the Church Committee’s work is Loch K. Johnson, A Season of Inquiry: Congress and Intelligence, 2nd ed. (Chicago: Dorsey, 1988). 38. U.S. Congress, Senate, 94th Congress, 2nd session, Select Committee to Study Governmental Operations with respect to Intelligence Activities, Foreign and Military Intelligence, Final Report, Book I, S. Rept. 94–755, 26 April 1976; hereafter cited as the Church Committee Report. 39. Church Committee Report, 434–35. 40. Church Committee Report, 435. 41. U.S. Congress, House of Representatives, 94th Congress, 2nd session, Select Committee on Intelligence, Recommendations of the Final Report of the House Select Committee on Intelligence, H. Rept. 94–833, 11 February 1976. 42. U.S. Congress, Senate, 94th Congress, 2nd session, Committee on Government Operations, Oversight of U.S. Government Intelligence Functions, Hearings, 21 January to 6 February 1976, 203–4. 43. In his book Secrets, Spies, and Scholars (Washington, DC: Acropolis, 1976). 44. The effort to pass intelligence charter legislation is described in John M. Oseth, Regulating U.S. Intelligence Operations: A Study in Definition of the National Interest

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(Lexington: University Press of Kentucky, 1985); also, Frank J. Smist Jr., Congress Oversees the United States Intelligence Community, 2nd ed., 1947–1994 (Knoxville: University of Tennessee Press, 1994). 45. Executive Order 11905, 18 February 1976, United States Foreign Intelligence Activities, as summarized in Alfred B. Prados, Intelligence Reform: Recent History and Proposals, CRS Report 88–562 F, 18 August 1988, 18; hereafter cited as Prados, 88–562 F. (Out of print report; available upon request from the author.) 46. Executive Order 12036, 24 January 1978, United States Intelligence Activities; hereafter cited as Executive Order 12036. 47. Lowenthal, U.S. Intelligence, 107. 48. Bruce W. Watson, Susan M. Watson, and Gerald W. Hopple, United States Intelligence: An Encyclopedia (New York: Garland, 1990), 231. 49. Section 1.5(a), Executive Order 12333, 4 December 1981, United States Intelligence Activities. 50. Executive Order 12333, Section 1.5 (d,e,h). 51. Lowenthal, U.S. Intelligence, 107. 52. See Oseth, Regulating U.S. Intelligence Operations, especially 155. 53. In his book Secrecy and Democracy: The CIA in Transition (Boston: Houghton Mifflin, 1985). 54. Turner, Secrecy and Democracy, 273. 55. U.S., President’s Special Review Board, Report, 1987, V-5–V-6. 56. U.S. Congress, 100th Congress, 1st session, Senate Select Committee on Secret Military Assistance to Iran and the Nicaraguan Opposition and U.S. House of Representatives Select Committee to Investigate Covert Arms Transactions with Iran, Report of the Congressional Committees Investigating the Iran-Contra Affair with Supplemental, Minority, and Additional Views, S. Rept. 100–216/H. Rept. 100–433, 17 November 1987, hereafter cited as the Iran-Contra Report, 423–27. 57. Iran-Contra Report, 583–86. 58. Report of the Commission on the Roles and Capabilities of the United States Intelligence Community, Preparing for the 21st Century: An Appraisal of U.S. Intelligence (Washington, DC: Government Printing Office, 1996); hereafter cited as An Appraisal of U.S. Intelligence. 59. An Appraisal of U.S. Intelligence, xix. 60. An Appraisal of U.S. Intelligence, xxi. 61. U.S. Congress, 104th Congress, House of Representatives, Permanent Select Committee on Intelligence, Staff Study, IC21: Intelligence Community in the 21st Century, 9 April 1996; hereafter cited as IC21. 62. IC21, 9. 63. “September 11 and the Imperative of Reform in the U.S. Intelligence Community,” Additional Views of Senator Richard C. Shelby, Vice Chairman, Senate Select Committee on Intelligence, 10 December 2002. 64. “September 11 and the Imperative of Reform,” 18. 65. U.S., National Commission on Terrorist Attacks Upon the United States, The 9/11 Commission Report, July 2004, 410. 66. For further background on the 9/11 Commission proposals, see CRS Report RL32506, The Position of Director of National Intelligence: Issues for Congress.

Bibliography

SPECIFIC JOURNAL ARTICLES AND BOOKS ON INTELLIGENCE AND ETHICS Allhof, Fritz. “Terrorism and Torture.” International Journal of Applied Philosophy 17 (2003): 105–18. American Journal of Bioethics 7, no. 5 (May 2007): 3–26. “Neuroethics and National Security,” with “Open Peer Commentaries.” Andregg, Michael. “Intelligence Ethics: Laying the Foundation for the Second Oldest Profession.” In Handbook of Intelligence Studies, edited by Loch K. Johnson, 52–63. London: Routledge, 2007. ———. Intelligence Ethics: The Definitive Work of 2007—An Outrageously Ambitious Title. St. Paul, MN: Center for the Study of Intelligence and Wisdom, 2007. An abridged version of this booklet appears as the article “Ethics Intelligence Symposiom.” In Intelligence and National Security 24, no. 3, June 2009. Ball, Howard. Prosecuting War Crimes and Genocide: The Twentieth-Century Experience. Lawrence: University Press of Kansas, 1999. Barry, John. “Covert Action Can Be Just.” Orbis (Summer 1993): 375–90. Beitz, Charles. “Covert Intervention as a Moral Problem.” Ethics and International Affairs 3 (1989): 45–60. Bellamy, Alex J. “No Pain, No Gain? Torture and Ethics in the War on Terror.” International Affairs 2 (2006): 121–48. Bloomfield, Lincoln P., Jr. “The Legitimacy of Covert Action: Sorting Out the Moral Responsibilities.” International Journal of Intelligence and Counterintelligence 4, no. 4 (Winter 1990): 525–37. Bok, Sissela. Lying: Moral Choice in Public and Private Life. New York: Vintage, 1979. ———. Secrets: On the Ethics of Concealment and Revelation. New York: Vintage, 1984. 237

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Bowden, Mark. “The Dark Art of Interrogation.” In Road Work, 71–110. London: Atlantic, 2004. Browning, Christopher. Path to Genocide: Essays on Launching the Final Solution. New York: Cambridge University Press, 1992. Bruemmer, Russell J. “The Prohibition on Assassination: A Legal & Ethical Analysis.” In In the Name of Intelligence: Essays in Honor of Walter Pforzheimer, edited by Hayden B. Peake and Samuel Halpern, 137–65. Washington, DC: NIBC Press, 1994. Canon, David. “Intelligence and Ethics: The CIA’s Covert Operations.” Journal of Libertarian Studies 4, no. 2 (Spring 1980): 197–214. Chapman, Robert D. “Lies, Torture, and Humanity.” International Journal of Intelligence and Counterintelligence 20, no. 1 (Spring 2007): 188–94. Colby, William E. “Public Policy, Secret Action.” Ethics and International Affairs 3 (1989): 61–71. Cullen, Peter M. “The Role of Targeted Killing in the Campaign against Terror.” Joint Force Quarterly 48 (1st Quarter 2008): 22–29. Davis, Michael. “The Moral Justification of Torture and Other Cruel, Inhuman, or Degrading Treatment.” International Journal of Applied Philosophy 19 (2005): 161–78. Defense Intelligence Journal. [Special Issue on Ethics] 16, no. 1 (2007). Dershowitz, Alan M. Why Terrorism Works: Understanding the Threat, Responding to the Challenge. Melbourne, Australia: Scribe Publications, 2003. Donovan, Leslie A. “Citizens as Intelligence Volunteers: The Impact of Value Structures.” International Journal of Intelligence and Counterintelligence 18, no. 2 (Summer 2005): 239–45. Ericson, Paul G. “The Need for Ethical Norms.” Studies in Intelligence 36, no. 5 (1992): 15–18. Erskine, Toni. “‘As Rays of Light to the Human Soul?’ Moral Agents and Intelligence Gathering.” Intelligence and National Security 19, no. 2 (Summer 2004): 359–81. Gendron, Angela. “Just War, Just Intelligence: An Ethical Framework for Foreign Intelligence.” International Journal of Intelligence and Counterintelligence 18, no. 3 (Fall 2005): 398–434. Godfrey, E. Drexel. “Ethics and Intelligence.” Foreign Affairs 56, no. 3 (April 1978): 624–42. See response by Arthur L. Jacobs, “Comments & Correspondence,” Foreign Affairs 56, no. 4 (July 1978): 867–75. Goldman, Jan. “Ethics of Spying.” Defense Intelligence Journal 14, no. 2 (2005): 45–52. Goldman, Jan, ed. Ethics of Spying: A Reader for the Intelligence Professional. Lanham, MD: Scarecrow Press, 2005. ———. “Ethics.” Defense Intelligence Journal 16, no. 1 (2007). Greene, Dorian D. “Ethical Dilemmas Confronting Intelligence Agency Counsel.” Tulsa Journal of Comparative & International Law 2 (Fall 1994): 91ff. Hanne, William G. “Ethics in Intelligence.” Military Intelligence 8, no. 1 (1982): 6–8. Herman, Michael. “Ethics and Intelligence after September 2001.” Intelligence and National Security 19, no. 2 (Summer 2004): 342–58.

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———. “Intelligence Services and Ethics in the New Millennium.” Irish Studies in International Affairs 10 (1999): 260–61. ———. “Modern Intelligence Services: Have They a Place in Ethical Foreign Policies?” In Agents for Change: Intelligence Services in the 21st Century, edited by Harold Shukman, 287–311. London: St. Ermin’s, 2000. Hook, Sidney. “Intelligence, Morality, and Foreign Policy.” Freedom at Issue 25 (March–April 1976): 3–7. Hulnick, Arthur S., and David W. Mattausch. “Ethics and Morality in United States Secret Intelligence.” Harvard Journal of Law & Public Policy 12, no. 2 (Spring 1989): 509–22. Johnson, William R. “Ethics and Clandestine Collection.” Studies in Intelligence 27, no. 1 (Spring 1983): 1–8. Jones, R. V. Reflections on Intelligence. London: Heinemann, 1989/Mandarin, 1990. Langan, John. “Moral Damage and the Justification of Intelligence Collection from Human Sources.” Studies in Intelligence 25, no. 2 (Summer 1981): 57–64. Lasswell, Harold D. “The Relation of Ideological Intelligence to Public Policy.” Ethics 53, no. 1 (October 1942): 25–34. Lefever, Ernest W., and Roy Godson. The CIA and the American Ethic: An Unfinished Debate. Washington, DC: Ethics and Public Policy Center, Georgetown University, 1979. Leigh, Ian, Loch K. Johnson, and Hans Born. Who’s Watching the Spies? Establishing Intelligence Service Accountability. Washington, DC: Potomac, 2005. Miles, Steven H. Oath Betrayed: Torture, Medical Complicity, and the War on Terror. New York: Random House, 2007. “Neuroethics and National Security,” with “Open Peer Commentaries.” American Journal of Bioethics 7, no. 5 (May 2007): 3–26. Olson, James M. Fair Play: The Moral Dilemmas of Spying. Washington, DC: Potomac, 2006. Orton, James D. “Cross-National Ethical Dilemmas in Competititve Intelligence.” International Journal of Intelligence and CounterIntelligence 15 (2002): 440–56. Pangle, Thomas. “The Moral Basis of National Security: Four Historical Perspectives.” In Historical Dimensions of National Security Problems, edited by Klaus E. Knorr. Lawrence: University Press of Kansas, 1976. Pekel, Kent. “Integrity, Ethics, and the CIA: The Need for Improvement.” Studies in Intelligence (Spring 1998): 85–94. Perry, David. Partly Cloudy: Ethics in War, Espionage, Covert Action, and Interrogation. Landham, MD: Scarecrow Press, 2009. Pfaff, Tony, and Jeffrey R. Tiel. “The Ethics of Espionage.” Journal of Military Ethics 3, no. 1 (2004): 1–15. Politi, Alessandro. “The Citizen as ‘Intelligence Minuteman.’” International Journal of Intelligence and Counterintelligence 16, no. 1 (Spring 2003): 34–38. Quinlan, Michael. “Just Intelligence: Prolegomena to an Ethical Theory.” Intelligence and National Security 22, no. 1 (February 2007): 1–13. Rustmann, F. W. CIA, Inc: Espionage and the Craft of Business Intelligence. London: Brassey’s, 2002. Shane, Scott. “An Exotic Tool for Espionage: Moral Compass.” New York Times, 28 January 2006.

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Shanahan, Timothy. Philosophy 9/11: Thinking about the War on Terrorism. Chicago: Open Court Press, 2005. Spracher, William C. “Mired in Gray: Juggling Legality, Lawfulness, and Ethics as an Intelligence Professional.” American Intelligence Journal 25, no. 1 (Summer 2007): 63–70. Treverton, Gregory F. “Covert Action and Open Society.” Foreign Affairs 65, no. 5 (Summer 1987): 995–1014. Valcourt, Richard R. “Controlling U.S. Hired Hands.” International Journal of Intelligence and Counterintelligence 2, no. 2 (1988): 163–78.

INTELLIGENCE JOURNALS WITH THE OCCASIONAL ARTICLE ON ETHICS American Intelligence Journal (published by the National Military Intelligence Association) Cryptologic Quarterly (published by the National Security Agency) Intelligence and National Security International Journal of Intelligence and Counterintelligence The Intelligencer (published by the Association For Intelligence Officers) Journal of Intelligence History Studies in Intelligence (published by the Central Intelligence Agency)

JOURNALS WITH ARTICLES ON INTELLIGENCE AND ETHICS Foreign Affairs Foreign Policy International Security Orbis Parameters Policy Review

WEBSITES WITH INTELLIGENCE LITERATURE Central Intelligence Agency Library, https://www.cia.gov/library/index.html. National Defense Intelligence College Publications, http://www.ndic.edu/press/ press.htm. National Security Agency Publications, http://www.nsa.gov/research/publications/ index.shtml. Ransom Clark’s Literature of Intelligence: A Bibliography of Materials, with Essays, Reviews, and Comments, http://intellit.muskingum.edu.

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WEBSITE LISTINGS OF INTELLIGENCE ASSOCIATIONS Armed Forces Communications and Electronics Association (AFCEA), http://www .afcea.org. Association for Intelligence Officers (AFIO), http://www.afio.org. Association of Old Crows (The Electronic Warfare and Information Operations Association), http://www.myaoc.org. Canadian Association for Security and Intelligence Studies, http://www.casis.ca/ english/index.html. Canadian Forces Intelligence Branch Association, http://www.intbranch.org/home-e .html. Intelligence and National Security Alliance (INSA), http://www.insaonline.org. International Association for Intelligence Education (IAFIE), http://www.iafie.org. International Intelligence Ethics Association (IIEA), http://www.intelligence-ethics .org. International Intelligence History Association, http://www.intelligence-history.org. International Studies Association’s Intelligence Studies Section (ISA/ISS), http:// www.iss.loyola.edu. Marine Corps Intelligence Association (MCIA), http://www.mcia-inc.org. The MASINT Association, http://www.masint.org. Military Intelligence Corps Association (MICA), http://www.micorps.org. National Cryptologic Museum Foundation, http://www.cryptologicmuseum foundation.org. National Defense Intelligence Foundation (NDIF), http://www.ndifoundation.org. National Military Intelligence Association (NMIA), http://www.nmia.org. Naval Intelligence Professionals (NIP), http://www.navintpro.org. The OSS Society, http://www.osssociety.org. Security and Intelligence Studies Group (SISG) of the UK Political Studies Association and the British International Studies Association, http://www.sisg.org.uk.

Contributors

George Allen, a thirty-year veteran of U.S. military intelligence and the CIA, is the author of None So Blind: A Personal Account of the Intelligence Failure in Vietnam (Ivan R. Dee, 2001). Randy Balano, Ph.D., is the historian for the Office of Naval Intelligence and also serves on the faculty of the National Defense Intelligence College as a member of Reserve Unit 0966. She holds the rank of Commander in the Navy Reserve. The views and opinions expressed herein by the author do not necessarily represent the policies or position of the U.S. Department of Defense or the U.S. government, and are the sole responsibility of the author. Rebecca Bolton has more than a decade of experience as a U.S. Army human intelligence collector. She holds graduate degrees from the National Defense Intelligence College and the University of Maryland University College. The views and opinions expressed herein by the author do not necessarily represent the policies or position of the U.S. Department of Defense or the U.S. government, and are the sole responsibility of the author. Hans Born, Ph.D., is a senior fellow at the Geneva Centre for the Democratic Control of Armed Forces (DCAF). In this capacity, he has worked on security sector governance programs in eastern Europe, Southeast Asia, the Middle East, and western Africa. He is also a key faculty member of the Master of Advanced Studies Program on Security Policy and Crisis Management at the Federal Institute of Technology (ETH) in Zurich. He is currently undertaking a research project on the accountability of international 243

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intelligence cooperation. His recent publications include Handbook on Human Rights of Armed Forces Personnel (OSCE, 2008), Democratic Control of Intelligence Services: Containing Rogue Elephants (Ashgate, 2007), CivilMilitary Relations in Europe (Routledge, 2006), Making Intelligence Accountable: Legal Standards and Best Practice for Oversight of Intelligence Agencies (DCAF/Parliament of Norway, 2005; in ten languages), Who’s Watching the Spies? Establishing Intelligence Agency Accountability (Potomac, 2005), and a handbook entitled Parliamentary Oversight of the Security Sector: Principles, Mechanisms and Practices (Inter-Parliamentary Union/DCAF, 2003; in forty languages). Toni Erskine is professor in the Department of International Politics at Aberystwyth University in the United Kingdom; Lurie-Murdoch Senior Research Fellow in Global Ethics at RMIT University in Melbourne, Australia (2008–2011); and chair of the International Ethics Section of the International Studies Association (2008–2010). She received a Ph.D. from Cambridge University, where she was also British Academy Postdoctoral Fellow. Her recent publications include Embedded Cosmopolitanism: Duties to Strangers and Enemies in a World of “Dislocated Communities” (Oxford University Press, 2008). Jan Goldman is the editor of Scarecrow Professional Intelligence Education Series. In 2006 he co-organized the first international conference focusing on ethics and intelligence; he is a founding member of the nonprofit International Intelligence Ethics Association. He teaches at the National Defense Intelligence College and Georgetown University. The views and opinions expressed herein by the author do not necessarily represent the policies or position of the U.S. Department of Defense or the U.S. government, and are the sole responsibility of the author. Michael Herman served from 1952 to 1987 in Britain’s Government Communications Headquarters, with secondments to the Cabinet Office (as secretary of the Joint Intelligence Committee) and the Ministry of Defence. Since retiring he has written extensively on intelligence matters, with official clearance. Intelligence Power in Peace and War was published in 1996 by Cambridge University Press in conjunction with the Royal Institute of International Affairs and has been regularly reprinted. His Intelligence Services in the Information Age was published at the end of 2001. He is currently an honorary departmental fellow at Aberystwyth University and an associate member of Nuffield College Oxford, where he is founder and director of the Oxford Intelligence Group. He has received the degree of honorary D.Litt from Nottingham University, where he is special professor of intelligence.

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Jennifer Morgan Jones currently works for the Canadian Foreign Service and holds a MScEcon in intelligence studies and international history from the University of Wales, Aberystwyth, UK. Gary T. Marx is professor emeritus at the Massachusetts Institute of Technology. He has also taught at the University of California, Harvard University, the University of California, and the University of Colorado. He has published articles in academic and popular journals and is the author of several books, including Protest and Prejudice: A Study of Belief in the Black Community (Harper & Row, 1967) and Undercover: Police Surveillance in America (University of California Press, 1988). He is editor of Racial Conflict: Tension and Change in American Society (Little, Brown, 1971), Muckraking Sociology: Research as Social Criticism (Transaction, 1972), and Undercover: Police Surveillance in Comparative Perspective (with C. Fijnaut; Kluwer, 1995). Marx was named the American Sociological Association’s Jensen Lecturer for 1989–1990. He has received the Distinguished Scholar Award from its section on Crime, Law, and Deviance; the Silver Gavel Award from the American Bar Association; and the Bruce C. Smith Award for research achievement. In 1992 he was the inaugural Stice Memorial lecturer in residence at the University of Washington, and he has been a UC Irvine chancellor’s distinguished fellow and the A.D. Carlson Visiting Distinguished Professor in the Social Sciences at West Virginia University and Harvey Mudd College. He received fellowships from the Guggenheim Foundation, the Center for Advanced Study in the Behavioral Sciences, and the Woodrow Wilson Center. He received his Ph.D. from the University of California at Berkeley. Additional information is at www.garymarx.net. Steven Miles, MD, is professor of medicine at the University of Minnesota Medical School in Minneapolis and is on the faculty of the University’s Center for Bioethics. He is board certified in Internal Medicine and Geriatrics and teaches and practices at the University of Minnesota. He has served as president of the American Society of Bioethics and Humanities and received its Distinguished Service Award. He has published 3 books and more than 20 chapters and 120 peer-reviewed articles on medical ethics, human rights, tropical medicine, end-of-life care, and geriatric health care. His latest book, Oath Betrayed: Torture, Medical Complicity, and the War on Terror (Random House, 2007), examines military medicine in the war on terror prisons. The Hippocratic Oath and the Ethics of Medicine (Oxford University Press, 2004), reviews the meaning of the Hippocratic Oath as illuminated by the medical texts of its time. John Radsan is a professor of law at William Mitchell College of Law in St. Paul, Minnesota, and was previously assistant general counsel at the Central

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Intelligence Agency from 2002 to 2004. The views and opinions expressed herein by the author do not necessarily represent the policies or position of the U.S. government, and are the sole responsibility of the author. Shlomo Shpiro, Ph.D., is the director of the Center for International Communications and Policy and senior lecturer at the Department of Political Studies at Bar-Ilan University in Israel. Formerly director of the Israeli Government Ministries Security Unit, he was later research coordinator at the Israeli Parliament (Knesset). He specializes in intelligence, terrorism, and communications, and has worked at leading universities in Europe and Israel. Aidan Wills is a researcher at the Geneva Centre for the Democratic Control of Armed Forces (DCAF) in Switzerland. His current research focuses on intelligence oversight structures and intelligence reform in transition states. He is currently coordinating a project on the accountability of international intelligence cooperation, and is a coauthor of a forthcoming handbook on this subject, as well as a forthcoming article: “Narrowing the Accountability Gap? The European Parliament and Parliamentary Assembly of the Council of Europe Inquiries into Illegal Transfers and Secret Detentions.” He holds a first-class honors degree in political science from the University of Nottingham, UK, and a master’s degree in international affairs from the Graduate Institute of International and Development Studies, Geneva.