Ethics in Intelligence

ETHICAL AND MORAL ISSUES IN INTELLIGENCE
"Do not be too moral. You may cheat yourself out of much life" (Henry David Thoreau)

Intelligence ethics is an emerging field which aims to create a theory of "just intelligence" not necessarily by drawing upon the classical philosophical literature, but by establishing principles for resolving the many ethical problems which confront the intelligence community. Currently, intelligence work has no theory analogous to "just war" theory in military ethics. Consequently, what is emerging in this field may seem odd, strange or even immoral to some people, but it should be remembered that what is being dealt with is some of the world's worst "dirty work." Perhaps at the most philosophical level it is appropriate to ask as Olson (2006) does: "Who decides what's necessary for the public good, and is it really true that any kind of service is permissible for the public good?" Scholars will quickly answer this all depends on policy formulation and implementation, but it's hard to deny that discretion exists at many pay grades in this field. It's also hard to deny that some of the basic functions of espionage, core components of intelligence, are perhaps the "dirtiest" and most discretion-laden components. Also, as everyone knows, reputations are made by the company one keeps, and certain breaches in the basic trust structure of relationships are to be expected. The task of getting somebody to become a traitor to their cause is a questionable if not "dirty" business, after all, and one might question what the virtue of "loyalty" means in a world so heavily dependent on spies, double agents, traitors, tricks, traps, deception, invasion of privacy, and denial of the right to self-determination.

Suffice it so say that much of the field involves devious and underhanded behaviors. Why then, the importance of ethics? What kind of ethics? Should we begin with a before the fact, or a priori, approach which emphasizes the honorable motives that got us into this business in the first place? Should we begin with an after the fact, a posteriori, approach which takes a hard look in hindsight at the lessons learned, good and bad? Or should we take the easy way out, and say that ethical and moral concerns run rampant throughout every aspect of intelligence, and hope that some sort of professional code of ethics (along with stringent policies and procedures) will help us through? In this lecture, we'll examine each of these approaches in turn, but first, let's list as many areas of intelligence work where ethical issues predominate.

RECRUITMENT: The virtues looked for in the recruitment of an intelligence agent are generally good virtues (discretion, loyalty, tenacity), but it is also undeniable that anyone recruited would have to learn how to lie, deceive, steal, plunder, and perform a number of other "dirty acts," and this requires a certain degree of personal ruthlessness. In fact, agents are recruited in a variety of ways (money, blackmail, excitement), and sometimes deception itself is used in recruitment (the false flag technique). From an ethical standpoint, it would seem that the more coercive and more deceptive methods of recruitment might be morally questionable. Patriotism, on the other hand, if the only thing relied on, can lead to "noble cause" ruthlessness, especially in the form of intense political loyalty, which is almost always a risky business since politics leads to revenge, which leads to leaks, which leads to being "outed" as an operative or agent, and little use has ever been made of Section 421 of the Intelligence Identities Act of 1982 which makes it a felony to "out" any covert operative or agent under Non-Official Cover (NOC). Payment of NOCs by both the intelligence agency using them and the salary from their fake job is also an ethical issue.

COLLECTION: Human intelligence requires manipulation and exploitation. Methods ranging from psychological trickery to sexual blackmail are used. The obvious ethical solution would be to use "voluntary" agents, or "walk-ins," but there are times when you just need to try getting a better inside source, and NOT to try might be moral weakness. Another problem with HUMINT is how obligated are we to the safety and welfare of our spies? We do everything possible to make sure they stay safe, but setting them up in lavish homes under some witness protection program (once compromised) might be too much, especially if they haven't been as productive a spy as we would like. You can't control agents absolutely. The CIA tried all that with various mind control experiments, and it was an embarrassing failure. When a spy doesn't do the things we like or (more commonly) does things we don't like, what then becomes of the nature of our OBLIGATION to them?

COVERT ACTION: The basic ethical issues involve the legitimacy and sovereignty of other nations, and we are accustomed to stepping all over this in the name of national security. For ethical reasons, it would be better if we "fine-tuned" this approach, lest every nation become both friend and foe. Covert action in the modern world may very well require a stable set of allies, each with at least some consensus on what the "shared" national security interests are. A shared responsibility approach to covert action would also help deal with the problems of blowback and keeping the press independent. We also need to clarify exactly who it is that makes a legitimate target for paramilitary and military operations. The nature of the REGIME matters. It's easy to justify intervention against an oppressive, undemocratic regime, but quite another thing when the need arises against a regime with a more acceptable form of government.

ASSASSINATION: This one's the biggie, and the main ethical question is whether to lift the ban selectively or wholesale. In the case of various terrorist leaders, the question becomes irrelevant, but assassination has always been a "sloppy" business, with no guarantee of what happens afterwards or who comes to power later. This problem becomes especially important when we stop and consider that most of the leaders we would like to kill live in countries where there is an ill-defined mechanism for political succession. Assassination also raises the risk of reprisal.

ANALYSIS: One of the primary ethical issues with analysis is whether policy makers need to be told the "truth," a "half-truth," some "shaded truth," or whatever it is that justifies their predetermined policy. Suppose as an analyst, you told the truth, and the policy makers rejected it. What would you do? Quit, or keep trying to get them to listen until you're forced to quit? Politicians have ways of speaking "power to truth" just as you have ways of speaking "truth to power." Who's responsible or obligated once the policy makers have rejected truth, and what if the stakes were high, like involving the safety of the American people? I can tell you now that with few exceptions (mostly involving the military and FBI), no intelligence analyst has ever become a whistleblower (The U.S. never even saw the need for whistleblower protection until 1998 with passage of the Intelligence Community Whistleblower Protection Act). Caught up in this kind of dilemma, the analyst does one of two things: they take the truth to other policymakers (going over the heads of people in their chain of command); or they "compromise" with the analytic product and get as many other analysts as possible to sign off on it. Such bureaucratic games are played incessantly, and it's always going to be that way while people in the "trenches" know more than the people in power.

OVERSIGHT: Playing "hardball" with politicians at an oversight hearing isn't a good idea since it will most likely lead to a perjury conviction. It is a common practice at oversight and investigative hearings to try and get the intelligence officer to fully reveal everything they know, and all their sources. You, the officer, will then be torn between your obligation to keep certain things secret and your obligation to answer truthfully and fully. You can offer to tell the senators what they need to know in private, but often this offer isn't accepted.

MEDIA: The press has a right to remain free and report on newsworthy information, but fads and fashions seem to come and go in the area called "investigative journalism." Leaks to the press or created by the press have been a consistent source of intelligence embarrassments. How to handle the press is an ethical issue, before and after the story, and the press may very well need to explore its own ethics, just as we now turn to that sort of exploration for intelligence studies.

At the heart of any a priori argument is the notion that bad things are sometimes the right thing to do, NOT because the end is good, but because the motive or intent is good. Looking at the inherent or ulterior motive behind the act is called DEONTOLOGICAL ethics, and from a deontological point of view, something is moral not because of its consequences, but is moral because the motive or intent is "good." The clearest example of a deontological ethical system is FORMALISM, developed by that famous philosopher-of-philosophers, Immanuel Kant. Kant's approach to ethics begins with an analysis of "ulterior motives." Something could look good, and really be bad; and vice-versa, something could look bad, and really be good. Kant then proceeds to analyze the acts of so-called "Good Samaritans" to see why they do good things for complete strangers. What matters is whether or not the Good Samaritan is truly, or formally, doing the good thing out of the kindness of their heart -- or whether they expect payment, glory, or the return of a favor. Only if something springs from a desire to do good with no expectation of reward or benefit, can we truly say the "goodness" of an ethic has been achieved. The question then becomes: "Under what circumstances will people sincerely do good with no expectation of benefit?" Kant says the answer is when people are "doing their duty" and the concept of DUTY becomes an important part of ethical formalism, which consists philosophically of three components:

    1. Act only on that maxim through which you can at the same time will that it should become a universal law.
    2. Act in such a way that you always treat humanity, including yourself and others, as an end in itself, and never as a means to an end.
    3. Act as if you were a lawmaking member of a kingdom of ends.

Note the absolute character of these principles. There is no room for flexibility, no wiggle room. Together, they form what is known as the categorical imperative, but there are many smaller categorical imperatives in life. A categorical imperative is something that "commands" action without reference to any purpose or consequence. If you say to yourself that "I must attend college because a degree will help me in life," then you are still thinking in terms of consequences, and that statement is NOT a categorical imperative. If you say to yourself that "I must do something because it is the right thing to do in itself," then you are experiencing a categorical imperative, and doing a "good" thing which exemplifies duty for duty's sake. Nobody can control consequences, and in the end, doing your duty is all that counts. Doing your duty and sticking to your predetermined principles have the effect of setting an example for others to become more altruistic and duty-conscious. Each person must follow a self-imposed moral law, but naturally there are going to be people with "ulterior" motives which are egotistic and less than noble. The philosophy of retribution draws upon deontological ethics at this point and postulates something called the principle of forfeiture. This principle holds that people who lie, deceive, or otherwise treat other people as a means to an end don't deserve to have the truth told to them. This "back-door" exception to ethical formalism allows what we commonly call "white lies" or lies for someone's own good. To not tell the truth to a person who doesn't deserve the truth is not a lie.

At the heart of any a posteriori argument is the notion that bad things sometimes need to happen because the consequences (or end) is good. The consequences must be good for a majority of people, not just for yourself (greatest good for the greatest number), and this idea is usually associated with utilitarianism, a type of TELEOLOGICAL ethics. From a teleological point of view, it's the end result, long-term utility, or time (telos) that matters. Society and the survival of all are more important than the needs and interests of any one individual or small group. There's a philosophical invention called the SOCIAL CONTRACT which promises, among other things, that the rights of minorities will not be trampled upon, but by-and-large, the teleological approach relies upon hopes for a "multiplicative" effect in maximizing the benefit for majorities and minimizing the harm for minorities. An example of a multiplicative effect would be deterrence. Timing is everything in teleological ethics, and sometimes it might seem appropriate to focus on the short-term consequences (act-utilitarianism), and sometimes it might seem appropriate to focus on the long-term consequences (rule-utilitarianism). Most experts believe that it is better to focus on the long-term consequences. The study of long-term consequences is the study of PRECEDENT, or of the lessons learned by hindsight. Occasionally, failures and unintended consequences will happen, and there will be cover-ups, damage control, denial and deception. The right and honorable thing to do is to be brutally honest when investigating failures, to go beyond any spin, rationalization, or ideology that becomes associated with the consequences afterwards. An honest look at long-term consequences will resemble functionalist analysis in sociology. Some negative consequences may outweigh the positive consequences; for example, when the action sets a precedent that "chills" further honest exploration and analysis. Likewise, one might not be able to take credit for consequences, either positive or negative one; for example, when "fatalism" deems that something was going to happen anyway. True deliberation over the long-term costs and benefits of any action can be a complex undertaking, but the whole purpose is to discover laws and principles which can serve as a "practical" guide to future action. Tragic choices are inevitable in intelligence work, and possibly the best that can be done is to minimize avoidable tragedy.

At the heart of any professional code of ethics approach are the notions of oath and promise. Basically, by committing or swearing allegiance to a code of ethics, one is giving their word to a higher power or collectivity (God, society, the profession, fellow officers) that they will hold themselves accountable to virtues or standards that are normally above ordinary morality. It is undeniable that the "oath" aspect of this has supernatural origins, and the secular hope today is that the trappings of ceremony and ritual in which the oath is administered and learned (usually at the completion of training) will substitute or constantly remind someone of their "higher calling." And a higher calling it is, because the standards or virtues set by a code of ethics are intended to be unreachable or aspirational. One "aspires" to emulate virtues like "sensitivity, honesty, judgment, initiative, modesty, and reliability" because we are NOT "supermen" who can leap over tall buildings at a single bound, and what good are virtues to strive for unless they have no upper limits.

Goodness does not require perfection, and all that really matters in any "code," "canon," "statement," "principle," "standard," "oath," "pledge," "vow," "maxim," "credo," "prayer," "tenet," or "declaration" is the promise -- giving and keeping your promise. For most people, the keeping of one's promise is the hard part, as this requires three things: (1) an unusually high degree of self-monitoring (individualization is the only remedy for the slippery slope problem); (2) a high degree of other-monitoring (watching out for "bad apples" that might corrupt the collectivity); and (3) what philosophers have always called the elusive Good Samaritan phenomenon (not even "thinking" about taking any kind of reward, even praise, for good deeds). These are tall orders, and when an organization tries to "enforce" its code of ethics by being more down-to-earth and "regulatory" (in policies and procedure manuals), the usual result is an emphasis upon (2) at the expense of (1) and (3). Never mind that it's difficult to operationalize exactly what good "judgment" means in every situation, the usual result is a better "snitch" system whenever administrators begin to take Codes of Ethics as the foundation for policies and procedures. Polygraphs and lie detection tests signal to employees that you don't trust them, and are the source of common jokes around the workplace in any intelligence agency.

If intelligence work is anything like law enforcement work (a similar profession with near-impossible standards), most agencies will have polices and procedures that only cover the most extreme situations (a discouragement policy), followed closely by a "judge each case on its own merits" (judgmental) policy. In general, there are three types of policy procedures:

    1. Restrictive policies -- these tend to be big rule books that specify as many situations as possible and contain severe restrictions on officer judgment.
    2. Discouragement policies -- these tend to only list the most extreme and critical situations an officer will face.
    3. Judgmental policies -- these tend to only give general guidance that is generic to all circumstances. Ironically, it's the kind of policy that's easiest to get terminated under from the officer's point of view.

The more centralized the community of agencies, the more likely one can expect to find restrictive policies. However, anyone who has ever observed organizations for any length of time knows that specialized work groups develop within organizations which tend to create their own sets of "expectations," norms, and a work ethos which can best be characterized as quasi-professional (fraternal) policies and procedures. Research in administrative science also strongly indicates that the mere existence of policies and procedures does not automatically lead to compliance with those policies and procedures. Below is a copy of the law enforcement code of ethics to illustrate some of the more difficult-to-achieve aspects of it.

As a law enforcement officer, my fundamental duty is to serve mankind; to safeguard lives and property; to protect the innocent against deception; the weak against oppression or intimidation; and the peaceful against violence or disorder; and to respect the Constitutional rights of all men to liberty, equality, and justice.

I will keep my private life unsullied as an example to all; maintain courageous calm in the face of danger, scorn, or ridicule; develop self-restraint; and be constantly mindful of the welfare of others. Honest in my thought and deed in both personal and official life, I will be exemplary in obeying the laws of the land and the regulations of my department. Whatever I see or hear of a confidential nature or that is confided to me in my official capacity will be kept ever secret unless revelation is necessary in the performance of my duties.

I will never act officiously or permit personal feelings, prejudices, animosities, or friendships to influence my decisions. With no compromise for crime and with relentless prosecution of criminals, I will enforce the law courteously and appropriately without fear or favor, malice or ill-will, never employing unnecessary force or violence, and never accepting gratuities.

I recognize the badge of my office as a symbol of public faith, and I accept it as a public trust to be held so long as I am true to the ethics of police service. I will constantly strive to achieve these objectives and ideals, dedicating myself before God to my chosen profession -- law enforcement.

For the sake of argument, if we focus on self-monitoring and the Good Samaritan phenomenon (as we probably should), how could we devise a system of employment where workers turned themselves in at the slightest hint of compromise? And, how could we eliminate the human ego's tendency to take credit for something - deserved or undeserved? To not take credit where credit is deserved would seriously impede most notions of justice and equity, not to mention require a revolutionary change in bureaucratic behavior. However, to a certain extent, intelligence agencies do go quite far toward self-referral or self-arrest, requiring self-reporting of such things as the following:

Contact with foreign entities is perhaps the most serious of these, and actually, the National Institute of Health probably has the best policies in this regard. However, it's not just foreign officials to be mindful of, but domestic ones as well. At least that's the purpose behind the Hatch Act of 1939 (Title 5 USC 7321) which prohibits the involvement of federal employees in political activities. Military employees are regulated differently than civilian employees, and most states have their own version of the Hatch Act, but the message is clear -- no government employee should be involved in any "apparent" conflict of interest by engaging in any political "partisanship."

The United States ought be able to depend upon its intelligence officers to be persons of high ethical standards. It must also be the kind of nation that benefits from hindsight and learns from its embarrassments. To accomplish both may require going beyond codes of ethics, and exploring the possibilities for a smarter, better, and more just intelligence service. This goal seems to be the objective of Shulsky & Schmitt (2002) who argue that American intelligence is evolving in this direction anyway. Over the years, American intelligence (as opposed to "traditional" intelligence) has given central importance to enhancing the analytic function over the collection function. Collection obviously drives the need for analysis, but more and more information is collected these days without the use of "secret" or clandestine sources. The major task at hand is how to "analyze" all the overload of information coming in. Secrecy may very well become a thing of the past, and with it the need for counterintelligence. Shulsky & Schmitt (2002) list the following as the characteristics of this emerging "American" intelligence:

Likewise, Lowenthal (2003) questions the need for maintaining expensive secrecy, especially as we spend more time nowadays in some "grey area" between war and peace. The media, the universities, the public, and private corporations (to name a few) are all going to want to be involved in the market for intelligence products one day, and in many ways, are anxious potential consumers. It might be safe to say we are living in some kind of "commercialization" or "civil" era for intelligence, and it remains to be seen if the new "openness" takes root. For a declaration of first principles in the area of intelligence ethics, most people would cite Barry (2004) as having put together the best list, so here it is, and it's a compellingly complete checklist of things to consider before launching an intelligence operation:

Whistleblower protection is important because sometimes there are just endemic problems that never seem to get fixed (or attention paid to them) unless somebody "blows the whistle" on it. For many years, an organization known as the Government Accountability Project, a non-profit, non-partisan public interest law firm that helps "whistleblowers" has been in the forefront of the whistleblower protection movement. GAP has led campaigns to enact, defend and monitor nearly all federal whistleblower laws, including the Whistleblower Protection Act of 1989 and state of the art corporate free speech rights under Sarbanes-Oxley. Numerous other organizations exist such as the National Whistleblower Center.

Perceptions of whistleblowers vary widely. Some see whistleblowers as selfless martyrs while others see them as "snitches." Persecution of whistleblowers is a serious problem throughout the world, and can be seen an an extension of the Shoot The Messenger phenomenon. The intelligence community has come a long way toward dealing with this problem, but there is still a long way to go. In the history of civilization, it took the concept of chivalry to put an end to shooting the messenger, and perhaps it may be worthwhile to reexamine that concept and others from history.

PRINTED RESOURCES
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Ignatieff, M. (2004). The Lesser Evil: Political Ethics in an Age of Terror. Princeton, NJ: Princeton Univ. Press.
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Last updated: Feb 12, 2008
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