Intelligence Dilemma? Contemporary Counter-terrorism in a Liberal Democracy

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<ul><li><p>This article was downloaded by: [New York University]On: 07 October 2014, At: 12:15Publisher: RoutledgeInforma Ltd Registered in England and Wales Registered Number: 1072954 Registeredoffice: Mortimer House, 37-41 Mortimer Street, London W1T 3JH, UK</p><p>Intelligence and National SecurityPublication details, including instructions for authors andsubscription information:</p><p>Intelligence Dilemma? ContemporaryCounter-terrorism in a LiberalDemocracyJulian RichardsPublished online: 05 Oct 2012.</p><p>To cite this article: Julian Richards (2012) Intelligence Dilemma? Contemporary Counter-terrorism in a Liberal Democracy, Intelligence and National Security, 27:5, 761-780, DOI:10.1080/02684527.2012.708528</p><p>To link to this article:</p><p>PLEASE SCROLL DOWN FOR ARTICLE</p><p>Taylor &amp; Francis makes every effort to ensure the accuracy of all the information (theContent) contained in the publications on our platform. However, Taylor &amp; Francis,our agents, and our licensors make no representations or warranties whatsoever as tothe accuracy, completeness, or suitability for any purpose of the Content. Any opinionsand views expressed in this publication are the opinions and views of the authors,and are not the views of or endorsed by Taylor &amp; Francis. The accuracy of the Contentshould not be relied upon and should be independently verified with primary sourcesof information. Taylor and Francis shall not be liable for any losses, actions, claims,proceedings, demands, costs, expenses, damages, and other liabilities whatsoever orhowsoever caused arising directly or indirectly in connection with, in relation to or arisingout of the use of the Content.</p><p>This article may be used for research, teaching, and private study purposes. Anysubstantial or systematic reproduction, redistribution, reselling, loan, sub-licensing,systematic supply, or distribution in any form to anyone is expressly forbidden. Terms &amp;Conditions of access and use can be found at</p><p></p></li><li><p>Intelligence Dilemma? ContemporaryCounter-terrorism in a Liberal</p><p>Democracy</p><p>JULIAN RICHARDS*</p><p>ABSTRACT The post-9/11 period and its emphasis on tackling terrorism has had afundamental impact on the business of intelligence, not least in raising some verydifficult ethical issues to the forefront of debate. Many of these issues are intertwinedwith the business of policing globalisation in the modern era. The changes anddevelopments offer new opportunities in Intelligence Studies for exploring ethics, andthe role of the intelligence function within a modern liberal democracy. The questionsposed by the new threat picture for such states offer something of an intelligencedilemma, which must balance the provision of good security with respecting civilliberties and ensuring the continued support of the population for security andintelligence policy. This article examines the intelligence dilemma within theframework of five dimensions: globalisation, risk and resilience; the question of asurveillance society; the intermestic challenge in the new threat picture; difficultiesaround the use of covert action and cyber capabilities; and partnership risks. The articlesuggests that a deeper analysis of these issues represents opportunities for takingIntelligence Studies in new directions.</p><p>Defining the Intelligence Dilemma</p><p>Ten years on from the terrorist attacks in the US on 11 September 2001,some of the implications for how the intelligence business is, or should be,adapting to the evolving picture of this new threat are starting to becomeclearer. At the same time, some of the difficulties and challenges to theintelligence business posed by contemporary counter-terrorism are also,ominously, starting to emerge from the mist. In many ways, these challengesare causing a renewed focus on serious questions about how an intelligencecapability in a modern liberal democracy should act, and where itsboundaries should rightfully be. Intelligence-gathering has never been astraightforward business in terms of the ethical issues it raises for a liberalsociety. In some ways, the post-9/11 era in which counter-terrorism hastaken on a newly elevated priority in the intelligence world does not mark an</p><p>*Email:</p><p>Intelligence and National SecurityVol. 27, No. 5, 761780, October 2012</p><p>ISSN 0268-4527 Print/ISSN 1743-9019 Online/12/050761-20 2012 Taylor &amp; Francis</p><p>Dow</p><p>nloa</p><p>ded </p><p>by [</p><p>New</p><p> Yor</p><p>k U</p><p>nive</p><p>rsity</p><p>] at</p><p> 12:</p><p>15 0</p><p>7 O</p><p>ctob</p><p>er 2</p><p>014 </p></li><li><p>entirely new beginning. Terrorism threats have been tackled in variousshapes and forms for many years prior to 2001, and the 9/11 attacksthemselves (despite the intelligence failings) did not come out of the blueentirely. In other ways, it could be argued that 9/11 did mark a sudden andcritical watershed, not only in Western foreign policy and national securityposture, but also in the development of intelligence tradecraft and capability.</p><p>Aldrich goes slightly further back in history to the fall of the Berlin Wall in1989, noting that intelligence and globalization in the post-Cold War erahave become increasingly intertwined.1 This has happened in a number ofways. Firstly, rising transnational threats such as international terrorismhave deftly ridden the wave of globalisation.2 In turn, these threats call fordifferent responses from those appropriate to traditional state-on-stateconflicts that dominated national security thinking in earlier eras. Modernthreats arising from globalization are harder to find and track, are morefluid, and are more embedded within civil society. Intelligence, increasingly,has become a mode of policing the underside of globalisation.3</p><p>A notion of security dilemma was a construct that emerged right at thebeginning of the Cold War, in the 1950s, with Herz and Butterfield.4 Thelogic was a Realist one (Mearsheimer described Herz as a pioneer ofoffensive realism),5 whereby states in an essentially anarchic system wouldnaturally suspect one another of nefarious designs and would armthemselves accordingly. The theory seemed to work well for the politics ofthe Cold War and the arms race between East and West, but there wasdebate about what would happen at the end of the Cold War. Writing in theyear that the Soviet Union finally collapsed, Booth suggested that thetraditional notion of the security dilemma will become a less pressingfeature as the institution of war will decline in utility.6 For many, the1990s proved to be a false dawn, however, as conflict and security crisescontinued around the world. As Ripsman and Paul noted of the post-ColdWar era, there is little evidence that globalization has transformed thepursuit of national security, and states still endeavor to protect themselveswith traditional national military apparatuses.7</p><p>Placing together the issues of a continued need for traditional securityresponses despite the changing threat picture, with an enhanced significance</p><p>1R.J. Aldrich, Global Intelligence Co-operation versus Accountability: New Facets to an OldProblem, Intelligence and National Security 24/1 (2009) p.26.2Ibid., p.28.3Ibid., p.29.4N.J. Wheeler, To Put Oneself in the Other Fellows Place: John Herz, the SecurityDilemma and the Nuclear Age, International Relations 22 (2008) p.493.5Ibid., p.494.6K. Booth, Security in Anarchy: Utopian Realism in Theory and Practice, InternationalAffairs 67/3 (July 1991) p.541.7N.M. Ripsman and T.V. Paul, Globalization and the National Security State: A Frameworkfor Analysis, International Studies Review 7 (2005) p.220.</p><p>762 Intelligence and National Security</p><p>Dow</p><p>nloa</p><p>ded </p><p>by [</p><p>New</p><p> Yor</p><p>k U</p><p>nive</p><p>rsity</p><p>] at</p><p> 12:</p><p>15 0</p><p>7 O</p><p>ctob</p><p>er 2</p><p>014 </p></li><li><p>for intelligence in policing the underside of globalisation, I would arguethat a new intelligence dilemma is emerging in the post-Cold War worldalongside the traditional notion of security dilemma. The intelligencedilemma is subtly different, in that it takes account of a gradually increasingpublic expectation of openness and accountability in the activities of theintelligence agencies. This confronts, uneasily, the need to enhance anddevelop intelligence capabilities in order to effectively tackle threats that areperceived to be rising and growing more complex, such as those frominternational terrorism and cyber-attack. The key word at the centre of thenew intelligence dilemma is ethics, and specifically how intelligenceagencies in liberal democracies can maintain their ethical code and valuesin the face of enhancing their capabilities.</p><p>Much good research has been undertaken on ethics and intelligence afterthe end of the Cold War. Some of this has looked generally at the heart ofdarkness of modern intelligence activities post-Cold War and post-9/11,8</p><p>while other studies have focused on specific issues such as the pitfalls ofincreased international intelligence cooperation in fighting terrorism.9 Morefundamental questions of intelligence and ethics in the contemporary erahave received attention from Quinlan, Herman, Gendron, Shelton andGoldman, among others.10 Many of these have noted the assertionsupposedly once made by the CIA officer, Duane Clarridge, that intelligenceethics is essentially an oxymoron.11 In confronting this charge, Quinlan andGendron in particular have looked at whether theories of ethics in warfare,and notably the notion of just war, can suitably be translated to thebusiness of espionage. Others, such as Marx,12 have looked at sectoral issuessuch as the ethics of new surveillance in the age of the Internet, or at the</p><p>8See for example P. Gill, Security Intelligence and Human Rights: Illuminating the Heart ofDarkness?, Intelligence and National Security 24/1 (2009) pp.78102; or L. Scott and R.G.Hughes, Intelligence in the Twenty-first Century: Change and Continuity or Crisis andTransformation?, Intelligence and National Security 24/1 (2009) pp.625; both of whichresulted from the third conference of the Centre for Intelligence and International SecurityStudies (CIISS), University of Aberystwyth, at the University of Wales Conference Centre inGregynog. See L. Scott, R.G. Hughes and M.S. Alexander, Journeys in Twilight, Intelligenceand National Security 24/1 (2009) p.1.9See for example, Aldrich, Global Intelligence, p.29.10M. Quinlan, Just Intelligence: Prolegomena to an Ethical Theory, Intelligence andNational Security 22/1 (2007) pp.113; M. Herman, Ethics and Intelligence after September2001, Intelligence and National Security 19/2 (2004) pp.34258; A. Gendron, Just War,Just Intelligence: An Ethical Framework for Foreign Espionage, International Journal ofIntelligence and CounterIntelligence 18/3 (2005) pp.398434; A.M. Shelton, Framing theOxymoron: A New Paradigm for Intelligence Ethics, Intelligence and National Security 26/1(2011) pp.2345; J. Goldman (ed.), The Ethics of Spying: A Reader for the IntelligenceProfessional (Lanham, MD: Scarecrow Press 2006).11Cited in Quinlan, Just Intelligence, p.1.12G.T. Marx Ethics for the New Surveillance, The Information Society 14/3 (1998) pp.17185.</p><p>Contemporary Counter-terrorism in a Liberal Democracy 763</p><p>Dow</p><p>nloa</p><p>ded </p><p>by [</p><p>New</p><p> Yor</p><p>k U</p><p>nive</p><p>rsity</p><p>] at</p><p> 12:</p><p>15 0</p><p>7 O</p><p>ctob</p><p>er 2</p><p>014 </p></li><li><p>more general question of political and security ethics in a period ofinternational, indeed transnational, terrorism, as has Ignatieff.13</p><p>Ethical approaches to intelligence have varied along a spectrum, withRealist approaches at one end (which consider it appropriate to protect thenational interest in an anarchical world by whichever means are necessary),and Deontological approaches at the other (which consider that all forms ofintelligence-gathering are fundamentally unethical).14 An example of theformer would be the justification of the use of waterboarding onterrorist suspects by the US authorities after 2001, while an example ofthe latter might be the suggestion by certain human rights groups thatWestern nations should cease all dealings with intelligence and securityagencies in countries where terrorist and other detainees are frequentlytortured. In the middle of the spectrum sits the Consequentialistapproach, characterized by Hermans ethical balance sheet,15 in whichintelligence agencies make daily judgements on what it is proportionateand necessary to do to protect national security, while sticking as far aspossible to high-level statements of ethical behaviour such as theEuropean Convention on Human Rights (ECHR). There is much evidencethat most Western intelligence agencies sit very much within theConsequentialist space at the time of writing.</p><p>Linked to question of ethics and intelligence is that of legality, andperennial questions of keeping within both the letter and the spirit of thelaw. In the UK, the notions of proportionality and necessity, which are partof the operational authorization process, are derived from the Human RightsAct, which allows the government to deviate from the right to the protectionof privacy of the individual, on valid and appropriate national securitygrounds. Proportionality and necessity are not black-and-white concepts,however, but more a case of value-judgement depending on the circum-stances. Omand suggests that it is difficult to overstate the overall impact inrecent years of . . . legislation on the ethos of the UK agencies in creating adisciplined culture within the agencies, while enabling them to carry out afull range of intelligence gathering operations for authorized purposes.16</p><p>How far such a disciplined culture has always acted in accordance with thelaw will be tested with the forthcoming Detainee Enquiry under Sir PeterGibson, which will look at whether British intelligence agencies werecomplicit in torture when dealing with foreign partner agencies on theinterviewing of terrorist suspects.</p><p>On the domestic UK front, Bamford looked at the effectiveness of Britishintelligence in fighting the terrorists associated with the Northern IrelandTroubles, concluding that it was largely successful from the point of view</p><p>13M. Ignatieff, The Lesser Evil: Political Ethics in an Age of Terror (Edinburgh: EdinburghUniversity Press 2004).14See J. Richards, The Art and Science of Intelligence Analysis (Oxford: Oxford UniversityPress 2010), p.88.15Herman, Ethics and Intelligence, p.345.16D Omand, Securing the State (London: C. Hurst and Co 2010), p.284.</p><p>764 Intelligence and National Security</p><p>Dow</p><p>nloa</p><p>ded </p><p>by [</p><p>New</p><p> Yor</p><p>k U</p><p>nive</p><p>rsity</p><p>] at</p><p> 12:</p><p>15 0</p><p>7 O</p><p>ctob</p><p>er 2</p><p>014 </p></li><li><p>of preventing attacks despite some concerns over specific aspects of thepolicy such as stop and search and the targeting of specific suspectcommunities.17 Campbell and Connolly, meanwhile, have taken a morecritical...</p></li></ul>


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