What's the Harm

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What's the Harm? The Ethics ofIntelligence CollectionRoss Bellaby

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To cite this article: Ross Bellaby (2012): What's the Harm? The Ethics of Intelligence Collection,Intelligence and National Security, 27:1, 93-117

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What’s the Harm? The Ethics ofIntelligence Collection

ROSS BELLABY*

ABSTRACT As the professional practice of intelligence collection adapts to thechanging environment and new threats of the twenty-first century, many academicexperts and intelligence professionals call for a coherent ethical framework thatoutlines exactly when, by what means and to what ends intelligence is justified. Reportsof abuse at detention centres such as Guantanamo Bay and Abu Ghraib, the everincreasing use of technological surveillance, and the increased attention on the use oftorture for intelligence collection purposes have all highlighted a need to make anexplicit statement about what is and what is not permissible intelligence practice. Inthis article an ethical framework will be established which will outline under whatcircumstances the use of different intelligence collection activities would be permissible.This ethical framework will first underline what it is about intelligence collection that is‘harmful’ and, therefore, should be prohibited under normal circumstances. The ethicalframework then outlines a set of ‘just intelligence principles’, based on the just wartradition, which delineate when the harm caused can be justified. As a result, this articleoutlines a systemic ethical framework that makes it possible to understand whenintelligence collection is prohibited and when it is permissible.

Introduction: Intelligence and Ethics

As the professional practice of intelligence adapts to the changingenvironment and new threats of the twenty-first century, many academicexperts and intelligence professionals call for a coherent ethical frameworkthat outlines exactly when, by what means and to what ends intelligence isjustified. For Sir Michael Quinlan there is ‘no area of human activity,whether public or private’, that can claim ‘an a priori entitlement to requirethe moralist to be silent’, and intelligence should be no exception.1 Indeed,reports of abuse at Guantanamo Bay and Abu Ghraib, allegations ofextraordinary rendition programmes, and the ever-increasing pervasivenessof the ‘surveillance state’, have highlighted the need for a coherent,systematic review of the place currently occupied by ethics in intelligence.

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

Intelligence and National SecurityVol. 27, No. 1, 93–117, February 2012

ISSN 0268-4527 Print/ISSN 1743-9019 Online/12/010093-25 ª 2012 Taylor & Francis

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It is partially because of these controversies that a focus on ethical (andassociated legal) issues is emerging in the field of intelligence.2

In recent years several specific cases have underlined the need forexplicitness regarding what should be acceptable intelligence practice.Torture, for example, is an issue at the forefront of the debate regardingwhat standards should be expected from a state and its intelligence agencies.Inhumane treatment of Binyam Mohamed at Guantanamo Bay, in Pakistanand Morocco, and his claims that he was subject to a CIA-run extraordinaryrendition programme have, for example, raised public outcry and forced theBritish government to announce a judge-led inquiry into how such activitieswere allowed to happen.3 Furthermore, in American politics, the issue oftorture and the legitimate treatment of terrorist suspects held centre stage formuch of the Bush administration and casts a long shadow onto the Obamaadministration.4

Concern has also arisen over the growing ability and tendency ofintelligence and security services to intercept, monitor, and retain personaldata in an increasingly computer-centred world. The 2009 UK House ofLords report, Surveillance: Citizens and the State, highlighted significantanxiety regarding the possible threat surveillance practices have to individualprivacy. The report sought to stress the need to review CCTV camera usage,internet traffic monitoring, DNA databases and wiretaps, questioning therole they should have in a western liberal society.5

2M. Andregg et al., ‘A Symposium on Intelligence Ethics’, Intelligence and National Security24/3 (2009) pp.365–85; T. Erskine, ‘‘‘As Rays of Light to the Human Soul?’’ Moral Agentsand Intelligence Gathering’ in L.V. Scott and Peter D. Jackson (eds.) UnderstandingIntelligence in the Twenty-First Century: Journeys in Shadows (London: Routledge 2004)pp.195–215 (and Intelligence and National Security 19/2 (2004) pp.359–81); A. Gendron,‘Just War, Just Intelligence: An Ethical Framework for Foreign Espionage’, InternationalJournal of Intelligence and Counter-Intelligence 18/3 (2005) pp.398–434; D. Omand,‘Reflections on Secret Intelligence’ in Peter Hennessy (ed.) The New Protective State:Government, Intelligence and Terrorism (London: Continuum 2007); T.R. Pfaff and J.R.Tiel, ‘The Ethics of Espionage’, Journal of Military Ethics 3/1 (2004) pp.1–15; Quinlan, ‘JustIntelligence’, pp.1–13.3Intelligence and Security Committee, ‘Rendition’ chaired by Rt. Hon. Paul Murphy (July2007) cm.7171 p.33, 5http://www.fas.org/irp/world/uk/rendition.pdf4. Also see S. Grey,Ghost Plane: The True Story of the CIA Torture Program (New York: St. Martin’s Press2006) p.53.4See K. Anderson ‘What to do with Bin Laden and Al Qaeda Terrorists?: A Qualified Defenceof Military Commissions and United States Policy on Detainees at Guantanamo Bay NavalBase’, Harvard Journal of Law and Public Policy 25/2 (2001) pp.591–635; J.S. Clover‘‘‘Remember, We’re the Good Guys’’: The Classification and Trial of the GuantanamoDetainees’, South Texas Law Review 45/1 (2003) pp.351–95; A. Dershowitz, Why TerrorismWorks: Understanding the Threat, Responding to the Challenge (London: Yale UniversityPress 2002).5House of Lords: Select Committee on the Constitution, Surveillance: Citizens and the State2nd Report of Session 2008–09 (February 2009) x70, 84, pp.20–2. Also see Sir ChristopherRose, Chief Surveillance Commissioner Report on Two Visits by Sadiq Khan MP to Babar

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Subsequently, it is no longer deemed viable for intelligence communities tomaintain their shadowy existence, free to act out of sight and out of mind.The Council of Europe’s Parliamentary Assembly has, for example,expressed dissatisfaction with the current standards and mechanisms appliedto intelligence practices. It has called for the drafting of a European code ofintelligence ethics and to subject intelligence agencies to ‘codes of conduct,accompanied by robust and thorough supervision’.6 If liberal democraciesare to be seen abiding by the rules, norms and ideals to which they subscribe,then so must their intelligence communities. However, while there is clearlya need for an explicit statement on acceptable and unacceptable behaviourfrom intelligence agencies, what is less clear is what an appropriate ethicalframework should look like.

At the centre of the topic of ‘intelligence ethics’, often ridiculed as‘oxymoronic’,7 is the tension between the belief that ‘there are aspects of theintelligence business, as practised by all major countries, that seem notablydisreputable’,8 and the argument that ‘without secret intelligence we will notunderstand sufficiently the nature of some important threats that face us’;9

that political communities have an ethical obligation to act so as to protectits people. ‘Princes are obliged by the law of nature’, in the formulation ofThomas Hobbes, ‘to make every effort to secure the citizens’ safety . . . theymay not do otherwise.’10 As a result, intelligence communities face a tensioncreated by, on the one hand, the duty to protect the political community and,on the other hand, the reality that intelligence collection may entail activitiesthat negatively affect individuals. The aim of this article is, therefore, to dealwith this tension by establishing a two-part ethical framework that outlinesthose parts of intelligence collection that might be considered ethically

Ahmad at HM Prison Woodhill, presented to Parliament by the Secretary of State for theHome Department (February 2008), Cmnd.7336.6Parliamentary Assembly of the Council of Europe, Democratic Oversight of the SecuritySector in Member States, Recommendation 1713 (Strasbourg, 23 June 2005); ParliamentaryAssembly of the Council of Europe, Committee on Legal Affairs, Secret Detentions andIllegal Transfers of Detainees by Council of Europe Member States Doc.11302 (Strasbourg11 June 2007).7D. Claridge, quoted in Quinlan, ‘Just Intelligence’, p.1; J.M. Jones, ‘Is Ethical Intelligence aContradiction in Terms?’ in J. Goldman (ed.) Ethics of Spying: A Reader for the IntelligenceProfessional Volume 2 (Plymouth: Scarecrow Press 2010) p.21.8Quinlan, ‘Just Intelligence’, p.1.9D. Omand, ‘Reflections on Secret Intelligence’, p.116.10Thomas Hobbes, De Cive [On the Citizen], ed. and trans. by Richard Tuck and MichaelSilverthorne (Cambridge: Cambridge University Press 1998) p.19. There are two main ethicalarguments for this position. The first argument is based on the ontological justifications forwars of self-defence drawn from the ‘domestic analogy’ whereby the ethical argument for theindividual defending himself is extrapolated ‘up’ onto the state. The second moral argument isbased on the argument that ‘allows one to justify courses of action with reference to the goodof the political community’ and ‘maintains that acting in the national interest is itselfcomplying with a moral principle’. Erskine, ‘Rays of Light’, p.364.

The Ethics of Intelligence Collection 95

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unacceptable while incorporating the pivotal role intelligence plays inprotecting the political community.

The first part of the ethical framework will argue that the reason whyintelligence collection might be considered ‘ethically unacceptable’ isbecause of the ‘harm’ it can cause the individual.11 By understanding thisnegative aspect of intelligence is it then possible to determine if and whenintelligence collection is justifiable. In order to achieve this, the second partof the ethical framework will argue for a set of just intelligence principles.These principles are a set of criteria based on the just war tradition that, bymaking reference to the principles of just cause, legitimate authority, rightintention, last resort, proportionality and discrimination, then make itpossible to outline the circumstances under which the harm caused isjustified.

Harm: Primum Non Nocere – First, Do No Harm?

The first step in establishing an ethic against harm begins with the realizationthat individuals have certain requirements that are both ‘vital’ to their well-being and vulnerable to external interference.12 These ‘vital interests’ are theprerequisites or preconditions that must be maintained if individuals are tofulfil their ultimate goals and aspirations. Joel Feinberg calls theserequirements ‘welfare interests’.13 John Rawls calls them ‘primary goods’.14

Essentially they amount to the same thing – that is, regardless of what one’sconception of the good life might be, these preconditions must be firstsatisfied in order to achieve them. These interests include individuals’physical and mental integrity, their autonomy, liberty, sense of self-worthand privacy. Without these vital interests any individual is unable to pursueother ultimate interests, purposes, goals or plans.15 Of such fundamentalimportance are these interests to the individual that they have intrinsic value.Damaging them can therefore cause harm regardless of the repercussions.That is, even if on balance the individual does not experience the harm in a‘tangible and material’ way, s/he can still be said to be harmed if the vitalinterests are violated or wronged.16 In this way, these interests are a person’smost important ones and thus demand protection.

11‘Intelligence collection’ is the main focus of this article but it is just a single part of a broader‘intelligence process’. Other phases include ‘planning and direction’, ‘process and exploita-tion’, ‘analysis’, and ‘production and dissemination’. See Mark Lowenthal Intelligence: FromSecrets to Policy (Washington, DC: CQ Press 2000) pp.40–52.12J. Feinberg, Moral Limits of the Criminal Law: Vol.1 Harm to Others (Oxford: OxfordUniversity Press 1984) p.37.13Ibid.14John Rawls, Theory of Justice (Cambridge, MA: Harvard University Press 1971) p.62.15The use of the terms ‘plans’, ‘purposes’, ‘goals’, ‘aims’ and ‘desires’ is designed to conveythose general actions carried out by the individual that represent in which direction he wishesto take his life and his general pursuits of an individual, whatever or however he mightbroadly conceive of them.16Feinberg, Harm to Others, p.35.


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Albeit John Mackie urges a measure of scepticism about any idea ofobjective values or cross-cultural statements regarding what it means toharm someone and what values should or should not be respected asimportant to the individual, especially since their content will vary greatlydepending on one’s culture. Nevertheless it is still possible to outline thoseinterests vital to all humans, irrespective of what conception of the good lifethey may hold.17 Indeed, it is possible to isolate those factors of centralimportance in any human life, regardless of what end the person chooses topursue. Martha Nussbaum argues that through a notion of overlappingconsensuses it is possible to outline the core vital interests held by allindividuals, identifiable ‘without accepting any particular metaphysicalconception of the world, any particular comprehensive ethical or religiousview, or even any particular view of the person or human nature’.18 Quitesimply, an individual’s core interests can be determined by isolating thoseaspects of the human condition whereby individuals would be unable tocontinue with their higher or more ultimate wants if they did not have theseinterests maintained. For example, being creatures of flesh and boneinstantly ‘implies mortality, vulnerability’.19 This demonstrates the need toprotect the physical body as one of our most important vital interests.

Importantly, however, protecting the physical body is not all. The need formental integrity, autonomy, liberty, a sense of self-worth and a degree ofprivacy are each vital in an individual’s life. For instance, if the mentalintegrity is damaged then people no longer have the capacity to continue orexperience their life in a ‘truly human way’;20 if their autonomy is distortedor controlled then individuals are unable to formulate what they think theirown life plan should be; if their liberty is restricted then they can no longerarticulate plans; without a sense of self-worth they can become despondentand unwilling to continue with their plans; and finally if their privacy isunduly violated then the effect it can have – for example, anxiety, distrustand the inability to freely express oneself freely – can prevent them fromacting out their life.

‘Harm’, therefore, can quite simply be defined as the violation of anindividual’s most vital interests. This concept of harm, however, is not abinary one whereby individuals exist in a state of un-harm and then areutterly destroyed when their vital interests are damaged. Rather, individuals

17John Mackie, Ethics: Inventing Right and Wrong (London: Penguin 1977); Brian Barry, forexample, observes that all societies have quite a limited range of punishments, such as thedeprivation of money or property, physical confinement, loss of body parts, pain and death,demonstrating that there are things all individuals wish to protect regardless of their personalview of the good life. Brian Barry, Justice as Impartiality (Oxford: Oxford University Press1998) p.88.18Martha Nussbaum, Women and Human Development: The Capabilities Approach(Cambridge: Cambridge University Press 2000) pp.73, 76.19J. Butler, Precarious Lives: The Powers of Mourning and Violence (London: Verso 2004)pp.20, 26.20Nussbaum, Women and Human Development, p.72.


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can have their vital interests affected, violated or damaged to varying degreesdepending on the extent they are affected as the individual.

Vital Interests

The list below represents a set of moral principles designed to demonstratethose vital aspects of the human condition that can be agreed upon by peoplewho might otherwise have very different views regarding how one shouldcarry out one’s life, and the aims one should have.

Physical Integrity

Maintaining the integrity of the physical body is among the mostfundamental interests possessed by an individual. The body is the physicalhome and representation of the self. It is the chief means through which thehuman condition is experienced and then acted out. If the body is damaged itseverely hinders the individual’s ability to actualize any other aspect of thehuman experience. As such, there is, first and foremost, an interest inprotecting the body: ‘virtually any conception of the good life goes better inthe absence of physical injury’.21 In order to maintain this vital interest, theindividual must be left to live life until its natural end; be adequatelynourished and sheltered; be free from absorbing pain and disfigurement; andfinally, to have bodily boundaries respected as sovereign.

In relation to intelligence collection, for example, one of the mostimportant issues intelligence operatives must resolve is what sort of physicaltreatment potentially dangerous suspects can expect. The answer to thisquestion is one that invariably revolves around the issue of pain andthe conditions to which the suspect is subjected. Elaine Scarry calls pain the‘voice of the body’,22 a voice that is all-encompassing in its demand forattention. Pain can completely debilitate the body, making the individualunable to conceive of anything else and forces the body to deal with thecause of the pain immediately. The greater the physical pain the greater thedebilitating effect. Irwin Goldstein notes that pain is one of thoseexperiences which is ‘self-evidently, indisputably, objectively bad; somepeople see it as essentially evil’.23 Even John Mackie, whose central thesis isthat ‘good’ and ‘bad’ designate properties which do not and could not existand thus that no object really is good or bad, grounds robust ontologicalassertions on the premise that evil exists and is flourishing in pain and otherfamiliar phenomena.24 Many types of physical attacks can violate thisinterest, including striking, cutting, amputating or severely damaging thephysical body or actions such as ‘stress positions’ designed to inflictincreasing levels of pain over a period of time.

21Barry, Justice as Impartiality, p.88.22Elaine Scarry, The Body in Pain (New York: Oxford University Press 1985) p.45.23I. Goldstein, ‘Pleasure and Pain: Unconditional, Intrinsic Value’, Philosophy andPhenomenological Research 1/2 (1989) pp.255–76 at p.257.24Ibid., p.255.


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Mental Integrity

If the body is the physical representation of the self, then the ‘psyche’ isthe individual’s metaphysical self, the place where the world isexperienced and actualized. The psyche is responsible for faculty ofreason or the sum of a person’s intellectual capabilities, representing theimmaterial and actuating part of life. To damage this place is to preventthe individual from experiencing, processing or interacting with the worldas s/he normally would. Furthermore, much like physical pain, mentalpain is harmful in and of itself. Having one’s mental integrity blighted byoverwhelming fear, anxiety, abuse or neglect is harmful because of themental pain it causes, aside from any long-lasting psychological damagethat may accompany it. Respecting the interest in mental integrity wouldtherefore prevent any actions that can cause debilitating levels of stress oranxiety to the individual. Again, much like physical integrity, forintelligence collection the importance of this vital interest comes intoplay when discussing what conditions are suitable for interrogating asuspect. To what extent can a suspect be made to experience anxiety orfear as, for example, a means of encouraging him to cooperate.Furthermore, mental integrity becomes an important issue when discuss-ing other intelligence collection activities such as surveillance where theindividual might become unduly paranoid or anxious about beingfollowed.

Autonomy

The concept of autonomy is the capacity for self-rule. That is, one must beable to decide for oneself, without external manipulation or interference,what shape one’s own life will take. As Nussbaum puts it: ‘autonomy isbeing able to form a conception of the good and to engage in criticalreflection about the planning of one’s life – the protection of the liberty ofconscience’.25 Maintaining the integrity of an individual’s autonomyrequires first that the individual’s rational functioning be protected, meaningthat s/he has the capacity to plan, choose, and reflect on options.26 Forexample, drugging individuals violates their rational capability as itphysically prevents them from forming a reasoned decision. Second, inorder for individuals to be autonomous agents it requires that they be free tobe self-directing in that their decision-making process should not beexcessively influenced or controlled by another force. Autonomy iscircumvented if the decision-making process is overly distorted or pressureis applied to alter it. Autonomous agents must be able to act for ‘reasons all

25Nussbaum, Women and Human Development, p.79. Feinberg calls this the ‘condition ofself-government’, and Richard Lindley refers to it as ‘authorship’ and ‘self-rule’, but it isessentially referring to the same phenomenon. See J. Feinberg, ‘The Idea of a Free Man’ in J.F. Doyle (ed.) Educational Judgments (London: Routledge 1973); R. Lindley, Autonomy(Basingstoke: Macmillan 1986).26H. Frankfurt, ‘Freedom of the Will and the Concept of the Person’, Journal of Philosophy68/1 (1971) pp.5–20 at p.7.


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the way down according to their actions and according to their reasons’.27 Ifan outside force puts pressure on an individual’s decision-making processthen the decisions made are not taken in light of the individual’s own wishesor beliefs, but are based on that of the person applying the force. Thepressure will alter the individual’s decisions, forcing activities to be carriedout or beliefs to be held that would not have been otherwise. The individualloses self-mastery, becoming a tool of the will of another.

Acts of deception and manipulation, for example, are harmful inasmuchas they interfere with an individual’s autonomy. Since lies are designed to‘eliminate or obscure relevant alternatives’,28 when people are the victim of adeception their view of reality is distorted and they are forced to act or holdbeliefs based on this distorted view. The victim of the deception is basing hisdecisions on the wishes of the deceiver rather than his own will. Similarly,acts of manipulation violate an individual’s autonomy in that they exert apressure on the individual’s decision-making process in order to encourage acertain response. As a result, the individual’s actions or beliefs become theresult of the manipulation rather than being the result of the individual’swill.

Liberty

Closely connected to the concept of autonomy is the interest an individualhas in liberty. Liberty, as Mill notes, is ‘not the so-called Liberty of theWill . . . but Civil, or Social Liberty: the nature and limits of the powerwhich can be exercised by society over the individual’.29 Whereas autonomyis the freedom to decide one’s will, liberty is the freedom from constraints onacting out that will. As such, liberty is often simply defined as the ‘absence ofinterference or control’,30 and to defend an individual’s liberty is to set alimit on the extent of intervention by other individuals or society. Forexample, if I am prevented by others from doing what I could otherwise do, Iam to that degree ‘unfree’.31 An important issue for liberty and intelligence

27B. Herman, The Practice of Moral Judgement (Harvard University Press 1996) p.228.28S. Bok, Lying: Moral Choice in Public and Private Life (New York: Vintage Books 1979)p.19.29John Stuart Mill, On Liberty, ed. John Gray (Oxford: Oxford University Press 1991) p.5.There is a distinction between ‘social freedom’ (liberty) and ‘freedom of will’ (autonomy)which is demonstrated with the following case: put a man in a cell and convince him that allthe doors are locked, when in fact one is left unlocked. The man is in fact free to leave theroom at any time and, therefore, his liberty is not restricted. But because he is not inpossession of the full information he can not avail himself of this opportunity and thereforewhat he wishes to do is limited. Berlin points out that the question ‘who governs me?’ islogically distinct from the question of ‘how far does government interfere with me?’. I. Berlin,‘Two Concepts of Liberty’ in Four Essays on Liberty (Oxford: Clarendon Press 1958), p.130.30Feinberg, ‘The Idea of a Free Man’, p.7.31Violation of liberty implies the deliberate interference with one’s activities; inability to act isnot to be unfree: ‘the free man is the man who is not in irons, nor imprisoned in a gaol . . . it isnot lack of freedom not to fly like an eagle or swim like a whale’. Berlin, ‘Two Concepts ofLiberty’, p.122.


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collection is the question of when and for how long an individual can bestopped and detained. Often there is a fine balance between being able tocollect information from an individual to understand the threat they poseand the interference this has on the liberty of the individual. Limits on thepowers of authorities to stop and search an individual exist to prevent theviolation of the individual’s liberty. For example, when the UK governmentproposed an increase in the number of days suspected terrorists could bedetained pre-charge to 42 in response to the 7 July 2005 London terroristbombings, the ensuing debate in both the UK House of Lords and theCouncil of Europe’s Parliamentary Assembly was based on the need toprotect the liberty of the individual.32

Human Dignity as Amour-propre: A Sense of One’s Own Self-Worth

Confidence in one’s self-worth is so fundamental that without it one canbecome unable to continue or realize endeavours that are needed to fulfilone’s aspirations. Without self-respect individuals feel worthless; nothing‘seems worth doing’, activities become ‘empty and vain’ and people ‘sinkinto apathy and cynicism’.33

There are two dimensions to an individual’s sense of self-worth; first ishow individuals view themselves and second is how others view them. Thefirst aspect is the result of the argument that one the most important andintimate relationships for anyone occurs ‘every time you look in the mirror’,where ‘you are faced with your closest ally and your, potentially, greatestenemy’.34 When individuals experience shame or humiliation they arelooking at themselves, judging themselves and finding themselves wanting.When humiliation is forced upon an individual by someone one else, s/he isforced to look at themselves through the eyes of this other, they judgethemselves as those eyes would judge them and they then feel degraded insome way.35

The second dimension to the individual’s sense of self-worth is related tohow individuals are viewed by those in their identity group. One of the mostimportant aspects of an individual’s sense of self-worth is the role played byexternal recognition. It is not just how we view ourselves that is important,

32See the Parliamentary Assembly of the Council of Europe, Committee on Legal Affairs andHuman Rights, Proposed 42-day Pre-charge Detention in the United Kingdom Doc.11725(30 September 2008).33Damaging an individual’s sense of self-worth was thus, for John Rawls, a violation of whatperhaps is ‘the most important primary good of all’. Rawls, Theory of Justice, p.386.34J.P. Tangney and R.L. Dearing, Shame and Guilt (London: Guilford Press 2002) p.52.35Normally this involves making the individual look at himself through the eyes of anexternal spectator and to judge himself as that external spectator would do. To be sure, thisexternal spectator does not have to exist physically but rather exists as a metaphor torepresent the new position as compared with the previous unconscious state he thought orhoped or unthinkingly assumed he was in. This observer could be actual or imagined; self- orexternally created; a particular individual, identity group or even a higher power; or quitesimply a set of social constructs and norms which shape our interpersonal lives. G. Taylor,Pride, Shame and Guilt (Oxford: Clarendon Press 1985) p.66.


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but also how the ego thinks others perceive it. This means that reputationplays a vital role in an individual’s sense of self-worth. Name-calling mightnot cause physical injury. Yet it can, even without one’s knowledge, do harminsofar as there is a vital interest in having others think well of oneself.36 If,for example, the individual falls short of the rules or expectations of theiridentity group, s/he runs the risk of losing their respect and therefore losingimportant social and material benefits afforded by their current position –job, money, security, the love and affection of family and friends. Moreover,given that the ‘ego thinks of itself as others think of it’,37 when s/he loses therespect of her/his identity group s/he loses the esteem that s/he had previousgained through them. Individuals draw strength and their own identity fromtheir identity-group and without affirmation individuals can lose their senseof self-worth. Furthermore, they will then view themselves as those aroundthem do, as degraded. Actions designed to humiliate or make the individualfeel in some way degraded are therefore harmful because they aim to makethe individual view her/himself as less than s/he is.

Privacy

Privacy is a term that is often used but rarely has an agreed definition, butrather acts as an umbrella concept covering a vast range of prohibitions andclaims. For some, privacy is a psychological state;38 for others, privacy is theextent to which ‘information about them is communicated to others’.39

Others again see it purely as a physical state of affairs, being separated offfrom the rest of society.40 Regardless of the many definitions, there are two

36H.E. Baber, ‘How Bad is Rape’, Hypatia 2/2 (1987) pp.125–38 at p.126.37B.F. Mannheim, ‘Reference Groups, Membership Groups and the Self Image’, Sociometry29/3 (1966) pp.265–79 at p.266.38M.A. Weinstein, ‘The Uses of Privacy in the Good Life’ in J.R. Pennock and J.W. Chapman(eds.) Privacy: Nomos XIII (New York: Atherton Press 1971) p.94.39A.F. Westin, Privacy and Freedom (London: Bodley Head 1967) p.7. For the ‘limitedaccess’ theory of privacy see A.C. Breckenridge, The Right to Privacy (Lincoln: University ofNebraska Press 1970) p.1; I. Altman, ‘Privacy – A Conceptual Analysis’, Environment andBehaviour 8/1 (1976) pp.7–29; J. Reiman, ‘Privacy, Intimacy, and Personhood’, Philosophyand Public Affairs 5/1 (1976) pp.26–44 at p.42. For ‘selective disclosure’ see C. Fried,‘Privacy: A Moral Analysis’, Yale Law Review 77/1 (1968) pp.475–93; A. Miller, The Assaulton Privacy (Ann Arbor, MI: The University of Michigan Press 1971) p.25; R. Laufer and M.Wolfe, ‘Privacy as a Concept and Social Issue: A Multidimensional Developmental Theory’,The Journal of Social Issues 33/3 (1977) pp.22–42 at p.34.40L. Brandeis and S. Warren, ‘The Right to Privacy’, The Harvard Law Review 4/5 (1980)pp.193–220. For examples of contemporary theorists who define privacy as ‘to be let alone’see: E. Bloustein, ‘Group Privacy: The Right to Huddle’ in E. Bloustein (ed.) Individual andGroup Privacy (New Brunswick, NJ: Transaction Books 1978) p.123; P. Freund, ‘Privacy:One Concept of Many?’ in Pennock and Chapman (eds.) Nomos XIII, pp.182–98; M.Konvitz, ‘Privacy and the Law: A Philosophical Prelude’, Law and Contemporary Problems31/2 (1966) pp.272–80 at p.279; H.P. Monagham, ‘Of Liberty and Property’, Cornell LawReview 62/1 (1977) p.414; F. Beytagh, ‘Privacy and the Free Press: A Contemporary Conflictin Values’, New York Law Forum 20/3 (1975) pp.453–514 at p.455.


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concepts of particular relevance to intelligence collection: privacy asboundaries and privacy as control.

Boundaries mark out areas where outside intrusion is unwelcome. Theseboundaries – both physically manifested or created as a result of sociallyaccepted norms – separate what is private on the inside from everything elseon the outside. Over-stepping the mark, as it were, and violating anestablished boundary means violating the privacy of that person. This viewsprivacy as the ability to separate oneself from the rest of society by settingout spheres of non-intrusion. These boundaries can be physical – walls,clothes, bags for example – or they can be metaphysical social constructionssuch as ‘personal space’. In comparison, privacy as control is the right ofindividuals to control those things pertaining to themselves, that is, ‘thecontrol we have over information about ourselves’41 or the ‘control overone’s personal affairs’.42 Privacy thus conceived is often seen as akin toproperty rights in that ‘one’s actions and their products ‘belong’ to the selfwhich generated them and are to be shared only with those with whom onewishes to share them’.43

Privacy is often seen as a vital interest as a result of both its instrumentalas well as intrinsic worth. It is instrumentally vital since violations of one’sprivacy can result in severe physical, monetary, or social penalties. As longas we live in a society where ‘individuals are generally intolerant of lifestyles, habits and ways of thinking, and where human foibles tend to becomethe objects of scorn or ridicule, our desire for privacy will continueunabated’.44 For example, blackmail gains much of its power from thematerial costs people would suffer if certain acts were to become known.However, privacy is also intrinsically valuable since, regardless of thefinancial or social damage that any privacy violation might cause, anindividual would still want to maintain this right. That is, even those whohave nothing to hide would still object to other people being able to see orlisten to them while they were in private. Many philosophers argue thatthere is a need for a sphere of privacy in order for individuals to relax, findemotional release, self-reflection and self-analysis.45 Even if the individualsare not aware their privacy is being violated, they are still ‘harmed’ insofar astheir vital interest is wronged. For example, a camera inside an individual’shome constitutes a violation of privacy and it can be argued that harm isdone even though s/he might not experience the violation in a tangible or

41Fried, ‘Privacy’, p.475.42H. Gross, ‘Privacy and Autonomy’ in Pennock and Chapman (eds.) Nomos XIII, p.169.43E. Shils, ‘Privacy: Its Constitution and Vicissitudes’, Law and Contemporary Problems 31/2(1966) p.281–306 at p.290. For more on privacy as a property right see Judith J. Thomson,‘The Right to Privacy’, Philosophy and Public Affairs 4/4 (1975) pp.295–314.44W.A. Parent, ‘Privacy, Morality and the Law’, Philosophy and Public Affairs 12/4 (1983)p.267.45See Westin, Privacy and Freedom (1967), p.34; D. Bazelan, ‘Probing Privacy’, Georgia LawReview 2/1 (1997) pp.587–621 at p.588; Weinstein, ‘The Uses of Privacy in the Good Life’,p.99.


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material way. Therefore, for intelligence collection, the interest in privacyfeatures heavily in the debate over the right to be able to communicate inprivate, access the internet in private, control personal information and livein a house free from outside observation.

Intelligence Collection and Harm

It can be argued, therefore, that violating an individual’s vital interestsshould be prevented. An individual’s vital interests are so fundamentallyimportant that without them individuals are unable to continue with theiraims, goals and aspirations. The problem for intelligence collection,however, is that some of the activities it uses can conflict with one ormore of these vital interests, and there is a compelling argument to bemade that the resulting harm should be prohibited. Given thatthe activities involved in and entailed by intelligence collection aremultifarious, it would be impossible in a single study to outline everyway in which intelligence might cause harm. It is, however, importantto demonstrate how intelligence collection can conflict with anindividual’s vital interests and how it consequently has the potential tocause harm.46

Privacy is one of the first vital interests with which intelligence collectioncan quite often come into conflict, especially since much intelligencecollection involves attempts to discover what others wish to keep secret. Anexample is that of communications intelligence. Communicating with otherpeople is an essential human activity, without which planning, organizing orcarrying out any activity is increasingly difficult. The advances in computertechnology have only exaggerated this, with technological means ofcommunication increasingly permeating every aspect of society. Forintelligence organizations, intercepting these communications can be vital.As Mark Lowenthal argues, communication intelligence ‘gives insight intowhat is being said, planned and even considered’ by one’s friends andenemies alike and is as close as one can come, from a distance, to readinganother side’s mind.47 However, by intercepting another’s communications,their privacy is violated. This is because, first, the activity involvesintercepting and utilizing without consent information that is essentiallythe individual’s property, and second, by violating a sphere with a strongexpectation that the individual is ‘in’ private, represented by the cleardistinction between the ‘inside’ of the communication where the message

46It is possible to make the claim that ‘open source’ intelligence is not going to cause harm byvirtue of the fact it involves collecting information that is open to everyone. However, whilethis, in a vast majority of cases, might be true, it is not necessarily so. This is a review of theintelligence collection ‘activities’ rather than the intelligence ‘sources’. The ethical statusalters depending what actions are used rather than the type of sources aimed at. So, whileopen sources will probably not involve the same type of manipulation or deception that secretsources will more likely involve, there is no guarantee that this will always be the case.47Lowenthal, Intelligence: From Secrets to Policy, p.71.


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exists and the ‘outside’ where the rest of society exists.48 There arelongstanding social conventions attaching to the privacy of one’s commu-nications – a notion that is reflected in the famous, and often derided,quotation from then US secretary of state Henry L. Stimson in 1929 that,‘Gentlemen do not read each other’s mail’.49

Surveillance is another example of how intelligence collection can conflictwith an individual’s vital interests as both the individual’s privacy andautonomy can be violated. ‘Surveillance’ can cover a wide range of activitiesfrom CCTV cameras and ‘covert surveillance’50 to dataveillance and data-mining.51 Who the individual ‘is’, where s/he is going, with whom s/he isassociating or what s/he is doing all become the concern of the watchful eye.By collecting individual personal information in this way, an individual’sprivacy and autonomy is violated. The individual’s privacy is violated in thatthe information collected is the individual’s personal property; it pertains totheir actions and personal details. By collecting and collating thisinformation, the individual’s right to control and keep it private is violated.Furthermore, the individual’s autonomy is jeopardized as a result of the

48This inside/outside distinction is still valid despite the advent of wireless technology andcyberspace communications such as emails since even though there might not be the physicalwire to ‘cut-into’, there is still a data-stream, a signal or some notion of the communicationhaving an inside to which only certain individuals are allowed access and an outside wherethe rest of the world exists. Furthermore, there is still an established understanding that eventhough it could nominally be thought that communications are ‘in the air’ they are still‘private’ communications between set individuals.49D. Kahn, The Reader of Gentlemen’s Mail: Herbert O. Yardley and the Birth of AmericanCodebreaking (London: Yale University Press 2004) p.101.50House of Lords: Select Committee on the Constitution, Surveillance: Citizens and the State,2nd Report of Session 2008–09 (February 2009) x85 p.23. See Christopher Northcott, ‘TheRole, Organisation and Methods of MI5’, International Journal of Intelligence andCounterintelligence 20/3 (2007) pp.453–79; R.E. Morgan, Domestic Intelligence: MonitoringDissent in America (Austin, TX: University of Texas Press 1980).51The term dataveillance refers to when the individual is monitored through the digitalfootprint s/he leaves as s/he carries out activities in both the digital and real worlds, or data-mining whereby the individual’s personal details are collected and categorized. The argumentfor dataveillance is based on the premise that ‘the planning of terrorist activity creates apattern or ‘‘signature’’ that can be found in the ocean of transaction data created in the courseof everyday life’. By collecting this data the aim is to create a profile so as to predict a person’sfuture actions or locate specific individuals. See J.X. Dempsey and L.M. Flint, ‘CommercialData and National Security’, The George Washington Law Review 72/1 (2004) pp.1459–502at p.1464; D.J. Solove, The Digital Person: Technology and Privacy in the Information Age(New York: New York University Press 2004) p.23. In response to this new form ofintelligence the American Defence Advanced Research Projects Agency (DARPA) in thePentagon began funding a research project called Total Information Awareness (TIA). TIA’saim was to create a programme of ‘prototypical data mining aimed at discovering andtracking terrorists through the digital paths of their routine transactions’. I. Rubinstein, R.D.Lee and P.M. Schwartz, ‘Data Mining and Internet Profiling: Emerging Regulatory andTechnological Approaches’, The University of Chicago Law Review 75/1 (2008) pp.261–86at p.271; Solove, The Digital Person, p.263.


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effect these collection activities can have on how s/he formulates their ownwill. For example, in George Orwell’s Nineteen Eighty-Four it was not justthe lack of privacy that was so harrowing, but rather the use of surveillanceas a major mechanism for social control. Knowing one is being watched byan asymmetrical gaze forces the target to act as he thinks is expected of him,since he is unable to know if he is actually being scrutinized at any particularpoint in time. For Foucault, ‘he who is subject to a field of visibility, and whoknows it, assumes responsibility for the constraints of power; he makes themplay upon himself; he plays both roles; be becomes the principle of his ownsubjection’.52

Intelligence collection can also violate an individual’s autonomy when ituses deception or manipulation. Using ‘unofficial covers’, for example,whereby an intelligence officer receives a new identity to allow access toareas and people otherwise out of reach, involves extensive levels ofdeception and manipulation. However, by intentionally providing anotherindividual with false information, the intelligence officer is distorting theindividual’s view of reality and therefore forcing the individual intodecisions based on the officer’s terms rather than his own reasons andwishes. How the individual thinks he should act is no longer based on hisown choices but on manipulation by the intelligence officer. Decisions on,for example, whether to trust the officer, how to act around him and whatsecrets one should divulge are all altered by the deceptions used.

Finally, the harm ethic argued here can prove interesting in relation to theattempts during the 2001–9 Bush administration to redefine the parametersof torture. The Bybee Memos were a set of legal memoranda that redefinedtorture as only those activities that were to cause serious physical injury,such as ‘organ failure, impairment of bodily function, or even death’ ormental harm that would prove to last ‘months or even years’.53 However,such redefinitions, it can be argued with reference to the harm ethic,established excessively indulgent parameters of torture, while also ignoringimportant harms to the individual’s sense of self-worth. Examples ofinterrogation tactics used at Abu Ghraib and Guantanamo Bay include,‘breaking chemical lights and pouring the phosphoric liquid on detainees;pouring cold water on naked detainees; beating with rope; sodomising adetainee with a chemical light and a broom stick; and using military workingdogs to frighten and intimidate’;54 ‘hooding, hand cuffing with flexi-cuffs,beatings, slapping, punching, kicking; being paraded round naked outside

52M. Foucault, Discipline and Punish: The Birth of the Prison (Harmondsworth: Penguin1979) p.202.53J.S. Bybee, ‘Memorandum for Alberto R. Gonzales Counsel to the President’, U.S.Department Justice Office of Legal Counsel, 1 August 2002, 5http://www.washingtonpost.com/wp-srv/nation/documents/dojinterrogationmemo20020801.pdf4 (accessed 23April 2006).54A. Tagbua, Article 15-6 Investigation of the 800th Military Police Brigade [The TagubaReport] (4 June 2004) p.17 x8, 5http://www.npr.org/iraq/2004/prison_abuse_report.pdf4(accessed 1 May 2007).


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http://www.washingtonpost.com/wp-srv/nation/documents/dojinterrogationmemo20020801.pdf

http://www.washingtonpost.com/wp-srv/nation/documents/dojinterrogationmemo20020801.pdf

http://www.npr.org/iraq/2004/prison_abuse_report.pdf

the cells; exposure to loud noise; and prolonged exposure to intense sun overseveral hours;55 and even forcing a prisoner to masturbate in front of jeeringcaptors.56 According to the parameters prescribed in the Bybee Memo, theseactivities would not count as torture given that the damage is neither severenor sufficiently long-lasting. In comparison, the harm ethic promoted in thisarticle maintains that these are some of the most serious violations of anindividual’s physical integrity, mental integrity and sense of self-worth. Thephysical and psychological pain experienced is extreme in the immediateinstance, regardless of any long-term effects.57 Moreover, as WilliamTwining and Barrie Paskins note, it is not just the intensity and quality ofphysical pain that is important, but also the special disutility that isassociated with the ‘higher pains’ only available to creatures that canexperience humiliation, shame, dread, anguish, and self-disgust.58

There is, however, clearly a difference between the degrees of harm causedby wiretapping, deception, manipulation, and torture. The differencedepends on first, which of the individual’s vital interests is violated; second,the severity of the violation; and third, the duration of the violation. The firstpoint argues that, all other things being equal, some interests such asphysical and mental integrity can take precedence over the other interestssuch as autonomy, liberty, self-worth or privacy.59 ‘Severity’ refers to thedegree of violation. This is because an individual’s vital interests are notbinary concepts – whole one minute and destroyed the next – but canexperience a partial loss. For instance, there are various types of privacyspheres, and depending on how personal or intimate the sphere that isviolated is the degree to which the individual’s privacy is damaged is altered.By altering the severity of the violation one alters the level of harm caused.Finally, the degree of harm produced can depend on the temporal quality ofthe activity. This is because if acts of low severity become ‘prolonged, recurcontinuously or occur at strategically untimely moments’ they becomechronic distractions and can begin to impede even those interests that aresaid to be timeless.60 However, the point of ‘other things being equal’demonstrates that the degree of harm caused is dependent on all threeaspects brought together. For example, a prick on the finger just because it is

55M. Danner, Torture and Truth: America, Abu Ghraib and the War on Terror (London:Granta Books 2005) p.6.56D. Sussman, ‘What’s Wrong with Torture?’, Philosophy and Public Affairs 33/3 (2005)pp.1–33 at p.22.57For accounts of the power of pain see E. Scarry, The Body in Pain, pp.45–51 and R.Melzack and P. Wall, The Challenge of Pain (Harmondsworth: Penguin 1984), on thesusceptibility of humans to physical pain and the role it plays in debilitating people.58W. Twining and B. Paskins, ‘Torture and Philosophy’, The Proceedings of the AristotelianSociety 52 (1978) pp.143–94 at p.166.59Berlin declared that in much the same way that boots were more important than the wordsof Shakespeare, liberty and autonomy are not necessarily the total first need of an individual.Berlin, ‘Two Concepts of Liberty’, p.124.60Feinberg, Harm to Others, pp.45–6.


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a physical violation is not a greater harm than being locked away for 20years.

Therefore, the difference between tapping someone’s wires and monitor-ing someone in a public space is the difference between the severities of theviolation of privacy; the former is considered a more severe violationbecause it violates a more stringently maintained and socially establishedsphere of privacy as well as the understanding that individuals implicitlyconsent to a partial and temporary reduction of their privacies by freelyelecting to enter public spaces. The difference between manipulating anddeceiving someone or blackmailing them is that the latter involves a moresevere violation of the individual’s autonomy. Finally, torture represents themost harmful of the activities, given that it violates all of an individual’s vitalinterests and represents the most severe examples of how one might violateeach of these interests.

Just War and Just Intelligence

While it has been argued thus far that intelligence collection can indeedcause harm to those it targets as a result of violating an individual’s vitalinterests, and that this harm should be prevented, this does not mean thatcollection activities are always prohibited. Intelligence plays a vital role inprotecting the political community. Given the correct circumstances anddepending on the degree of harm caused, intelligence collection activities canbe justified.

To this end, by using the just war tradition as a base it is possible toestablish a set of just intelligence principles that can limit the harmintelligence collection causes while outlining what circumstances would berequired to justify the harm caused.

Just War Meets Just Intelligence

It is impossible to think of a single ‘just war doctrine’, with a single point oflinear development from a single idea. Instead, ‘just war’ is betterunderstood as a set of ‘recurrent issues and themes in the discussion ofwarfare . . . reflecting a general philosophical orientation towards thesubject’.61 The just war tradition is an organic, evolutionary set of conceptsthat have been developed over time in response to the moral issues of theday. Over the centuries the just war tradition has been developed andadapted by theologians, philosophers, military professionals and jurists inorder to grapple with the notion that there are some acts, such as killing, thatare considered to be gravely wrong, while understanding that in certaincircumstances these same acts might be permissible.

What evolved was a set of principles designed to govern and limit theactivity of war and the harm it can cause. These principles at the same timemaintained the broader context of the duty of the public authorities to retain

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


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the capacity to use violence for the protection of one’s state or that ofinternational peace and stability.62 It is because the just war traditionattempts to reconcile this tension that it can be argued that it is the mostappropriate starting-point in designing an ethical intelligence framework –that is, one able to understand if and when the harm caused by intelligencecollection is justified in relation to the good of the political community.These just intelligence principles demand both a limitation on the harm doneby intelligence collection, while also outlining exactly when harm is justified.

These just intelligence principles are as follows:

. Just cause: there must be a sufficient threat to justify the harm that mightbe caused by the intelligence collection activity.

. Authority: there must be legitimate authority, representing the politicalcommunity’s interests, sanctioning the activity.

. Intention: the means should be used for the intended purpose and not forother (political, economic, social) objectives.

. Proportion: the harm that is perceived to be caused should be outweighedby the perceived gains.

. Last resort: less harmful acts should be attempted before more harmfulones are chosen.

. Discrimination: There should be discrimination between legitimate andillegitimate targets

Just Cause

The principle of ‘just cause’ is often considered by many theorists to be acore just war principle as it interrogates the justification for going to war.63

Thomas Aquinas argued that for a war to be just there must be some reasonor injury to give cause, namely that ‘those who are attacked must beattacked because they deserve it on account of some fault’.64 Currently,international law frames ‘self-defence’ as the main justification for going towar.65

The just cause equivalent for intelligence collection is, therefore, that theremust be a sufficient threat to justify the harm that might be caused. It is therole of intelligence agencies to safeguard and maintain a state’s ‘nationalsecurity and, in particular, its protection against threats’.66 It is the detectionand prevention of these threats that enables intelligence agencies to protect

62B. Orend, Morality of War (Peterborough: Broadview Press 2006) p.9; J.T. Turner, JustWar Tradition and the Restraint of War: A Moral and Historical Inquiry (Princeton, NJ:Princeton University Press 1981) p.xxi.63Orend, Morality of War, p.9.64T. Aquinas, ‘From Summa Theologiae’ in Chris Brown, Terry Nardin and NicholasRengger (eds.) International Relations in Political Thought (Cambridge: CambridgeUniversity Press 2002) p.214.65For example, the United Nations Charter states that nothing ‘shall impair the inherent rightof individual or collective self-defence if an armed attack occurs’. UN Charter Article 51.66United Kingdom, Security Service Act 1989 x1(2).


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the state and its people. As such, the just cause for the use of intelligencecollection is one of self-defence against threats. Depending on the type anddegree of the threat, the type and degree of harm allowed is then altered.That is, the more harmful the act is the greater the threat required to justifyit. Also, the burden of proof required to indicate whether the threat is realcan vary according to the harm caused. Specifically, the greater the harmthat might be caused the greater the evidence required to prove the threatreal. Activities that cause only a low level of harm would only require a‘reasonable suspicion’ of a threat to act as a just cause, whereas thoseactivities that cause greater degrees of harm would require more concreteevidence to demonstrate to an objective observer that a clear threat exists. Inthis way, the initial data collection can be achieved under a reasonablesuspicion using the least harmful collection activities so as to understand thethreat better, and if necessary the information gained can provide evidencefor the just cause that legitimizes further intelligence collection. For example,the high level of tension between the West and the Soviet bloc during theCold War represented a legitimate just cause for using several forms ofintelligence collection. Between the United Kingdom and the United States,on the other hand, it could not be argued that there was any immediatethreat as to justify anything but the least harmful means of intelligencecollection. Outlining different levels of evidence in this way also prevents aparadox occurring where in order to have a just cause there is a need tocollect information first to act as a just cause. But, by using those intelligencecollection activities that cause a low level of harm there is only a need for alow level of threat to act as a just cause. The information collected from thisinitial, low harm investigation can then act as the just cause for higher levelsof harm.

Just Intelligence and Authority

For a war to be considered morally permissible according to the just wartradition it must be authorized by the right authority, that is, those who havethe right to command by virtue of their position. As Aquinas stated, ‘theruler for whom the war is to be fought must have the authority to do so’ and‘a private person does not have the right to make war’.67 Those entrustedwith the common good are charged with the duty to protect the politicalcommunity: ‘since the care of the common weal is committed to those whoare in the right authority, it is their business to watch over the commonweal’.68 Therefore, it is only that body which is charged with protecting thecommon good and holds their interests in mind that can take them to warjustly.

Similarly, one can argue that in order for intelligence collection to be just,there must be a legitimate authority present to sanction the harms that canbe caused. Since some forms of intelligence collection will involve a degree ofharm, society needs to vest the authority to act in certain institutions or

67Aquinas, ‘From Summa Theologiae’, p.214.68Ibid.


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those that represent the political community and their wishes. Furthermore,one might argue that intelligence collection needs to be authorized by a bodythat is able to ensure that the just intelligence principles are being met fullyand without bias. Those planning, performing or even managing operationsmight have invested interests in getting their job done. For example, there isa huge external pressure on intelligence services to provide the ‘correct’information in a timely fashion to their clients. As such, as Sir David Omandhas remarked, there is need for ‘proper oversight from outside theintelligence community and a robust mechanism where any individual issueraised can be done so without fear, yet done in ways that will protect theessential secrecy of the business’.69 The most notable example of this notionof right authority as used in intelligence collection is for a wiretap-warrantapplication. In the Anglo-American intelligence system there is an oversightmechanism which utilizes either the judiciary branch (American system) orthe political branch (UK system) to act as just authorities and to ensure thatcertain principles have been satisfied.70 This represents a valuable model forthe notion of legitimate authority, as evidence is presented through a specificmechanism that is versed in weighing proof of evidence while holding theinterests of the wider political community and ensuring certain criteria aremet. By extrapolating this system to other means of intelligence collectionactivities it could be possible to offer a means of authorizing intelligenceswiftly while ensuring it is authorized by an appropriate oversight body.

Just Intelligence and Right Intentions

Just war theorists think it insufficient merely to have an objective just causefor war; there must also be a proper subjective right intention. The intentionbehind an act alters the moral quality of the act. Indeed, intention hasbecome an important part of our common moral discourse, altering how wetalk about, speculate on, and judge actions.71 Leaders must be able to justifytheir decisions, noting that they had the right intentions; ‘for those that slipthe dogs of war, it is not sufficient that things turn out for the best’.72 Thereasoning behind this is that it is very possible for ‘war to be declared bylegitimate authority and just cause, yet nonetheless be made unlawful

69D. Omand, ‘The Dilemmas of Using Secret Intelligence for Public Security’ in PeterHennessy (ed.) The New Protective State: Government, Intelligence and Terrorism (London:Continuum 2007) p.165.70Wiretaps in United Kingdom require a warrant that must be authorized by the Secretary ofState, see Regulation of Investigatory Powers Act 2000 Chapter 23, Part 1, Chapter 1, x6(1).In the American system wiretaps must be authorized by a three judge panel whose solepurpose is to review applications for electronic surveillance warrants. See The ForeignIntelligence Surveillance Act 1978 ‘Electronic Surveillance Within the United States forForeign Intelligence Purposes’, x101–105.71See J. Thomson, ‘The Trolley Problem’, in William Pereni (ed.) Rights, Restitution and Risk(Cambridge: Harvard University Press 1986) pp.101–2; T.M. Scanlon and J. Daney,‘Intention and Permissibility’, Supplement to the Proceedings of the Aristotelian Society 74/1(2000) pp.301–17.72D.P. Lackey, The Ethics of War and Peace (London: Prentice Hall International 1989) p.32.


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through a wicked intention’.73 This means that the reasons given are notsimply there to serve as a cover for the pursuit of other aims, even if there is ajust cause. The intention of the war must reflect the just cause which is usedto justify the war. If it is a war of self-defence, for example, then theintention of the war must be to deal with this and not fight a war ofaggrandizement. The intention behind the war is then demonstrated throughthe conduct of the war itself, in that wars with the intention of self-defenceshould not involve tactics of domination or subjugation.

By drawing on this logic it can be argued that in order for intelligencecollection to be morally permissible the intelligence collection means shouldbe used for the stated purpose and not for other political, economic, or socialobjectives. This right intention should flow from the just cause used to justifythe intelligence collection. This means that the just cause is not thereforeused as a pretext for a host of unrelated actions. What is more, the actionsused should reflect the right intention.

For example, since the just cause for the just intelligence principle is toassess and determine the reality of a threat, the intention, and therefore themeans employed, should directly correlate to this threat. The intentionshould be to investigate this threat. The means who is targeted, and howmuch harm is allowed, should all flow from the intended purpose of dealingwith the threat. This just intelligence criterion is designed to prevent the useof intelligence collection for personal, political or economic gain, eventhough there might be an existing sufficient threat.

This principle can have important implications for information collection.In instances where a warrant is applied for – for wiretaps or propertysearches for example – the terms of the warrant should reflect the just cause,and in turn the type of search carried out should reflect the intent behind thewarrant.74 This means that the investigating officer may only search ‘placeswhich might reasonably be suspected of containing the specified offendingarticles’.75 If the officer was to search places outside what is reflected in thejust cause, then he is acting with an ulterior motive to the just cause and istherefore not working with the right intention.76 However, anything whichis thrown-up incidentally to the lawful search may be seized as complies withthe warrant, since even though the items found were not on the warrant, thetype of search carried out that found the offending articles is still in-line with

73Aquinas, ‘From Summa Theologiae’, p.214.74‘A search under a warrant may only be a search to the extent required for the purpose forwhich the warrant was issued’ Police and Criminal Evidence Act 1984 x 16(8).75R. Stone, The Law of Entry, Search and Seizure (Oxford: Oxford University Press 2005)p.171.76Obviously, there might be some difficulty proving that the officer was using the power ofthe warrant for an ulterior motive sometimes, but given that the intent is reflected in theactions carried out, the way in which the search is conducted leave little room for doubt thatthe intent was improper. For example, if a warrant is obtained to search premises for evidenceof tax fraud, it would be unreasonable to believe that they would find evidence of the fraud inplaces where they might find drugs. See D. Feldman, The Law Relating to Entry, Search andSeizure (London: Butterworths 1986) p.171.


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the original intention. Just because the outcome does not match with theoriginal intention does not alter the fact that the officer was working withthe correct intention in the first place. Another implication of this principle isreflected in the current debate on personal information databases and howcrossover information collection should be restricted. If information iscollected – DNA, fingerprints, personal data for example – under a just causewith the appropriate degree of evidence, but was incidentally connected toanother crime, then the information can be used since the original just causeand correct intention was present. This would be analogous to finding illegalgoods incidentally while performing a legal search. However, what is notpermissible is to use a just cause such as tax fraud to justify the collectionand retention of DNA, as this type of information is unrelated and is notreflecting the original just cause, clearly outside what should be the correctintention.77

Just Intelligence and Last Resort

In the just war tradition the principle of last resort is an attempt to allowthose relatively benign means of responding to a crisis, such as diplomacy oreconomic pressure, a chance to resolve the issue before resort to organizedviolence is permitted. This way, if it is possible, more harmful acts areavoided. Richard Miller argues that, ‘even if [force] is sometimes necessaryand morally justifiable, but the just cause could be achieved by non-violencemeans then the party has a moral duty to prefer these methods’.78 However,Robert Phillips warns that, ‘it is a mistake to suppose that ‘‘last’’ necessarilydesignates the final move in a chronological series of actions’.79 If it did, thenforce would never be legitimized since one could always continue tonegotiate. Instead, what it demands is that actors ‘carefully evaluate all thedifferent strategies that might bring about the desired end, selecting force asit appears to be the only feasible strategy for securing those ends’.80 If timeand circumstances permitted other means short of force then they should beused; there is not a rigid sequence which one must follow at all times, but anunderstanding that the most harmful acts should not be used if less harmfulactivities can achieve the same result.

77Moreover, if the individual from which the information was collected was proved to beinnocent in regards to the investigation then the original just cause was proved false and anylater investigations which might use it would require new a new just cause and evidence. Anylater investigations could not retain the information incidentally and use it as they could notprove that they retrospective intent. The length of time to which information collection underthis type of example set by the European Court council is set out in Parliamentary Assemblyof the Council of Europe, Data Retention Directive of the European Parliament and of theCouncil (2006/24/EC 15 March 2006).78R.B. Miller, Interpretations of Conflict, Ethics, Pacifism and the Just War Tradition(Chicago, IL; London: University of Chicago Press 1991) p.14.79R. Phillips, War and Justice (Norman, OK: University of Oklahoma Press 1984) p.14.80A.J. Bellamy, Just Wars: From Cicero to Iraq (Cambridge and Malden, MA: Polity Press2006) p.123.


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Based on this conception of last resort, one can argue for a similarrationale for the just intelligence principles. In order for an intelligencecollection means to be just, it must only be used once other less or noneharmful means have been exhausted or are redundant. Any attempt to dealwith the threat should use the least harmful first and thus give theopportunity for more harmful activities to be avoided. While there is no rigidmethodology or steps that must be worked through, it does require thatsome of the more harmful actions are not resorted to out of ease, expediencyor preference.

Just Intelligence and Proportionality

The idea of proportionality is one of the oldest principles not only of the justwar tradition, but also of moral theory and military strategy in general.81

Leaders and individuals are constantly tasked with weighing up the costs ofan action against what can be gained. The principle of proportionality issimilar in that it establishes the notion that the violence of war should beproportionate to the threat that it is meant to overcome, placing a limit onthe amount of damage permissible for a given action. Kateri Carmola arguesthat the need for a principle of proportionality is rooted in the humantendency towards disproportionate, unmeasured, passionate and cruelresponses.82 Clausewitz warns that war by its very nature tends towardsthe extreme and the utmost use of force: ‘an act of violence which in itsapplication knows no bounds and in which a proportionate response toanother’s power is met by an escalating response and so on’.83 Whilst warmay be the legitimate answer to right a wrong in certain circumstances, notall wrongs that a state can experience are of sufficient magnitude to justifythe harm that might be caused: ‘some wrongs are neither grievous norwidespread enough to legitimate the inevitable evils that war entails’.84

One can argue that, for the intelligence collection to be just, the level ofharm that one perceives to be caused, or prevented, by the collection shouldbe outweighed by the perceived gains. In collecting intelligence there isalways a perceived end – what is expected to be gained and the harm thatcould be caused. The principle of proportionality is designed to evaluatethese two factors and determine if, on balance, an overall greater level ofresultant harm would outweigh what is gained from the intelligencecollection. Furthermore, the principle of proportionality will only take the‘good’ which contributes to the just cause as a positive, while it will include

81See A.J. Coates, The Ethics of War (Manchester: Manchester University Press 1997); J.T.Johnson, Morality and Contemporary Warfare (London: Yale University Press 2001); R.Norman, Ethics, Killing and War (Cambridge: Cambridge University Press 1995).82K. Carmola, ‘The Concept of Proportionality: Old Questions and New Ambiguities’ in M.Evans (ed.) Just War Theory: A Reappraisal (Edinburgh: Edinburgh University Press 2005)p.97.83Carl von Clausewitz, On War, ed. and trans. Michael Howard and Peter Paret (Princeton,NJ: Princeton University Press 1989) p.76.84Bellamy, Just Wars, p.123.


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all ‘bad’ results as a negative. For example, it does not take into account aboosted economy as a ‘good’ for a war of self-defence while the damage itmight do to the economy can be taken into account as a negative. Forintelligence collection, this means that only information which willcontribute to the just cause can be accounted as a positive; other harms,such as harm to the target, harm to the agent, as well as the harm to societyin general, can be taken as a negative.

Just Intelligence and Discrimination

The requirement that an attack must discriminate between combatants andnon-combatants is one of the most stridently codified just war rules and isreflected in the international laws of war.85 This moral distinction – mostoften seen in the differentiation between armed soldiers who constitutelegitimate targets and unarmed civilians as illegitimate targets – is based,first, on the moral right of self-defence. According to this right the armedsoldier poses a threat and can be attacked out of pre-emptive self-defence;and second, as Walzer argues, that the soldier has acted in a way as tobecome a ‘dangerous man’ and has thereby waived or temporarily suspendedhis normal protective rights.86 By taking up arms the soldier has clearlydemarcated himself as separate from the ordinary civilian and is bothbestowed with ‘combatant’s privilege’, an exemption from being tried formurder of the other soldiers, as well as sacrificing some of his other rights inthe process, that is, the right not to be attacked.

One can argue that for just intelligence collection there must bediscrimination between targets. Just as soldiers waive their protective rightsby acting in a threatening way, so too can any individual act in such a way asto make himself threatening and forfeit his protective rights. For example,Tony Pfaff and Jeffery Tiel argue that, ‘consent to participate in the world ofnational security on all levels of a country’s self-defence structure togetherwith the quality of the information possessed’ justifies them as targets.87 Thisprinciple of discrimination argues that there are certain acts people canperform that mark them as legitimate targets, and that without these actsthey are otherwise illegitimate targets. In this way, civilians and not justsoldiers can become legitimate targets by particular actions that mark them

85Geneva 1949; 1977 Geneva Protocol II Additional to the Geneva Convention of 1949: TheProtection to of Victims of Armed Conflicts Section, Chapter 11 ‘Protection of CivilianPopulation’: Article 51, Section 2. Traditionally, the distinction between legitimate andillegitimate targets was seen to arise out of the moral prohibition of taking ‘innocent life’.Rather than referring the moral status of the individual and discriminating on the basis ofmoral guilt, ‘innocence’ in this sense is based on the negative etymological derivation of theword from the Latin nocere (to harm) to mean ‘harmless’, rather than ‘blameless’. See Coates,The Ethics of War, p.233–5; also Norman, Ethics, p.168; J. McMahan, ‘Innocence, Self-Defence and Killing in War’, The Journal of Political Philosophy 2/1 (2006) pp.193–221 atp.193.86M. Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (NewYork: Basic Books 2000) p.145.87Pfaff and Tiel, ‘The Ethics of Espionage’, p.6.


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as a threat. Walzer notes that while it may be hard to understand thisextension of combatant status beyond the category of soldiers, throughmodern warfare this has become common enough. Civilians can become‘partially assimilated’ when they are ‘engaged in activities threatening andharmful to their enemies’.88

The principle of discrimination for the just intelligence principles thereforedistinguishes between those individuals without involvement in a threat (andthereby protected), and those who have made themselves a part of the threat(and by so doing have become legitimate targets). According to the degree towhich an individual has assimilated himself, either through making himself athreat or acting in a manner that forfeits his rights, the level of harm whichcan be used against him will alter. For example, terrorists and intelligenceofficers are both legitimate targets because they have ‘fully entered the game’through their actions. In comparison, a piano tuner, who has done nothingthat might be seen as threatening or acted in any way to waive his protectiverights, is an illegitimate target. Furthermore, a scientist who works onweapons has taken a job which places him within the security infrastructureof a state and has taken on vital information and thus forfeited certainprotective rights and consequently becomes a legitimate target for some ofthe intelligence collection harms. He has only partially entered the game andtherefore is only a partially assimilated target.

Conclusion

This article has posed the problem of how intelligence collection can beconducted ethically. In brief, secret intelligence collection is a vital and evenindispensible tool in the eternal vigilance required to protect the state from avariety of internal and external threats. However, its effective use initiatesacts that can cause severe harm to those it targets and, as such, withoutfurther justification would not be allowed. As Quinlan argues, ‘in the face ofthat tension, we cannot say that morality must simply be set aside; we haveto identify some conceptual structure for legitimising and disciplining theactivity’.89 In response to that challenge, this article has proposed an ethicalconstruct constituted of two important parts: the first delineates the harmthat intelligence collection can cause, making it clear what it is that assignsan immoral quality to intelligence collection; the second outlines aframework that both limits the use of intelligence collection and acknowl-edges those situations when the harm caused is justifiable.

First, it is essential to recognize that intelligence collection involves amyriad of activities, making an all-encompassing declaration on the moralstatus of all activities not only impossible but unhelpful. Instead, there is aneed for an ethical framework that is nuanced, one able to calibrate andevaluate these different activities and compare them with each other. Theharm framework proposed here provides the means for understanding how

88Walzer, Just and Unjust Wars, pp.145–6.89Quinlan, ‘Just Intelligence’, p.12.


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very different activities can be understood in comparison with each other –and in doing so offers a means to establish a core understanding about howintelligence collection affects people and why it is considered unacceptable inrelation to ethical standards.

It is then possible to incorporate these different activities within the justintelligence framework, a framework that can evaluate the harm caused andresolve this with the duties of the political community. The just intelligenceprinciples each provide a limit on the use of intelligence collection. At thesame time they outline a set of ethical measures which ensure that harm isonly justified when there is a threat of sufficient proportion, recognized bythose whose responsibility it is to protect the people, used against those whoare justified targets and conducted with the intention of protection and self-defence. Under these normative guidelines, then the harm caused becomesjustifiable.

While it is possible to argue that some intelligence systems adhere to theethical principles discussed, the application is both inconsistent and implicit.For example, while the principle of legitimate authority is arguably used forwiretaps and property searches, there is no such systemic oversight andauthorization for other forms of intelligence collection. Furthermore, whileintelligence agencies might only target threatening people as they are theonly ones worth targeting, there is no explicit limit on who or what can betargeted. Therefore, only by explicitly applying the ethical principles asoutlined here before the fact can intelligence guarantee that its application ofmethods be ethically justified. Only by using both of these different ethicalframeworks is it possible to understand the dual quality of intelligencecollection: that intelligence collection does indeed cause harm, but thatsometimes this harm is necessary in order to protect those for whom a statecarries responsibility.


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What's the Harm